When Madison wrote about a judge’s tenure being “for good behaviour,” he said that its advantages were “obvious.” And so they must have seemed to the other Framers of the Constitution, because all the plans submitted during the course of the Convention called for terms of “good behavior,” and that tenure received universal approbation. During the whole of the Convention, not a single voice or a single vote deviated from the original proposal to make the judges’ term “during good behaviour.” The only question to arise on this issue was the dispute over the best way to remove a judge if his behavior was not “good.”
Elbridge Gerry started the discussion of this subject on August 20, when he suggested that a committee (one that had already been appointed) be instructed to report on “a mode of trying the supreme judges in cases of impeachment.” At this stage in the Convention it had already been determined that the trial of all other impeachments would take place in the Supreme Court, so some other body would be needed to try Supreme Court judges after they were impeached. Two days later, the committee reported that “judges of the Supreme Court shall be triable by the Senate, on impeachment by the House of Representatives.” Eventually, the Framers (after stipulating that a conviction would require two-thirds of the Senate) would decide that this would be the mode by which all federal officials would be impeached and tried.
On August 27, John Dickinson urged a more expeditious way of removing federal judges: “that they may be removed by the executive on the application by the Senate and House of Representatives.” Presumably, this mode would require only a majority vote in each House and a summary firing by the president. Dickinson’s motion was not a radical idea at the time. Several state constitutions had established courts in which judges served for “good behavior,” yet these same judges were also subject to a precipitous removal process known as “address.” This removal process sometimes required no more than a simple vote in the legislature. Some states involved both the legislative and the executive departments in this process or required a supermajority in both branches of the legislature, but other states made it very easy to remove judges. Dickinson’s home state of Delaware had one of the most effortless modes of removing judges: by a simple vote of only the General Assembly.
Morris objected to Dickinson’s perceived assault on the independence of federal judges. He “thought it a contradiction in terms, to say that the judges should hold their offices during good behavior, and yet be removeable without a trial. Besides, it was fundamentally wrong to subject judges to so arbitrary an authority.” Rutledge pointed out another difficulty: The Supreme Court would sometimes be called upon “to judge between the United States and particular states.” If all federal judges, including Supreme Court judges, could be so readily replaced by Congress and the president, then the Supreme Court could never be trusted to judge impartially between the state and federal governments. All of these objections could be reduced to one simple concern over preserving the independence of the three branches of government. As Randolph argued, it would be “weakening too much the independence of the judges,” something that they all agreed was a necessary feature of good government. When Dickinson’s motion came up for a vote, only Connecticut voted in favor of the change.