perhaps as never before, on the balance between judicial independence and responsibility. The criminal trials of sitting federal judges Harry E. Claiborne, Alcee L. Hastings, and Walter L. Nixon captured national interest. Widespread dissatisfaction with the impeachment proceedings against Claiborne, and with the progress of impeachment proceedings against Hastings and Nixon, have motivated a major reevaluation by Congress. A chief concern, exacerbated by the criminal indictment of Judge Robert P. Aguilar this past June, is whether these recent proceedings portend a trend toward more frequent and numerous impeachments. Representative Robert Kastenmeier of Wisconsin, chairman of the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, announced that the subcommittee intended to evaluate the Judicial Conduct and Disability Act of 1980 (see Appendix A) to consider "whether the process can be changed or improved"; he noted that a constitutional amendment would be "one of the questions." Some hearings have been held. In 1987, Senator Howell Heflin of Alabama introduced a resolution for a constitutional amendment that would give Congress the power to create procedures for the removal of federal judges other than by impeachment. We can expect other, similar proposals.

But it is critical to our system of government that we not act in haste. The extent of the problem must be measured against the proposed solutions. Is there widespread corruption among federal judges? Are less serious ethical breaches too frequent? Do many federal judges stay on the bench after infirmity, from age or illness, afflicts their judgment? Have federal courts overstepped the legislative line or encroached upon the executive domain? Does the federal judiciary even have the capacity to govern the nation well? Does the federal judiciary denigrate state sovereignty? And are existing mechanisms adequate to monitor and to sanction breaches of responsibility?

The issue of the responsibility of individual federal judges is unlikely to recede. Nor is the issue of the proper role of the federal judiciary as a whole-especially in light of the expansion of the overall federal presence. A careful examination of the history of the judiciary, particularly of the way the mechanisms for ensuring judicial responsibility work and the changes that have affected the role of the federal courts, must guide any suggestions for reform. Otherwise we risk disrupting the system of checks and balances at the heart of our government.

Chapter 1
A Brief History

The judicial branch of colonial government had a significant impact on the day-to-day lives of the colonists. In addition to jurisdiction over criminal law and civil disputes about such matters as debts and titles to land, the courts held considerable administrative power. They assessed local taxes, determined spending on public works (government buildings, roads, and bridges), regulated hunting, and granted licenses for doing business. Given the considerable power of this small oligarchy, and the importance of judicial affairs to the colonists, the judiciary was often the center of controversy.

Colonial judges were either commissioned in England or appointed by resident governors under written authorization in detailed "instructions." During most of the colonial period, governors were required to commission judges without any limit on their tenure-apparently to provide some independence from the threat of arbitrary removal by the governor, who himself could be recalled for failure to follow instructions, for inefficiency, or for political reasons. Later, instructions specified that judges were to serve at the pleasure of the Crown. In some colonies, legislatures refused to appropriate funds for judges'

salaries unless tenure was for "good behaviour" (a situation that obliged the appointing governor to violate the terms of his instructions), but generally instructions were followed-to the dissatisfaction of many colonists.

The colonists registered their dissatisfaction in the Declaration of Independence, charging that the colonial judiciary served at the pleasure of the Crown. They cited the judges' insecurity in office-and consequent lack of independence-as an example of George III's tyranny over the states: "He has made Judges dependent on his Will alone for the tenure of their offices and the amount of their salaries."

Between 1776 and 1787, each new state began to develop a judicial branch alongside the executive and legislative branches. Many early state constitutions provided tenure during good behavior for certain judges. Almost all of them also provided an impeachment procedure for judges and other state officials for "maladministration," "misconduct," or "misbehavior."

Typically, the lower house of the state legislature was authorized to institute impeachment. While the forum for trying impeachment varied from state to state, the upper house, the judiciary, or some combination of the two was empowered to hear the charge. The usual punishment was removal from office and a disqualification from holding future office, with an explicit understanding of the possibility of subsequent criminal indictment and other punishments. Several state constitutions also provided for the British procedure of address-typically requiring a twothirds vote in each house of the legislature for a resolution addressed to the executive to remove the offending judge. Beyond these basics, though, state constitutions said very little about the judiciary, leaving most details to the primary authority of the legislature.

For the colonists, the essential concern had been to protect the independence of the colonial judiciary from over

reaching by the Crown and Parliament. Upon achieving independence, concerns changed. All the states initially assumed a system of legislative supremacy, but then fears grew about a too-powerful legislature. The idea of judicial review-the notion that the judiciary could strike an act of the legislature that exceeded constitutional powers— began to be taken seriously. Those supporting this view envisioned a judiciary appointed by the executive with tenure during good behavior. Others would place final power in a democratically elected legislature, with judges responsible to the people by election or appointment for limited terms.

Nationally, under the Articles of Confederation, which became effective in 1781, important matters were to be decided with the assent of nine states in a Congress in which each state had one vote. The Articles effectively failed to provide adequate powers to the national legislature and purposefully did not provide for a separate national executive or an independent federal judiciary. There was no provision for any impeachment whatsoever. In The Federalist, arguing for the proposed Constitution, Alexander Hamilton described "the want of a judiciary power" as a "circumstance which crowns the defects of the Confederation."

At the Constitutional Convention of 1787, debate over a federal judiciary and over impeachment procedures began with the Virginia Plan, largely the work of James Madison, which provided for a strong national government with an executive, a two-house legislature, and a judiciary? The judiciary was to consist of one or more supreme tribunals and of inferior courts-to be chosen by the national legislature-that would hold office during good behavior. Although the plan did not give particular grounds for impeachment, the judiciary was to have the jurisdiction to try impeachments of all national officers. Discussing the Virginia Plan, George Mason observed that