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Interpreting and Preserving the Constitution
century who were convicted on articles of impeachment which charged
them with misconduct that did not amount to a violation of a criminal
statute. The argument has been made in other impeachment trials, however, that to be impeachable, the conduct complained of must constitute
an indictable offense.
On the other hand, it has also been argued that Federal judges may be
removed by means other than impeachment. They serve only during
‘‘good behavior,’’ and it is therefore open to Congress to define ‘‘good
behavior’’ and establish a mechanism by which judges may be removed.
By this reasoning, Congress could remove Federal judges either by impeachment (for high crimes and misdemeanors) or by some other method
(for ‘‘bad’’ behavior). Legislation has frequently been introduced to effect
this idea since the 1930s, but it has never passed. All the same, Congress
has adopted legislation which authorizes a judicial conference to discipline and incapacitate inferior Federal judges. The Supreme Court has
declined to rule on the constitutionality of this procedure, which allegedly conflicts with the separation of powers. Whether Federal judges
may be removed by a non-impeachment method is indeed a question of
considerable interest that could ultimately place the Supreme Court in
the awkward position of having to rule on its own tenure.
By prohibiting Congress from reducing the salaries of Federal judges,
the Framers sought to protect them from retribution and revenge for
handing down unpopular opinions, and to discourage legislative interference while a case was in progress. An angry Congress bent upon punishing a judge or group of judges financially can at best freeze the salaries
of all the judges—an unsatisfactory and indiscriminate means of judicial
control that has rarely been advocated. Designed to secure the independence of the judges, the prohibition against the diminution of judicial salaries has presented little controversy or litigation. Congress is also prohibited from reducing the salary of the President while he is in office, but
unlike the Judiciary, Congress cannot increase it either.
b. the judicial power
The independence of the Judiciary with respect to the powers it exercises
is substantially limited, however, by federalism and the check and bal-