776 KENTUCKY LAW JOURNAL [VOL. 76 Perhaps, in the near future, the Supreme Court will consider a constitutional challenge to the statute and lay to rest all doubts about any infirmities. Judicial autonomy. From a policy perspective, the 1980 Act certainly has neither disrupted the autonomy of the judicial branch nor affected its ability to function. The original costestimate of the Congressional Budget Office on the Act, prepared in reliance on data provided by the Administrative Office of the United States Courts, stated that the federal judicial branch would need fifteen additional staff positions to "process 2,300 complaints per year." From October of 1981-when the Act became effective-until June 30, 1987, 1153 complaints were filed." As was expected, the chief judges dismissed most of these complaints. During 1986-87 there were 232 complaints filed against judicial officers, a decrease of approximately twenty-six percent from the previous reporting year, when 312 complaints were filed.62 The 1987 statistics show that the allegation most often cited in complaints was that the officer had acted in a prejudicial or biased manner and that most complaints were resolved by the chief judges." To date, the judicial branch has not requested augmented staffing to meet the demands of the Act. If a budgetary need arises, Congress would most likely favorably treat a request for more resources. By way of comparison, the House Committee on the Judiciary received sixty-five complaints against judicial officersmore than any single circuit.65 Although the Committee does not act and is not required to act on every complaint, this large volume of complaints represents a substantial amount of work. Disgruntled litigants, dissatisfied with judicial decision-making and furious that their judicial discipline complaints were dismissed as being related to the merits of a decision, formulated many of the complaints. Nonetheless, the inverse relationship H.R. REP. No. 1313, supra note 42, at 21. Report of Complaints Filed and Action Taken Under Title 28 U.S.C. Section 372(c), 1987 Dir. Ad. Off. U.S. CTS. ANN. REP. 56 table 26. 62 Id. 6) Id. at 57 table 27. Id. at 56 table 26. See HOUSE COMM. ON THE JUDICIARY SUMMARY OF ACTIVITIES, 100th Cong., 1st Sess. (1987). 1987-88] LEGISLATIVE PERSPECTIVE 777 between the rising number of complaints filed with the House Committee and the decreasing number of complaints filed with the councils warrants close scrutiny in the years ahead. Statistics about the number of misconduct complaints filed against judges can be somewhat misleading. Many serious judicial problems have not been processed under the complaint mechanism but rather have informally been referred to the attention of the circuit chief judges. One knowledgeable commentator reports that "often, problems are solved without a complaint ever being filed."66 Oversight. The congressional oversight demanded in both the House and the Senate has been sporadic. During the 99th Congress, the House Courts Subcommittee and the Senate Constitution Subcommittee held oversight hearings.68 Key staffers have attended meetings held by the judicial branch. A significant amount of correspondence between members of Congress and representatives of the judiciary has occurred. Other external factors have had an impact on the functioning of the Act. Since 1980, three federal judges have been prosecuted for having committed federal felonies: two were convicted by juries of their peers; and the third was acquitted. In 1986, Judge Harry Claiborne was impeached and removed from office by the United States Senate for having violated three (of four) articles of impeachment. Judge Walter Nixon has been convicted. Having exhausted all direct appeals, he presently is the subject of an impeachment inquiry by a House Judiciary subcommittee. Although Judge Alcee Hastings was acquitted, the Judicial Conference found that grounds for impeachment may be warranted and transmitted this determination to the House of Representatives. An impeachment inquiry by another House Judiciary subcommittee is ongoing. "Fitzpatrick, Misconduct and Disability of Federal Judges: The Unreported Federal Responses, 71 JUDICATURE 282, 283 (1988). "See Federal Judicial Branch: Oversight Hearing Before the House Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the Comm. on the Judiciary, 99th Cong., 1st Sess. (1985). 68 See Judicial Discipline: Hearing Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 99th Cong., 2d Sess. (1986) [hereinafter Senate Hearing on Judicial Discipline]. 778 KENTUCKY LAW JOURNAL [VOL. 76 The lessons of the Claiborne impeachment are instructive. The major message is that the framers crafted a process that has proved to be efficacious, durable, and flexible: efficacious in that impeachment works; durable in that the process withstands the test of time; and flexible in that a modern day impeachment can be molded to meet current procedural and institutional pressures. But, students of the Congress and of impeachment also must recognize that the process was exceedingly difficult to implement and then to operate in a timely and fair fashion. The Claiborne impeachment, which occurred at the very end of a busy Congress, caused members of the House and Senate to expend countless hours. The actual record reflects that the Senate devoted ten days of time (in the Committee of twelve)69 and approximately eighteen hours of actual floor consideration." According to the Senate Majority Leader, the floor proceedings took more time than all but the most major issues that the 98th Congress considered." In other words, the message about the Claiborne impeachment is a mixed one: the good news is that the system works; the bad news is that it is hard work. Under closer scrutiny, other lessons become apparent. Reliance on current constitutional provisions and parliamentary procedures in the future will make it difficult to create anything other than a case-by-case