Effective Removal of Article III Judges: Case Suspensions and the Constitutional Limits of Judicial Self-Policing
Under the Judicial Conduct and Disability Act of 1980 (JCDA), it falls to federal judges in each circuit to investigate and redress complaints about their colleagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act—most recently, Judge Pauline Newman in the Federal Circuit—have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. No court has invalidated a suspension on this basis so far. Yet courts have reserved the question taken up here, namely whether a long-term suspension could, by its practical effect, cross the line into removal.
Returning to first principles, this Comment develops and defends a bright-line rule for conceptualizing effective removal. Article III vests federal judges with the power to decide legal cases and controversies within limits set by the Constitution and Congress. Individual judges are not entitled to dockets of any particular size or scope. Yet possessing some measure of case-deciding power is a necessary condition for holding judicial office. It follows that a judge does not hold office if she does not wield any judicial power, as when a categorical prohibition on hearing cases eliminates her entire docket. When a case-suspension sanction under the JCDA even temporarily has that effect, disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office.
After crystallizing the concept of effective removal, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA even in compelling cases; assesses the risk that the Act’s case-suspension provision could be abused to effectively remove judges for improper reasons; and ultimately proposes a targeted amendment to the provision that would foreclose the possibility of effective removal and conform the Act’s scheme of judicial self-discipline to the Constitution’s separation of powers.