- 9 In closing, let me repeat what I told a subcommittee of the Senate Judiciary Committee in testimony about Senator DeConcini's proposed constitutional amendment: [T]he present system is working. It simply is [Apart from the question of need for the Last summer Chief Justice Burger did request the Committee to Review Circuit Council Conduct and Disability orders to submit proposed rules for consideration by the Judicial Conference for the processing of certificates of probable cause for impeachment. You will recall that the Judicial Council of the Tenth Circuit had submitted such a certificate respecting a federal district judge who had been convicted of tax offenses. There had been no investigating committee and, of course, no order of the Judicial Council in review of the report of such a committee. It was thought that consideration of such a certificate was not within the delegated authority of this Committee, and that the matter should be handled by the full Judicial Conference. The request of this Committee was that it suggest rules governing consideration by the Conference of such a certification. Since then, a similar certification has been submitted to the Judicial Conference by the Judicial Council of the Eleventh Circuit respecting Judge Hastings. In that instance, there had been an extensive investigation by an investigating committee, and its report had been reviewed by the Judicial Council. Judge Hastings, however, filed no petition for review, and the matter came to the Judicial Conference only by the Judicial Council's certification. Again it was thought that the matter was not within the delegated authority of this Committee. This time, however, the matter was to be processed by an ad hoc committee, composed entirely of members of the Judicial Conference, that was to report to the Judicial Conference itself. Meanwhile, it was thought that this Committee should not submit proposed rules for the processing of such certificates by the Judicial Conference during the actual pendency of such a proceeding in the Conference. The Committee was requested to make no submission of proposed rules for the processing of such certificates before the September 1987 meeting of the Judicial - 2 Conference. The Committee will submit a proposed set of rules at that time, unless there is some further change in its instructions. Meanwhile, having determined that the Conference had no jurisdiction to review orders of judicial councils approving dismissals or terminations of complaints by chief circuit judges without having constituted an investigating committee, a number of petitions to review such orders have been administratively dismissed. The Committee has received only one petition to review an order of a circuit council upon consideration of a report of an investigating committee, though in that one case there were actually cross-petitions to review, one by the bankruptcy judge and one by the complainants. After receipt and consideration of extensive written arguments and responses, the Committee filed an opinion disposing of those petitions. This is the extent of our experience. Sincerely, Federal Judges: To Whom Must They Answer? by Thomas M. Boyd Impeachment is now the only way to remove federal judges, but because the process of impeachment is long and laborious, it is seldom invoked. The Constitution leaves room for a council within the federal judiciary to recommend discipline, perhaps even removal from office, to the Judicial Conference. The danger to liberty, the danger of maladministration has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who have violated the public trust. THOSE WERE the words of James Madison, spoken nearly two hundred years ago. The events of recent years have proved them to be as valid now as they ever were. The eighteenth-century creators of our Constitution, of whom Madison was one, were themselves well aware of the tyranny that is often produced by the unrestrained exercise of power. As a result, they had little use for a form of government that nurtured it. This political philosophy spawned a governmental system consisting of three branches, each checked and balanced by the others. The accountability of the judicial branch to this system, however, has diminished in practical effect during the past fifty years to an almost nonexistent level. So far the check that has been used has been impeachment, and that method has proved to be slow and cumbersome. The question then emerges: Is impeachment the only possible measure of discipline for federal judges? There are some of us who believe it is not. On October 17, 1974, Sen. Sam Nunn, Democrat of Georgia, introduced legislation, which was reintroduced in the Ninety-fourth Congress in February of this year, designed to establish a Council on Judicial Tenure within the judiciary itself. The basis for removal authority lies in Article III, Section 1, of the Constitution, which states: The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Office during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. [Emphasis added.] Senator Nunn's plan calls for the establishment of a council composed of one member from each of the federal circuits, one member from the Court of Claims, one member from the Court of Customs and Patent Appeals, and one member from the Customs Court. It would be the function of the council to receive and investigate each written complaint submitted by "any person" and relating to the conduct in office of any judge or justice of the United States. The council could dismiss the complaint as frivolous or unwarranted or it could recommend to the Judicial Conference of the United States disciplinary action ranging from censure to removal for conduct inconsistent with that required by the Constitution. After receiving a recommendation, the conference would then sit as a federal court to decide the case. Throughout this procedure all the rights of due process and confidentiality would be available to the judge or justice charged. Once a decision has been made by the conference, the judge or justice charged would be entitled, at his request, to review by the Supreme Court. Tydings