On Dorf On Law, Neil Buchanan has posted an article, “When Shouid Liberals Try to Remove Judges From the Bench?” which didn’t interest me as much as the more general question, When should judges be removed?
Obviously, initiating impeachment out of ideological pique is a non-starter. Just as judges should be beyond political ideology once they take their seats, the safety of their seats should not depend on the ideology of those who can, in certain circumstances, terminate their tenure in those seats.
It seems to me that the sober legislator has at least two recognizable concerns about any particular judge:
Are they competent to the job?
Are their mental faculties up to the job?
These two questions appear to be the same, but are not. The first questions whether they have the skills, temperament, and ability to drop the ideology and simply interpret the law once they are in the seat. The second asks whether the judge is facing a decline in faculties, whether from natural causes or damage to the brain.
The second question might be answerable through medical and psychological tests, although I can see feisty judges dodging the issue.
But what of the first? I think the chief measure of a judge who is simply incompetent is the testimony of attorneys as to his inability to manage the mechanics of the job.
And what of ideology? Simply this: if his decisions continuously are overturned by superior court judges, never to be returned to his favor, it may signal someone seriously out of step with the general judiciary. Certainly, this may signal that all of the superior judges are compromised, but the odds are against it.