impeachment process. "Each case of impeachment necessarily must stand on the facts and findings adduced by the House of Representatives with respect to the case before it." The House, in drafting articles of impeachment against a convicted judge, may be able to take “judicial notice” in a legislative setting of factual findings made by a unanimous jury beyond a reasonable doubt. The Senate, however, by rejecting the third article of impeachment (which sought to impeach Judge Claiborne based on his felony conviction and the jury verdict), manifested an unwillingness to establish a fast * 132 CONG. REC. S15,482 (daily ed. Oct. 7, 1986) (statement of Sen. Dole); one day was for an organizational meeting; two days for pretrial argument; and seven days to hear testimony. The transcript of the hearings held by the Committee totals more than 3,500 pages. Heflin, supra note 4, at 124. * See 132 CONG. REC. S15,481 (daily ed. Oct. 9, 1986); id. at S15,759. " Id. at S16,788 (daily ed. Oct. 16, 1986) (statement of Sen. Dole). " H. REP. No. 688, 98th Cong., 2d Sess. 24 (1986). 1987-88] Legislative Perspective 779 track process.73 Simultaneously, the Senate confirmed past precedents by determining that a felony conviction is not necessary for impeachment. The fourth article of impeachment levelled against Judge Claiborne, for which he was found guilty," makes clear that the constitutional standard for impeachment exacts of judges the highest standards of public and private rectitude. The Code of Judicial Conduct and the oath of office serve as guides for defining an impeachable offense. If a judge does not "discharge and perform all duties incumbent on him," the judge may be impeached for "high Crimes and Misdemeanors" as those terms are used in the Constitution.75 In 1986, the House Committee on the Judiciary was presented with an impeachment question of first impression. A member of Congress delivered thousands of form petitions and miscellaneous letters calling for the impeachment of three judges of the United States Court of Appeals for the Eleventh Circuit for rendering a judicial opinion in the famous Alday murder case. None of the petitions alleged unethical or criminal activity; they merely requested an impeachment inquiry based on the allegedly irresponsible granting of a new trial on the basis of unfair pretrial publicity to three defendants previously convicted of murder. After a review of the petitions and the facts, a determination was made that federal judges should not be impeached for judicial decisionmaking—even if the decision is an erroneous one. A judicial decision (standing alone) does not rise to the level of a "high crime or misdemeanor." If this were otherwise, the impeachment remedy would become merely another avenue for judicial review." "The Senate rejected the "impeachment based on prior felony conviction" approach incorporated in the third article of impeachment by 46 Senators voting “guilty," 17 Senators voting "not guilty," and 35 voting "present." The necessary two-thirds vote therefore was not obtained. See 132 CONG. REC. S15,761 (daily ed. Oct. 9, 1986). 74 The Senate voted to convict Judge Claiborne on the fourth article-a "high misdemeanor" count-by a vote of 89 "guilty," 8 "not guilty," and 1 "present." Id. at S15,762. 75 U.S. CONST. art. II, § 4. 16 Petitions Circulate to Impeach Judges After Alday Ruling, Atlanta Const., Jan. 3, 1986, at 15A, col. 4. "Findings and Conclusions of Robert W. Kastenmeier on Citizen Petitions to Impeach Three Federal Judges (Sept. 25, 1986) [hereinafter Findings and Conclusions]; 780 KENTUCKY LAW JOURNAL [VOL. 76 Since enactment of the 1980 discipline Act, the federal court system has continued to grow by leaps and bounds.78 Today, it is not farfetched to envision a future judiciary with more than 1,500 lifetime tenured judges. With an attrition rate of approximately ten percent, as is currently the case, the Senate would have to confirm approximately 150 judges a year-or close to one judge each legislative working day. Having experienced three criminal prosecutions against federal judges in the recent past, a growing number of felony cases brought against sitting judges can be expected as judgeships are added to the judicial system. IV. PROPOSED LEGISLATION Seven years of operational experience under the 1980 Act reveal that the discipline mechanism basically sails smoothly, but to increase both effectiveness and efficiency, its jibs need tightening. Congress should seriously consider twelve changes. The proposed amendments, even considered collectively, will not amount to a total redesign of the Act. Eight of the proposed changes are refinements or clarifications of current statutory text. Four further amendments would be made to other sections of the United States Code, the first granting contempt power in discipline cases to circuit councils, the second amending the oath of office for federal judges, the third modifying the Ethics in Government Act,79 and the fourth increasing the authority of the circuit advisory committees of the circuit to assist in drafting discipline rules. Finally, Congress should create a national commission on judicial impeachment. Ouster of Judges for Rulings Denied, N.Y. Times, Oct. 26, 1986, at 31, col. 1. Chairman Peter W. Rodino, Jr., concurred with this determination. Letter from Honorable Peter W. Rodino, Jr., to Honorable Charles Hatcher (Oct. 14, 1986). "In 1984, Congress created 79 new federal judgeships, making a total of 752 lifetime tenured judges (counting the United States Supreme Court). Of the new judges, 55 were for the district courts for a total of 575 district judgeships, and 24 were circuit judgeships for a total of 168. See Pub. L. No. 98-353, 98 Stat. 346, 348 (1984) (codified at 28 U.S.C. § 44 (1984) (circuit judgeships) & 28 U.S.C. § 133 (1984) (district judgeships)). 79 Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified in scattered sections of 2, 5, 18, 28, and 39 of U.S.C.). |