In this work, as in all that I do, I am grateful for the love and support of my wife and son. To Janie and Tommy with love and thanks in return. Prologue In recent years, the role of the judiciary and the character and ability of those who preside over our federal courts have come under ever-increasing fire. There has been a growing concern that the federal judiciary has overstepped its role as defined in the Constitution and has arrogated too much power to itself, usurping power from the legislative and executive branches of the federal government and from the states. And in the past five years, there have been three criminal trials of sitting federal judges. At the state level, such incidents are considered scandalous; at the federal level they have been nearly unprecedented. (These three, and a fourth trial of a sitting federal judge in 1971, are the only such trials in our nation's entire twohundred-year history.) Now we are faced with resolving complex constitutional, legal, ethical, and political issues concerning the judiciary. The Constitution does not say a great deal about this branch of government, which was considered the weakest of the three branches by the Founding Fathers: it gives presidents the power to appoint federal judges, "with the advice and consent of the Senate," and states that such judges "shall hold their offices during good behaviour." It protects judges from financial coercion by the other branches by declaring that they should, "at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." These provisions free judges from fear of retaliation for their decisions-reinforcing their individual independence as well as that of the judiciary. But judges are independent only as long as they behave responsibly; good behavior is expected, and impeachment by the Congress is possible for "Treason, Bribery, or other high Crimes and Misdemeanors." But what is "good behaviour"? Alexis de Tocqueville observed: Not only must Federal judges be good citizens, and men of that information and integrity which are indispensable to all magistrates, but they must be statesmen, wise to discern the signs of the times, not afraid to brave the obstacles that can be subdued, nor slow to turn away from the current when it threatens to sweep them off, and the supremacy of the Union and the obedience due to the laws along with them.1 The concept of judicial independence thus includes that of individual judges free from personal influence or private interest, and that of the independence of the judiciary as a whole. In terms of the latter, independence means that the judiciary must be beyond the undue influence of the legislative or executive branch of the federal government and removed from the direct influence of popular majorities. Federal courts must remain, in Edmund Burke's phrase, a "safe asylum" during times of political crisis. Yet as Alpheus T. Mason wrote, "Implicit in the system of government [the framers] designed is the basic premise that unchecked power in any hands whatsoever is intolerable."2 The independence of the judiciary affords the essential civil liberty of every American to claim the protection of the law against the government. But independence does not mean autonomy. Individual judges and the judiciary as a whole must perform responsibly. The judiciary may not encroach on the powers granted by the Constitution to the legislative and executive branches of the federal government or on the powers of the states. Some critical observers have expressed concern about what they see as a long-term trend toward an "imperial federal judiciary”— a judiciary that denigrates state legislative, executive, and judicial powers. They see the judiciary as infringing on the domain of the other two federal branches, deciding important issues previously handled by those branches. If the judiciary's role is now to ensure the efficient and proper functioning of government-whether or not it has assumed this responsibility because the other two branches have abdicated their responsibilities-it is exceeding its role as defined in the Constitution. Independence and responsibility are poles of a continuum. Neither value should be taken as an absolutewhether considered in terms of an individual judge or in terms of the judiciary as a whole. An "absolutely independent" judiciary, for example, would reign supreme over the legislative and executive branches; an "absolutely responsible" judiciary would abdicate all power to act as a check on the legislative and executive branches. Any adjustment of the balance that exists between judicial independence and responsibility may have a profound effect on the central constitutional principles of individual rights, separation of powers, and federalism. For this reason, a strong case of widespread corruption or disability must be made to justify any encroachment on judicial power. Reform must be approached with caution, lest otherwise appropriate mechanisms to guarantee responsibility be used wrongly against independence. Independence is the constitutional flywheel that offsets both individual responsibility and institutional responsibility. Public attention and congressional concern are focused, |