This article explores the use of threats of removal against federal judges and why their incidence is likely to increase. In Part I, after presenting the textual sources authorizing judicial removal, I survey briefly the history and quality of certain judicial impeachments and threatened removals. In Part II, I examine two recent pieces of legislation, the Feeney Amendment and House of Representatives Resolution 568 (which has not yet been enacted), that serve as able vehicles for legislators to threaten judges with removal for noncompliance with certain political ideologies or objectives. In Part III, I ask what may explain the increased prevalence of threats of removal by legislators against judges. In answer, I advance two theories, the first of which posits that the threat of judicial removal is a perfectly rational choice for legislators given the power structure between the branches as it has developed in modern times; therefore, such threats will become an increasingly frequent occurrence even though they are not necessarily followed by impeachment. The second explanatory theory is based on the growing public perception (from within and outside the legal profession) of the judiciary as incapable of credibly performing its judging function. I argue that some of the traditional beliefs about the role of judges have been irremediably undermined by a culture that deems criticism, in as great an abundance as possible, a paramount virtue. I submit that the legislature has capitalized on both the popularity of judicial criticism and the lack of public confidence in the judiciary to advance its own political ends. These two theories, working in conjunction, provide a basis for understanding the increased incidence of legislative threats of removal against judges and for the belief that the present socio- political climate will conduce to more frequent and forceful threats of removal in the future. After considering and rejecting several commonly voiced remedies for the current state of congressional and public hostility toward the judiciary, I conclude in Part IV that the relationship between the legislative and judicial branches will continue to deteriorate, and that congressional threats of removal will play an increasingly central role in this dissolution.
Marc O. DeGirolami, Congressional Threats of Removal Against Federal Judges, 10 TEX. J. C. L. & C. R. 111 (2005).