The Clarence Thomas flap demonstrates a need to institute the check of scire facias on the Article III Judiciary.
Clarence Thomas clearly has not satisfied the high standard of high crimes and misdemeanors that would justify impeachment.
However.
What if he actually had?
OR
Whether a liberal justice satisfied the same standard while there was a Democratic House and Republican President?
The House of Representatives will not impeach even if he did meet the standard, because they would be handing Biden a gift.
And Democrats would behave the same way if a liberal Justice was involved and a Republican was President.
Impeachment is simply a dead letter at the Supreme Court, short of a Justice going bat â– â– â– â– crazy and killing someone.
But we still have check of scire facias, even if it has never been implemented.
In English law, a writ of scire facias (Latin, meaning literally “make known”) was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of letters patent and grants, the patent or grant should not be annulled and vacated.
The English common law, as it existed on July 4th, 1776, became the common law of the United States. The meaning of scire facias has not changed in that regard, though the formal writ has been abolished in Federal courts, replaced by civil proceedings.
As the Constitution incorporated the common law of the United States, scire facias has the meaning today that it had in 1787.
And most notably, Article III Judges are appointed to serve during good behavior. The founders did not use the term for life, but during good behavior, which is the determining factor for scire facias proceedings.
Good behavior is a far lower standard than high crimes and misdemeanors. Behavior that might not amount to a high crime and misdemeanor might broach good behavior. A prime example would be a pattern of sexual discrimination or sexual harassment by a judge against his staff. Not something that would be impeachable, but something that would be removable under scire facias.
Now how would proceedings under scire facias actually work.
There are three general scenarios.
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The Judge is convicted of a felony or a very significant misdemeanor or misdemeanor involving moral turpitude and the time for direct appeals has expired or direct appeals have been exhausted. In this case, removal from office would be fairly straight forward and expedited.
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The Judge is accused of misbehavior or a pattern of misbehavior. This obviously could take many forms, including sexual harassment, abuse of power, etc. The three judge court of equity hearing the case would conduct fact finding, with the concurrence of all three judges required for a fact to be proven. The Judges would then determine if the proven facts amounted to a breach of good behavior sufficient to warrant removal from office and the concurrence of all three judges would be required for removal.
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The Judge is accused/suspected of becoming mentally incompetent. Again, fact finding would be done as above and removal would be done as above. However, in this case, the Judge would be able to keep his retirement annuity as proceedings under this section would be considered prophylactic, not punitive.
In all cases, the Judge would have an automatic and direct appeal of right to the Supreme Court.
Because Judges would make the final decision, this would not compromise the doctrine of judicial independence.
Some recent examples.
Judge Kent. Convicted of numerous felonies and in jail, but refused to resign his judgeship immediately. The House impeached him, but thankfully he finally resigned under pressure rather than forcing a time consuming Senate trial.
Judge Porteous. Unfortunately, this jackass wouldn’t resign and forced the entire process to play out, ending with his removal from office and permanent disqualification.
In both cases, proceedings under scire facias could have gotten rid of these Judges a whole lot faster and without wasting Congress’s time on impeachment.
Then there are numerous cases of abuse of power. I will use the example of Judge Alan Albright, who abused the system to end up with fully 25% of all intellectual property cases (in the whole United States) in his court and who refused to grant change of venue, even when it was clearly warranted, requiring the Federal Circuit to repeatedly use mandamus orders to force those venue changes.
Then there was the very abusive behavior of the late Stephen Reinhardt and the late Manuel Real.
Congress neither has the time to police the judiciary, nor do the have the political ability to do so, except in rare cases such as Kent and Porteous.
Scire facias would essentially take Congress out of the mix, except in very rare cases.
I would note that in States such as Florida, the Judiciary is extremely successful in policing itself. Judges who screw up are promptly punished and removed from office if necessary.
We clearly need to bring this vital check on the judiciary back.
In the absence of a formal mechanism, I believe that courts may, sua sponte, conduct scire facias proceedings against a colleague.
The common law is what it is and courts may of right enforce it. A formal mechanism would be better.