Bill Forms Foundation Senator Nunn's bill is not the first of its type. Joseph Tydings, while a senator from Maryland, introduced legislation in 1968 and 1969 patterned after the successful California Commission on Judicial Qualifications. His proposal has served as the foundation on which Senator Nunn's newest endeavors have been built and was itself the product of more than four years of hearings and study. Cosponsored by Senators Eagleton, Goodell, Hatfield, Kennedy, Magnuson, Mondale, Muskie, Hugh Scott, Stevens, and Yarborough. the Tydings bill was supported by numerous legal experts during testimony before the Subcommittee on Improvements in Judicial Machinery. Among them were William H. Rehnquist, then assistant attorney general for the Justice Department's Office of Legal Counsel; Bernard G. Segal, then president of the American Bar Association; and Chief Judge Clement F. Haynsworth, Jr., of the Court of Appeals for the Fourth Circuit. Chief Justice Warren E. Burger also 324 American Bar Association Journal supported the concept in his confirmation hearings before the Senate Judiciary Committee in 1969. With the defeat of Senator Tydings in the 1970 November elections, though, the bill lost momentum and was never reported out of committee. There is little doubt that Senator Nunn's bill will undergo various procedural changes in the Judiciary Committee, to which it has been assigned. But the most significant objection that it will have to overcome will be posed by those who challenge the constitutionality of its misbehavior removal provision as an alternative to impeachment. Others will have to be convinced that its passage will not impair the necessary independence of the judiciary. It is appropriate, then, to examine the constitutional basis of that provision. Constitution Evolved from English Law The Constitution was written by men educated in the English legal system. That background played an important role in the evolutionary concepts that produced it. English judges, prior to 1700, were appointed by the crown to serve at its pleasure. This practice led to extensive royal interference in judicial functions and resulted in the swift removal of judges who strayed from the crown's pronounced policies. It was this type of de facto union of governmental branches to which Alexander Hamilton would later refer in The Federalist, Number 78, as the ultimate endangerment of liberty. In 1700 the Act of Settlement, as it came to be called, sought to limit royal control over the judiciary by requiring that judges be granted commissions during good behavior. Their removal could be accomplished only by joint resolution, or "address," of both houses of Parliament and recommendation to the king. Similarly, our Constitution does not grant life tenure. It restricts the tenure of judges and justices within the federal system to service during good behavior. But no mention is made of how to enforce that restriction. Article II, Section 4, provides that: The President, Vice-President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, and other high Crimes and Misdemeanors. A number of cases, the most significant being Myers v. United States, 272 U.S. 52 (1926), have held that the impeachment clause is not the exclusive method of removal for officials appointed by the president and confirmed by the Senate. Myers applied to executive officials only, saying that the president himself could remove such persons regardless of the sentiment of the Senate. Its applicability to judges was left open. Some have argued since that the presence of the "good behavior" language insulates judges from removal by an alternative means. They contend that good behavior refers instead to conduct which does not constitute the commission of treason, bribery, or other high crimes and misdemeanors. This approach suggests that Thomas M. Boyd is on the staff of the assistant attorney general for legislative affairs, Department of Justice. He received his B.A. in 1968 from the Virginia Military Institute and his J.D. in 1971 from the University of Virginia. The views expressed are those of the author and do not necessarily represent the official position of the Department of Jus tice. while executive officials can be removed by impeachment or the will of the president, or both, judges are subject only to impeachment. But nowhere in the Constitution is there language that so limits removal of judges. "High crimes and misdemeanors," it seems, connotes activity that is similar in magnitude to treason and bribery. "Good behavior," on the other hand, suggests a lower standard, one that might reach failure to perform properly the duties of the office. Surely no one would argue that a judge who dismisses outright all civil rights suits brought before him is guilty of a high crime or misdemeanor, but it is equally certain that this conduct does not represent good behavior. Although the overwhelming number of federal judges are good and conscientious jurists, the danger still exists that a judge might abuse the authority his office represents. It could be done in both subtle and obvious ways. In effect, he could rule with complete impunity, for it would be utterly impractical to expect Congress to halt its business for the length of time required to investigate and to try, if necessary, the alleged misconduct of a trial judge. I submit, then, that the good behavior language of Article III, rather than a vague reference to nonimpeachable conduct, was designed instead to prevent in this country the same executive interference with the judiciary that historically typified the English practice. This theory seems supported by Roger Sherman who signed the Constitution. In 1787 he wrote about judges: I consider it an established principle, that the power which appoints can also remove, unless there are express exceptions made. Now the power which appoints cannot displace them, because there is a Constitutional restriction (good behavior] in their favor. Perhaps the best support for the exclusivity of impeachment exists in Hamilton's The Federalist, Numbers 78 and 79. In Number 78 he wrote: March 1975 Volume 61 325 |