Mr. KASTENMEIER. Does the gentleman from California seek recognition? Mr. MOORHEAD. Yes. The first thing I want to do is to ask unanimous consent that the article in volume 76 of the Kentucky Law Journal by Robert W. Kastenmeier and Michael J. Remington be placed in the record. Mr. KASTENMEIER. Without objection. [The article follows:] Judicial Discipline: A Legislative BY ROBERT W. KASTENMEIER* AND MICHAEL J. REMINGTON** In 1980 the Congress adopted public law 96-458, the Judicial Tenure and Disability Act. This act has been largely ignored by the Federal judiciary.1 In the long run, Mr. President, it seems to me that some hard questions should be posed as to whether impeachment by the Congress is appropriate for Federal judges.2 I believe that the citizens of our country will agree that those who have been convicted of felonies should not occupy positions of trust and responsibility in our Government.3 I feel that the current procedure for impeaching Federal judges is unworkable." INTRODUCTION These statements, made by Senators in anticipation of or in response to the removal of Judge Harry T. Claiborne from office, signal a clear congressional concern about the health of * Member of Congress; Chairman of the House Committee on the Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice. LL.B., University of Wisconsin, 1952. The authors wish to thank Steven B. Burbank, Professor of Law, University of Pennsylvania, and Louis Fisher, Congressional Research Service, Library of Congress, for their constructive comments. Any mistakes, inisstatements, or omissions are the authors' own. ** Chief Counsel, Subcommittee on Courts, Civil Liberties, and the Administration of Justice. ' 132 Cong. REC. S8746 (daily ed. June 26, 1986) (statement of Sen. DeConcini). 2 Id. at S16,789 (daily ed. Oct. 16, 1986) (statement of Sen. Dole). ' Id. at S7867 (daily ed. June 18, 1986) (statement of Sen. Thurmond). 133 CONG. REC. 4990 (daily ed. Apr. 9, 1987) (statement of Sen. Heflin); see Heflin, The Impeachment Process: Modernizing an Archaic System, 71 Judicature 123 (1987) ("I have concluded that our current impeachment rules were written for an era that has passed and a Congress that has changed."). 764 KENTUCKY LAW JOURNAL [VOL. 76 judicial discipline law, both that rooted in constitutional text and that contained in the statute books." The impeachment conviction of a sitting federal judge in 1986, the first in almost fifty years, rightfully magnified attention on the general subject of judicial discipline. Impeachment proceedings bring heavy political armaments into action and only occur rarely. Since the drafting of the United States Constitution two centuries ago, the House of Representatives has conducted only fifteen impeachments." Following on the heels of these impeachments, the Senate has conducted twelve impeachment trials. Only five have resulted in convictions and removals from office." The impeachment of a federal judge is the jagged tip of an iceberg; under the water and out of sight lies the larger mass of judicial discipline and ethics. In 1987, the Constitutional Bicentennial year, we rightfully celebrated the written document that serves as the charter of our government, noting the resiliency and flexibility of the text. We not only feted the past, but looked to the future. We applauded what was right about the Constitution and not what was wrong. The Claiborne impeachment and the Bicentennial, considered together, bring into focus both the resiliency and the fragility of our government charter. They lead us not into complacency, but to search for answers about what makes our system work. Our mission should be to reassess and not to react. If we are serious about preserving our democratic system of government, we should ask some tough questions. We should not ignore defects in the constitutional text in light of present day problems. Nowhere 'The Chairman of the House Managers in the Claiborne impeachment feels that the system worked well. Chairman Peter W. Rodino, Jr., observed: "the proceeding reaffirmed both the delicacy and durability-as well as the wisdom-of existing constitutional procedures." Rodino, The Compact with the People, 27 Santa Clara L. Rev. 471, 480 (1987). • Two civil officers-Judge Mark Delahay and President Richard Nixon-resigned from office before the Full House adopted articles of impeachment but after proceedings had started. Of the 15, 11 have been federal judges. In this Article, "impeachment" is used in the broadest sense to include the House power to engage in an impeachment inquiry and not merely the Senate trial and potential removal from office power. See STAFF OF HOUSE COMM. ON THE JUDICIARY, 93D CONG., 1ST SESS., CONSTITIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT 17 n.84 (1974). 1987-88] LEGISLATIVE PERSPECTIVE 765 are the questions more difficult than in the area of separation of powers and the accountability of high-ranking public officials. The debate about judicial discipline and ethics is not exactly a new one. Nor are proposals for legislative change and constitutional amendments. The very first Congress provided that a judge convicted of accepting a bribe "shall forever be disqualified to hold any office of honour, trust or profit under the United States." Heated debate arose in Congress during the impeachment proceedings of federal Judge John Pickering in 1803. The first constitutional amendment to establish a removal mechanism as an alternative to impeachment was introduced in 1791, and between 1807 and 1812 nine more constitutional amendments were proposed as a result of the impeachment and attempted removal of Supreme Court Justice Samuel Chase. In reaction to the last impeachment and removal from office of a federal judge (Judge Halsted Ritter) prior to the impeachment and conviction of Judge Claiborne, a number of constitutional amendments and statutory changes were proposed.10 Significant among these were the bills introduced by the Chairman of the House Committee on the Judiciary, Hatton Summers." Proposals to amend the Constitution have been short-lived, but they should be taken seriously as political barometers. Today, in the wake of the Claiborne proceedings, amendments and cries for congressional vigilance are again on the rise. 12 Proposals for change key into a loss of public confidence about the trustworthiness of all public officials, with that confidence thought to have eroded badly in the recent past.13 * Section 21 of the Act for the Punishment of certain Crimes against the United States of April 30, 1790. ' See The Judicial Tenure Act: Hearings on S. 1423 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 32 (1977). 10 See AMERICAN ENTERPRISE INSTITUTE JUDICIAL DISCIPLINE AND TENURE PROPOSALS (1979), reprinted in Judicial Tenure and Discipline 1979-80: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary, 96th Cong., 1st Sess. 507, 511-12 (1980) (hereinafter 1979-80 House Hearings]. " Id. at 512; see, e.g., 81 CONG. REC. 6164 (1937). 12 See S.J. Res. 113, 100th Cong., 1st Sess. (1987) (Heflin); H.R.J. Res. 364, 100th Cong., 1st Sess. (1987) (Klescka). "As was aptly observed by one of the sponsors of judicial discipline legislation |