Pulling Tenured Judges Off the Bench: Should Presidents Do It?

Who has been told to leave the United States Supreme Court bench at the President’s virtual say-so? I’ve heard of three. Are there others?

  • Arthur Goldberg, reportedly by his acceptance of the President’s offer of the ambassadorship to the United Nations with the objective of helping to end the war in Viet Nam; but, according to the then-former Justice, the President never returned his phone calls made while Ambassador.
  • Tom Clark, reportedly through the President’s appointment of his son, Ramsey, as Attorney General so that the father would have to recuse himself from many Federal cases, thus, unless he resigned, interfering with the Court’s ability to decide on and set precedent with cases without tie votes; he resigned.
  • Abe Fortas, reportedly when he had engaged in conduct that was presumably lawful but financially corrupt and information about that conduct was delivered at the President’s behest to the Chief Justice.

Each was succeeded by a Justice nominated by the President who arranged the departure.

While President Franklin D. Roosevelt lost political capital over his plan to add Justices, often called the court-packing plan, I’m not aware of any major political cost paid by either President Lyndon B. Johnson or President Richard M. Nixon for the above. Both of the latter lost their jobs, but for other reasons, not this.

In each case, the replacement Justice was presumably more to the President’s liking, and thus the removal on the President’s advice raises an issue of judicial independence and the appropriateness of the exercise of Presidential power.

While we’re at it, how about lower Federal judges? Did Congress essentially force any to leave, other than by impeachment (impeachment being highly visible and a proper procedure by law)? Three States have lifetime tenure for any of their judges; has the Executive or Legislative branch of those States essentially forced any of those judges off the bench without impeaching them?

Is it a good idea for a President to do this? It’s within the law; but is it consistent with judicial independence and thus the ability to decide cases without reference to the political party in power in either of the other two branches? Should talent off the bench be passed over because it would cause a conflict of interest for someone on the bench? Should talent on the bench useful elsewhere be passed over because it is on the bench with tenure intended for public benefit? Should there have been stronger controls to discourage corruption even if lawful (perhaps stronger controls are in place now but I don’t know that and that wouldn’t change the President’s range of political authority, only whether there’d be disturbing corruption that might come to the President’s attention)?