Mr. KASTENMEIER. I think the committee and others will agree that the three of you constitute a remarkable resource in terms of discussion of this panoply of questions related to judicial discipline, tenure, et cetera. I will just ask one or two questions and yield to my colleagues. I may have some further questions at the end. I take it, to summarize—and may I say that the statements also of Judge Godbold as well as Judge Stapleton, as was the case with Judge Coffin, will be received in their entirety and made part of the record, and I would like to also receive for the record, offered for the record regarding judicial misconduct, a piece by Judge Harry T. Edwards, without objection. [Letter to Hon. Robert W. Kastenmeier (April 18, 1989) and the article by Judge Edwards follows:] HARRY T. EDWARDS UNITED STATES CIRCUIT JUDGE UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT April 18, 1989 The Honorable Robert Kastenmeier Chairman, Subcommittee on Courts, Intellectual Dear Congressman Kastenmeier: This letter is to follow up on our conversations regarding my concerns about the April 27, 1989 Hearings before your Subcommittee on several bills amending the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. These bills include, among others, H.R. 1620, the Judicial Discipline and Impeachment Reform Act of 1989. My concerns, which I believe are shared by many of my judicial colleagues, involve most of the subjects covered by these bills, from general matters affecting the regulation of judicial misconduct to the specifics of impeachment itself. My primary difficulty with these bills is that, to the extent that they purport to regulate judicial misconduct that does not amount to impeachable behavior, there are a good number of judges, myself included, who not only oppose them but find them to be unconstitutional. This is because such congressional provisions disregard the Constitution's separation of powers doctrine and discount its fundamental precept protecting the independence of the judiciary. See, e.g., Edwards, Regulating Judicial Misconduct and Divining "Good Behavior" for Federal Judges, 87 Mich. L. Rev. 765, 766-72, 787-93 (1989). I am particularly concerned that this position will go unrepresented in the Subcommittee deliberations. I recently spoke with former Judge John Godbold, Director of the Federal Judicial Center, who will be testifying at the Hearings, and he made clear that he favors the proposed amendments. In his view, Congress should increase its intervention into internal judicial affairs in order to fill the gap left by past inadequacies in the judiciary's self-regulation apparatus. After speaking to Judge Godbold, and considering the support he cites for his position, I remain convinced that his approach is wrong both in premise and analysis. Moreover, after the numerous calls and letters I have received from judges in response to the above cited law review article, there is reason to doubt whether Judge Godbold's position reflects the consensus viewpoint among the federal judiciary. The Honorable Robert Kastenmeier To begin with, it is clear that the judiciary always has held the constitutional authority to self-regulate. See Edwards, supra, 87 Mich. L. Rev. at 788. Even the examples cited to me by Judge Godbold as evidencing a need for legislative intervention involve matters that could be efficiently handled within the judiciary absent the 1980 Act -- indeed, that were so handled before the 1980 Act's inception. This fact cannot be disposed of with the charge that the judiciary has not met this responsibility consistently; the judiciary, like Congress, always has adjusted its methods as warranted by changing circumstances. Perceived public mistrust of the judicial branch would, no doubt, expedite the use of extant machinery. Second, it is not at all clear that intensifying legislative directives will in fact achieve the desired result of enabling the judiciary to better manage its misbehaving members. On the contrary, there is evidence to suggest that the 1980 Act itself has had a restrictive effect on the judiciary's ability to discipline its members. The Act's requirement that only its own extensive formal procedures be followed, rather than the informal means employed before the Act's inception, in many instances actually restricts the judicial policing function. See id. at 791-93. Finally, the empirical data collected from the judicial circuits on their experiences under the 1980 Act reveal that the formalized procedures mandated by the Act, designed to encourage complainants, have not necessarily encouraged the complainants the Act had intended. In fact, most complaints have been made by disappointed litigants who have lost cases before the accused judge. Furthermore, reports from each circuit submitted to the United States Judicial Conference in 1987 show that between 88% and 99.5% of complaints filed in each circuit were dismissed as patently frivolous, or falling outside the jurisdictional scope of the Act. Id. at 789-90. Thus, the true effect of the 1980 Act has been to burden an already overtaxed judiciary with the processing of a huge number of frivolous charges, without doing much to unearth real judicial misconduct. I recognize that many in Congress believe that the Constitution's impeachment standard is an inadequate vehicle for carrying our nation's judicial disciplinary mandate into the twenty-first century. Although I believe impeachment is a crucial instrument for protecting the independence of the judiciary, I understand that those who oppose it make some valid points. Congress cannot circumvent the strictures of the impeachment clause by mere legislative action that purports to "authorize" disc plinary action against misbehaving judges. In the same way But The Honorable Robert Kastenmeier the courts have respected the authority of Congress to discipline its own members, so must Congress respect the right of the judicial branch to manage its own affairs (except in cases involving impeachable conduct). Unless and until the Constitution is amended, impeachment remains the only legal method of legislative regulation of the judiciary under our Constitution. If a judge can be made to answer outside of the criminal and impeachment processes for judicially related activities, pursuant to a congressional act purporting to regulate judicial "misconduct," the sanctity of separation of powers and the inviolability of judicial independence will be seriously threatened. Any congressional action that undermines this truth has grave implications for the future of the judiciary and for democracy as we know it. I am not aware whether arrangements have or will be made to find another witness to testify at the Hearings who will amplify the views expressed in this letter. At a minimum, I would appreciate it if you would incorporate this letter and the law review article I cite into the record of the Hearings. If you need additional information, I hope you will not hesitate to call. Thank you for your consideration. With best wishes, Sincerely, 151 Harry T. Edwards The Hon. William H. Rehnquist, Chief Justice The Hon. Patricia M. Wald, Chief Judge The Hon. Walter K. Stapleton U.S. Court of Appeals for the Third Circuit The Hon. Frank A. Kaufman U.S. District Court for the District of Maryland The Hon. John C. Goldbold, Director Federal Judicial Center Michael Bemington, Esq Ralph L. Mecham, Director Administrative Office of the United States Courts |