how to remove a supreme court justice

how to remove a supreme court justice

how to remove a supreme court justice

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how to remove a supreme court justice,

Because justices receive lifetime appointments, removing one is harder than just calling up someone and firing them. In order to remove one, you have to impeach them.
The process is the same as impeaching the president of the United States. The House of Representatives would vote on whether to impeach the justice in question. If the justice is impeached, there would be a Senate trial.

The House needs only a simple majority to impeach a Supreme Court justice or any federal judge. To convict and then remove the justice or judge, the Senate requires a two-thirds majority.

What is judicial impeachment?

Impeachment is a process by which the political branches of government – usually the legislature – can remove judges from office. Because the impeachment power lies primarily in the hands of politicians, it is at times threatened for partisan reasons, but the impeachment and removal of judges is in fact rare and usually limited to grave ethical or criminal misconduct such as perjury, fraud, or conflicts of interest.

how to remove a supreme court justice
how to remove a supreme court justice

How does the impeachment process work?

federal  and state constitutions provide different mechanisms for impeachment of judges, but impeachment is generally a two-step process.

With respect to federal judges, under Article I of the United States Constitution, the House of Representatives has the power to impeach, and the Senate the power to hold a trial to determine whether removal is appropriate. The House can impeach a judge with a simple majority vote. However, a judge may only be removed from office following a trial and a vote to convict by a two-thirds majority of the Senate.

Most states’ procedures for the impeachment and removal of judges are similar to the federal approach (see Pennsylvania, for example), requiring a majority vote of the lower house in the legislature and a two-thirds vote of the upper house. But in some states (including New York and Nebraska), the trial following impeachment is conducted by a court comprised of state officials and/or state judges. And in others the number of votes required to impeach or convict differs.

Federal Judges

Article III of the Constitution governs the appointment, tenure, and payment of Supreme Court justices, and federal circuit and district judges. These judges, often referred to as “Article III judges,” are nominated by the President and confirmed by the U.S. Senate. Article III states that these judges “hold their office during good behavior,” which means they have a lifetime appointment, except under very limited circumstances. Article III judges can be removed from office only through impeachment by the House of Representatives and conviction by the Senate. The Constitution also provides that judges’ salaries cannot be reduced while they are in office. Article III judicial salaries are not affected by geography or length of tenure.  All appellate judges receive the same salary, no matter where they serve. The same is true for district court judges.

how to remove a supreme court justice
how to remove a supreme court justice

How to remove Brett Kavanaugh without impeaching him

The paper, “How To Remove a Federal Judge” by law professors Saikrishna Prakash and Steven D. Smith, lays out a road map for, well, how to remove a federal judge without resorting to the impeachment power. It argues that a provision of the Constitution stating that federal judges and justices

“shall hold their offices during good behaviour” is widely misunderstood.

Contrary to the “virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge,” Prakash and Smith argue that the term “good behavior”

is a legal term of art that would have been understood by the founding generation to allow judges to be removed by “judicial process.”

Prakash, a professor at the University of Virginia, is a former law clerk to Justice Clarence Thomas. Smith, a professor at the University of San Diego,

is a frequent contributor to conservative and libertarian publications. So even if the paper did not precede the Kavanaugh hearings by more than a decade,

it would be difficult to argue that it was published in order to lay the groundwork for a liberal victory over a conservative Supreme Court justice.

The paper, which was published in one of the legal academy’s most prestigious journals but has had little impact on public policy so far,

could wind up becoming important if Democrats capture Congress and the White House in the 2020 election.

As a result on Saturday, the New York Times published a report bolstering the allegations against Kavanaugh.

How to remove Brett Kavanaugh without impeaching him

The Times says that its reporters “found Dr. Ford’s allegations credible during a 10-month investigation” and that “at least seven people” corroborated a second allegation,

by Kavanaugh’s Yale classmate Deborah Ramirez,

who says that Kavanaugh “pulled down his pants and thrust his penis at” Ramirez without her consent. He has denied both allegations.The report also revealed new allegations that Kavanaugh allegedly attended a drunken dorm room party in college “where friends pushed his penis into the hand of a female student” —

although this third story is attributed to an alleged eyewitness and “the female student declined to be interviewed and friends say she does not recall the episode.”

