Chapter 4 Possible Reforms The history of the federal judiciary is one of constant adjustment between responsibility and independence. President Woodrow Wilson's comments on the continuing evolution of federalism are indicative of that ongoing reassessment: The question of the relation of the States to the federal government... cannot, indeed, be settled by the opinion of any one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question.1 At the same time that responsiveness is encouraged, caution is advised. Thus, during the debate leading up to the 1980 act, it was argued: "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." Areas of possible reform-including a special court for federal judicial discipline, a commission on judicial qualifications, changes in selection procedures, mandatory retirement, establishing a term of tenure, and improving existing mechanisms for restraint-are the subject of this chapter. 80 THE GOOD JUDGE Learning from the States Justice Brandeis observed that one of the true benefits of a federal system is that the different states can serve as "laboratories," developing and experimenting with new policy ideas? The states, each with its own independent court system and with many times more judges, have tried various mechanisms to ensure greater responsibility on the part of individual judges. The evolution of the state mechanisms, which stands in contrast to the constancy of the federal approach, is instructive in itself? At one time, the majority of the states followed the federal model-that is, appointed judges who enjoyed lengthy terms (if not life tenure) and who were subject to removal by impeachment and conviction in the state legislature. But for the most part the states have moved away from the federal model, creating different mechanisms for ensuring judicial responsibility. While some mechanisms for ensuring responsibilitysuch as removal by legislative resolution or address, recall, or judicial elections-would not transfer to the federal system, others might be employed on the federal level. The state courts perform a much different function from the federal courts, however, and proposed federal reforms must be considered in this light. A special court, for example, made up of representative judges, was created in a few states for a short time to consider complaints against judges and had the power to remove judges for cause or to require retirement for physical or mental infirmity. The idea of a special court for federal judicial discipline has been suggested from time to time, but it has not yet been taken very seriously. It might be time to reconsider this idea, if the 1980 act is deemed wanting. Another idea that might be transferred from the state to the federal level is that of a commission on judicial qualifications. In most states with such a commission, the mechanism contains a permanent commission of repre POSSIBLE REFORMS 81 sentative judges, attorneys, and citizens that investigates charges, adjudicates, and sanctions. The commission is the most recent and most widely used mechanism for ensuring judicial discipline in the states. California developed the Commission on Judicial Qualifications in 1960; nearly all of the states have followed in one way or another since then. This momentum contributed to the 1978 American Bar Association's "Standards Relating to Judicial Discipline and Disability Retirement." The ABA "Standards" recommend a unitary commission-now in place in forty-one states-with jurisdiction ranging from investigation through formal hearing and recommendation of disciplinary action to the state supreme court. In most states, the highest court may make an independent review of the complaint and enter a final disposition. Four states authorize the commission itself to impose a sanction-including removal-subject to review by the state supreme court. Nine states have separated the investigation and adjudication into two tiers, with one commission receiving and investigating complaints and a separate commission or court for adjudication. Sanctions vary from censure to suspension, retirement, or removal. The state experience with these commissions is growing. According to the latest available data, the number of state judges removed from office in 1984 increased by 27 percent over the previous year. The number of initial inquiries or complaints nationwide rose 11 percent from 1983 to 1984, with few states experiencing decreases and with some states reporting extraordinary increases. The idea of such a commission on the federal level has been debated from time to time-most recently in the legislative debate leading up to the 1980 act. But the idea failed, largely because it was argued that the judiciary is able and willing to police itself and because of the potential threat to judicial independence. Recent frustration with the Claiborne impeachment, 82 THE GOOD JUDGE skepticism about the modest results of the 1980 act, and impatience with the judiciary in general, however, have led to Senate proposals for amendment of the Constitution to allow Congress to legislate standards of conduct and removal procedures similar to the state commissions on judicial qualifications. Because these proposals would demote judicial independence from constitutional to legislative status, they are to be resisted. The cost in lost judicial independence simply is too high a price to pay for some greater measure of responsibility. State experience with the selection of judges is held up by some as a means of ensuring greater judicial responsibility on the federal level. From the colonial period to the early 1800s (when judges were first elected), the appointive system was prevalent in the states. Then the elective method of selection spread until, by the Civil War, a majority of states had constitutional provisions for the election of judges (often supplemented by legislation that provided for nomination by party convention). Direct primary nomination of judges then arose as a populist reaction to convention slating. Next came a nonpartisan judicial election scheme (sometimes including nonpartisan primaries). Most recently, many states have adopted a dual mechanism: judicial appointment followed by judges running on their record in a retention election. Although, as recent elections for the California Supreme Court demonstrate, some state elections of judges have revolved around the role of the judiciary, the elective method of selecting judges in the states rarely has been used to defeat a judge who is corrupt or infirm and proves much too cumbersome for that purpose. Further, the idea of electing federal judges is practically constitutionally unthinkable. More significantly, because other existing-and proposed-mechanisms offer sufficient potential for ensuring judicial responsibility, proposals to elect federal judges should remain rhetorical. POSSIBLE REFORMS Mandatory Retirement 83 When mandatory retirement of judges was first proposed, there was considerable controversy. Although the controversy remains, mandatory retirement requirements have been widely adopted in the states. A recent survey disclosed that thirty-seven states and the District of Columbia have provisions for mandatory retirement, usually at age seventy. California and Maine reduce or forfeit a judge's retirement benefits for failure to retire by a certain age. A recent amendment to the federal Age Discrimination and Employment Act, however, bars virtually all mandatory retirements based on ageapparently including appointed judges, although the amendment has an exception for elected officials.10 The Constitution, of course, sets no mandatory retirement age for federal judges. The typical federal judge takes senior status under the liberal provisions of the Voluntary Retirement Pension Act; the average Supreme Court justice does not." Of ninety-six Supreme Court vacancies from 1789-1984, half resulted from death in office. Since the turn of the century, only eight members of the Supreme Court resigned for reasons besides poor health or age. Since 1937, when retirement benefits were improved, there have been twenty-three Supreme Court vacancies; thirteen resulted from retirement, ten from resignation or disability. Henry J. Abraham concludes: "It is human to cling to power and influence, and it is particularly human to enjoy a role of such significance and nationwide esteem. "'" 12 Alexander Hamilton defended the decision not to prescribe a mandatory retirement age as stemming from a humanitarian impulse to provide for long-serving judges in their old age and a disbelief in the "imaginary danger of the superannuated bench."13 Today, pension reforms have eliminated the concern for a penurious retirement. It is noteworthy that, even though he was such an articulate |