duct so that the integrity and independence of the judiciary may be preserved." It is a self-evident proposition that principled judicial decisionmaking requires an independent judiciary. With judicial independence, controversial issues are guaranteed principled resolution rather than expedient compromise. As Judge Edward D. Re has noted, "It may be said that without judicial independence, no judge or justice, however well-prepared by qualities of heart, mind and professional training, can give full effect to the enduring values enshrined in our Bill of Rights."

10

The men who debated, drafted, and ratified the Constitution understood this and attached great significance to an independent judiciary11 Only an independent judiciary can uphold the essential civil right of every American to claim the protection of the law. Thus, safeguards of judicial independence must hold steadfast against any attempts to overreach the judiciary, and caution must be exercised lest remedies designed to monitor judicial responsibility be used as bludgeons against judicial independence.

Responsibility through Two Centuries

The history of the federal judiciary is replete with efforts to increase responsibility without encroaching unduly on independence. In 1790, a statute was passed that permanently disqualified judges from holding any office upon conviction for bribery. Amid congressional debate over the Judiciary Act of 1802, which eliminated many federal judgeships and stripped incumbents from their offices, calls for judicial responsibility were common. During Reconstruction, the legislature attempted to increase judicial responsibility by obliging those judges over the age of seventy who had refused voluntary retirement to share their benches with newly appointed judges who would perform the same duties. As one member of Congress argued,

"I agree it is necessary to have an independent judiciary but it is equally necessary to have an effective judiciary?"" During the early 1900s, with substantial controversy over the constitutionality of eliminating Article III judgeships, the Commerce Court was to be abolished by statute. Although President William Howard Taft's veto in the name of judicial independence saved its judges, who were reassigned by a second statute to other federal courts, Taft himself argued for a constitutional amendment to require retirement for federal judges. During the 1930s, the call for more judicial responsibility surfaced again in a bill, which was defeated, proposing the recognition of "good behavior" as a condition of Article III tenure. President Franklin D. Roosevelt's failed effort at court-packing would have given him a Supreme Court appointment for every Supreme Court Justice over the age of seventy who refused to retire. Concerns about the effects of age or illness on the conduct of individual judges were dealt with in the 1950s when a statute was passed authorizing chief judges to certify permanent mental or physical disability of a federal judge who is eligible to retire but does not do so. During the debate leading to the 1980 reform statute, it was argued that, "when dealing with so fundamental and so fragile a notion as the independence of the judiciary, one ought to tread warily lest the ultimate cost far outweigh the immediate gains."13

The most consistently expressed concern, typically without empirical backup, has been about the individual judge who is unfit because of corruption, misconduct, age, or disability. This concern about the responsibility of individual judges is distinct from and yet linked to a broader concern about restraining the judiciary as a whole to its defined role. Some have charged that the constitutional mechanisms established to ensure judicial independence have created the appearance-if not the reality-of a judiciary unaccountable to the legislative and executive

branches and to the states; judges who have become not only a "law" but a "Constitution unto themselves." And the two responsibility concerns-as well as the mechanisms designed to remedy them-can neither be kept wholly distinct nor entirely separate from the issue of judicial independence. The mechanisms designed to ensure greater responsibility are capable of becoming bludgeons; to cite Philip B. Kurland, "Tools created by the well-intentioned for beneficent uses may fall into less worthy hands to be used for less appropriate ends."14

In assessing the larger issue of the responsibility of the judiciary as a whole, and its relationship to judicial independence, Kurland cautions:

It should be kept in mind that the provisions for securing the independence of the judiciary were not created for the benefit of the judges, but for the benefit of the judged. It is not in the keeping of the judges to surrender this independence under pressure or voluntarily to give it away. Judicial independence is held in trust for the people and only they should determine whether they would like to exchange some judicial independence for more judicial efficiency.15

Judicial independence does not mean, as was noted by Alpheus T. Mason, absolute autonomy. "Implicit in the system of government [the framers] designed is the basic premise that unchecked power in any hands whatsoever is intolerable."16 The argument that judicial independence is protected in order to secure individual rights, therefore, cannot be the basis for calling for an absolute independence that would place the judiciary beyond any claim of responsibility." Judicial independence, alone or absolute, would not be the rule of the law; governance under a constitution obliges the appropriate measure of judicial responsibility.

Two centuries after the framing of the Constitution, judicial independence and responsibility remain in tension. While it is incumbent on our generation to accept the principles of the framers as self-evident, we must also be aware of the imperfections, the ambiguities, and the irrelevancies. Only we govern ourselves. The assessment and adjustment of judicial independence and responsibility are left to us.

Chapter 2

The Contemporary Judiciary

From the time the Constitution was framed, there never has been a tolerance for a judge who takes a bribe or is so infirm that judgment is impaired. But there has been a subtle shift in attitude toward judges and courts—a willingness to accept judges as subject to human failings.1

Two hundred years ago, such an assertion would have been considered lacking in grace at the least and, at worst, contemptuous of the courts and the law. At that time, the extent of the problem, if not its inevitability, was less readily accepted. When questioned about the fact that there was no provision in the Constitution to remove a judge on account of inability, Alexander Hamilton's response was that such a provision would either not be used or could be abused: "An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good.""" In The Federalist, paper number 79, he argued that it was preferable to accept the remote risk of an insane or senile judge than to diminish judicial independence.

Today, however, in light of revelations of corruption and disability, the issue of judicial integrity has aroused considerable concern. When Otto Kerner, circuit judge for the U.S. Court of Appeals for the Seventh Circuit, was in