[Daily Caller] Justice Ruth Bader Ginsburg’s difficulty in carrying out her judicial duties has encouraged informal wagering about whether she can continue until President Trump leaves office. This is in bad taste and overshadows recognition of her outstanding career.
The problem of justices outliving their judicial capacity has recurred throughout U.S. history. But it may be growing more acute, as advances in health care enable physical strength to outlive mental capacity.
We do not yet have a satisfactory mechanism for addressing the issue. No statute forcing justices to leave office would be valid because the Constitution specifies that they "hold their Offices during good Behavior." That’s a rough translation of the Anglo-Latin formula, "quam diu bene gesserit." It literally means "so long has he shall have conducted himself well." Justices serve until their death, retirement, resignation, or impeachment-and-conviction, whichever comes first.
One possible remedy is for family members or professional colleagues to pressure a failing justice into resigning or retiring. Another alternative is impeachment, conviction, and removal from office for "high ... Misdemeanors." In the constitutional context, this is a fiduciary standard, and is broad enough to include negligence or other breach of duty due to incapacity. |