The Times report, adapted from the forthcoming book The Education of Brett Kavanaugh: An Investigation, sparked calls for Kavanaugh’s impeachment, including from at least four presidential candidates.

But impeachment is a paper tiger. To remove Kavanaugh via impeachment, two-thirds of the senators present for such a vote would need to vote against Kavanaugh. And the Senate is malapportioned in ways that favor Republicans — in the current Senate, Democrats represent about 15 million more people, but Republicans control 53 percent of the seats.

Barring a historic political realignment, in other words, there is virtually no chance that there will ever be 67 senators who will vote to remove Kavanaugh. But, if Prakash and Smith are right about the Constitution’s good behavior clause, there won’t necessarily have to be.

how to remove a supreme court justice
how to remove a supreme court justice

Can a Supreme Court justice be removed?

If you were watching the confirmation hearings of U.S. Supreme Court nominee Brett Kavanaugh and, for no particular reason,

were wondering if it was possible to remove a Supreme Court justice after he was confirmed to his lifetime appointment,

the answer is yes. The framers of the U.S. Constitution included a process to do just that. That said, it has never really been done successfully. Yet.

This means that the justices hold office as long as they choose and can only be removed from office by impeachment. The only Justice to be impeached was back in 1805, when Associate Justice Samuel Chase–who

was appointed by President George Washington–was accused of allowing his political views to interfere with his decisions and “tending to prostitute” the court and his position. (You can read the riveting account on the U.S. Senate’s website.) The House of Representatives passed Articles of Impeachment against him, but he was acquitted by the Senate.

However, the threat of impeachment proceedings has led to the resignation of a justice: In 1969,

Supreme Court Justice Abe Fortas resigned before he could be impeached for taking $20,000 a year for life from the family of a Wall Street titan in jail for SEC violations.

As a 2010 story in the Washington Post points out, people on both sides of the political spectrum have for years called for justices to be impeached–from Chief Justice Earl Warren to Justice Clarence Thomas to Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor. None have succeeded.

Supreme Court Justices

The nine justices of the U.S. Supreme Court are nominated by the president and confirmed by the U.S. Senate. They hear cases and controversies arising under the Constitution or U.S. law and controversies that involve the United States as a party of entities and parties of different states,

moreover that are appealed from federal courts or state courts.

Court of Appeals Judges

Court of Appeals judges, also known as circuit judges, sit in one of the 12 regional circuits across the United States,

or the Federal Circuit. They usually sit in a panel of three judges and determine whether or not the law was applied correctly in the district court, also known as trial court,

as well as appeals from decisions of federal administrative agencies and some original proceedings filed directly with the courts of appeals.

how to remove a supreme court justice
how to remove a supreme court justice

District Court Judges

District court judges sit in one of 94 district or trial courts across the United States. They handle civil and criminal cases. A district court judge typically is responsible for supervising the pretrial process and conducting trials, which includes a variety of procedures including:

  • managing the selection of juries and the instructions jurors receive throughout a trial;
  • ruling on admission of evidence;
  • pleas in criminal cases;
  • resolving any issues surrounding the acceptance of the verdict and entry of judgment; and
  • sentencing the defendant if a trial results in conviction.

Learn more about district courts from the following resources:

  • Civil Cases
  • Criminal Cases
  • Federal Judicial Center U.S. District Court History and Information

Senior Judges

Article III judges who have met age and service requirements set by federal statute are eligible to take senior status if

they are at least 65 years old and have served at least 15 years on the bench,

or any combination of age and years of service thereafter that equals 80. Regardless of age,

judges must serve at least 10 years to qualify for senior status.

Upon taking senior status, judges may choose to handle a reduced caseload. Senior judges handle about 20 percent of the total district and appellate caseload. By taking senior status, even if maintaining a full caseload,

a judge creates a vacancy on the court, to be filled by the nomination and confirmation process for Article III judges.

Senior judges receive the salary of their position at the time of taking senior status as an annuity.

Because there is no mandatory retirement age for Article III judges, there is no requirement that they take senior status.


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