Bench Memos

NRO’s home for judicial news and analysis.

The Perennial Publius, part 79


How are independence and responsibility to be balanced in the design of the federal judiciary?  On the one hand, the judges wield a power that is not naturally very strong: passive more than active, confined to narrow particulars of adjudication, and vulnerable to being pushed around by a legislature on which it is dependent for much of its jurisdictional and remedial authority.  On the other hand, the courts can accomplish great injustices, both to particular parties and to society at large.  Responsible for the most highly specialized of the basic functions of government, the courts have a peculiar claim on our attention even where their mere competence is concerned.  And the permanent tenure of the judges–the foremost source of their strength and independence–might turn into a problem if any of them turn out irresponsible or incompetent.

Alexander Hamilton deals with all these matters in the very short Federalist No. 79.  As to the further bolstering of the judges’ independence, Hamilton notes the provision of the Constitution that permits their pay to be increased but never decreased.  The framers had heard of inflation, and the judges’ situation differs from that of the four-year presidency (see No. 73).

As for the “precautions for their responsibility,” Hamilton remarks that the judges “are liable to be impeached for mal-conduct,” but here he says no more about what might constitute such grounds for removal.  Instead he briefly discusses the Constitution’s omission of any means of removing a judge for “inability.”  If ability is considered a matter of legal knowledge or skill, then it would be dangerous to make “inability” a ground of removal, which would merely “give scope to personal and party attachments and enmities.”  If, on the other hand, we worry about an outright “case of insanity,” Hamilton seems to indicate that this would be a proper ground of removal “without any formal or express provision” in the Constitution.  In other words, he offers a tacit understanding that the impeachment power can be justifiably stretched to cover the case of the insane, even if the Constitution’s language doesn’t quite support it.  This was prescient on Hamilton’s part: the first impeachment of a federal judge was precisely on these grounds, when the House prosecuted and the Senate removed John Pickering of New Hampshire in 1804.

Pickering was an alcoholic, and he may have been senile as well (though he was younger than 70).  So what about judges who simply serve for too long and are no longer up to the job?  Should there be a mandatory retirement age for federal judges?  Hamilton pooh-poohs the “imaginary danger of a superannuated bench,” asking his reader to “consider how few there are who outlive the season of intellectual vigour.”  But if that was true in 1788, is it still?

(For explanation of this recurring feature, see here.)


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