Scire Facias (that OTHER check on the Federal Judiciary)

In light of the recent Judicial Recusal scandals, other judicial scandals, Alan Albright’s IP circus and the many abuses of the late Manuel Real, the late Stephen Reinhardt and sexual misconduct abuses by various judges.

While impeachment and removal from office is one method of removing Federal Judges, it was never meant to be the only one.

The clue is the very fact that the Constitution requires that Article III Judges serve during good behavior. It does not use the word life, but good behavior.

At English Common Law, beginning in the 1300’s (and in the American Common Law since 1776) Officers of the Crown, including judicial officers could be removed by means of the Writ of Scire Facias. The American Common Law has never changed in this regard.

Scire Facias is a writ requiring a person to show why a judgment regarding a record or patent should not be enforced or annulled.

The Commission of Office by which a President formally appoints a Judge to office is at its core a letter patent, which is what would be annulled under a Writ of Scire Facias.

Good Behavior is a far lower bar than High Crimes and Misdemeanors. Good Behavior can be breached by behavior or actions that would not come close to being High Crimes and Misdemeanors.

My proposal would add new statutory language to the existing Chapter 16 of Title 28 of the United States Code, which currently governs judicial discipline. It would establish three possible modes of breach of good behavior.

  1. A felony conviction in State or Federal Court would automatically trigger removal proceedings.

  2. A finding of abuse of power or misbehavior (sexual harassment, etc.), could lead to removal proceedings if of a serious enough nature.

  3. A finding of mental incompetence or mental issues would trigger removal proceedings, though in this case, the afflicted Judge would not be at risk of losing his pension.

When the Judicial Conference makes a finding in one of those categories, they would forward their records to the Justice Department, who would Petition for a Writ of Scire Facias directed at the defendant Judge. Proceedings would go before a three Judge court under the rules of Equity. Such court would conduct fact finding if necessary. The consent of all three Judges would be required to consider a fact proven. The court would then weigh the equities to see if the proven facts amount to a breach of Good Behavior sufficient to warrant removal from office. All three Judges would have to concur to remove a Judge from office. However, before that happened, the defendant Judge would have an automatic appeal of right to the Supreme Court.

This is perfectly Constitutional and does not abridge Judicial independence in anyway, since it is the Federal Judiciary itself which would have final authority to remove a Judge.

It would not effect the impeachment process and potentially the two processes could occur in parallel.

It is quite possible a Judge could survive impeachment but be removed by Writ of Scire Facias or vice versa.

Perfectly Constitutional, as it comports in full with the common law that existed when the Constitution was adopted.


I like it except for this one being discretionary.

Using the example of the recent recusal scandal.

Some Judges had only one occurrence of a conflict of interest. A single negligent incident does not constitute a breach of good behavior sufficient to warrant removal from office.

One Judge, Rodney Gilstrap, had 138 incidents. That clearly shows a pattern of willful indifference that could constitute a breach of good behavior sufficient to warrant removal from office.

So there should be some selectivity in which cases are referred for proceedings under Scire Facias.

Subjective. Who will decide?

All this is subjective at some level.

Under the current rules, subjective determinations are made on whether a particular Judge needs to be referred for impeachment proceedings.

And when the three Judges are “weighing the equities” to determine if a Judge should be removed from office, that is essentially a subjective process. Pretty much the same as with determining a criminal sentence, a process that can be highly subjective.

Unfortunately, it is impossible to approach the law in a totally objective way.

One reason why I would have a three Judge panel decide things, rather than a single Judge.

fairly certain if scotus chose to exersize this authority they could and nothing could be done about it. nothing needs to be changed for them to do this. i also believe they would have original jurisdiction in such cases

The judiciary policing itself.