The federal judicial branch has lately become the object of increasing scrutiny and distrust by its legislative counterpart. Congressional suspicion is often directed toward judicial discretion in criminal sentencing and, more generally, the degree to which judges are perceived to be beholden to a particular ideological point of view or personal bias. This distrust has bred a potent strain of political opportunism that Congress has manifested in several recent bills. One of these, the Feeney Amendment to the PROTECT Act, all but eliminated judicial discretion in sentencing and tacitly threatens judges' continued employment. Though the Supreme Court's recent decision in United States v. Booker invalidates certain sections of the Feeney Amendment and appears (for the moment) to vest significant sentencing discretion back in the judiciary, that decision has already inflamed congressional ire and will only strengthen Congress's resolve to enforce vigorously the surviving portions of the Feeney Amendment to maximize its control over the judiciary. Similarly, Congress is considering legislation that would disavow citation in judicial opinions to foreign legal sources. The consequences to maverick judges who disregard the congressional will about what should not be written into American case law are not yet clear, but some in the House of Representatives have already suggested that removal from office is a distinct and viable possibility. There are frequent calls, particularly from certain voices in the House, for "judicial accountability" for decisions that are controversial, politically debatable, or otherwise purportedly not in keeping with popular opinion.
The natural progression of these tendencies may or may not be toward more frequent impeachment of federal judges; the central claim of this article is that it is nevertheless probable that the future holds more threats of removal. This article explores the use of threats of removal against federal judges and why their incidence is likely to increase. In Part I, after presenting the textual sources authorizing judicial removal, I survey briefly the history and quality of certain judicial impeachments and threatened removals. In Part II, I examine two recent pieces of legislation, the Feeney Amendment and House of Representatives Resolution 568 (which has not yet been enacted), that serve as able vehicles for legislators to threaten judges with removal for noncompliance with certain political ideologies or objectives. In Part III, I ask what may explain the increased prevalence of threats of removal by legislators against judges. In answer, I advance two theories, the first of which posits that the threat of judicial removal is a perfectly rational choice for legislators given the power structure between the branches as it has developed in modern times; therefore, such threats will become an increasingly frequent occurrence even though they are not necessarily followed by impeachment. The second explanatory theory is based on the growing public perception (from within and outside the legal profession) of the judiciary as incapable of credibly performing its judging function. I argue that some of the traditional beliefs about the role of judges have been irremediably undermined by a culture that deems criticism, in as great an abundance as possible, a paramount virtue. I submit that the legislature has capitalized on both the popularity of judicial criticism and the lack of public confidence in the judiciary to advance its own political ends. These two theories, working in conjunction, provide a basis for understanding the increased incidence of legislative threats of removal against judges and for the belief that the present sociopolitical climate will conduce to more frequent and forceful threats of removal in the future. After considering and rejecting several commonly voiced remedies for the current state of congressional and public hostility toward the judiciary, I conclude in Part IV that the relationship between the legislative and judicial branches will continue to deteriorate, and that congressional threats of removal will play an increasingly central role in this dissolution.