POSSIBLE REFORMS 89 findings of fact and conclusions of law to provide a vehicle for full Senate consideration. The standard of impeachment itself might be rethought. There is precedent for the removal of a judge for lack of "good behaviour" that is not indictable. Admittedly, however, this may raise more of a threat to judicial independence than is warranted by the amount of responsibility to be gained. Congress could specify more fully the standards of responsibility for judges in a detailed judicial oath of office; holding judges accountable for violations of this oath would guide Congress in the impeachment and removal procedure.18 Members of the judiciary are required to take two oaths before ascending to the bench-one mandated by the Constitution, in Article VI, and another required by statute since the First Judiciary Act in 1789.19 A willful violation of the oaths of office is included within the expressed constitutional grounds for impeachment, and may be a nonindictable offense for which judges can be impeached. The suggestion to more fully delineate judicial standards in the oath of office should be tempered, however, by the concern that too detailed an oath requirement would conflict with the tenure of "good behaviour" for judges established by the Constitution. What is needed for a proper evaluation of reforms is not more rhetoric but careful study. A bipartisan commission established by Congress could provide such a forum. The commission should include representatives from both houses of Congress, the executive, the federal judiciary, the state judiciary, the bar, the academy, and the public. This is not a new idea-bills to create such a commission have been introduced over the years-but it is a useful one.20 The commission could investigate the state of the judiciary and the effectiveness of the 1980 act and propose appropriate legislative or constitutional measures. Indeed, the scrutiny itself could serve as a check and balance on the responsibility of the judiciary. Epilogue The question of whether there is an adequate balance between independence and responsibility in the federal judiciary goes to the heart of our society. As Alexis de Tocqueville argued: The peace, the prosperity and the very existence of the Union are vested in the hands of the . . . Federal judges. Without them the Constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative powers; the legislature demands their protection against the assaults of the executive; they defend the Union from the disobedience of the states, the states from the exaggerated claims of the Union, the public interest against [individual] private interests.1 In attempting to resolve this question-and in the process to consider ways both to ensure the integrity of individual judges and to define proper limits on the power of the judiciary as a whole-history is instructive. The Constitution established an independent federal judiciary, coequal to the legislative and executive branches of the federal government. Because the judiciary was considered the weakest of the three branches, the framers thought restraints on its powers almost unneccesary. The impeachment and removal mechanism was considered sufficient to ensure the responsibility of individual judges and of the federal judiciary as a whole. The independence of the judiciary was to be ensured by tenure and salary protections. The tension between judicial independence and responsibility, history teaches us, is inevitable-and essential. Two hundred years of change and growth in the federal judiciary, however, compel reassessment of the mechanisms created to balance that tension. It may be that existing mechanisms, perhaps with some tinkering, will prove satisfactory in the final analysis. It may be, however, that those mechanisms need to be completely rethought and reformed. Diseconomies of scale may have outrun the current constitutional and statutory system for individual responsibility. The pendulum may have swung too far in the direction of independence and away from an appropriate measure of responsibility. But in seeking answers it must be kept in mind that any reform that would increase judicial responsibility-individual or institutional-would inevitably diminish judicial independence. There are no perfect, certain, and final solutions in a democracy such as ours, once defined by Reinhold Niebuhr as the "method of finding proximate solutions for insoluble problems."" Appendix A PUBLIC LAW 96-458- Public Law 96-458 96th Congress An Act To revise the composition of the judicial councils of the Federal judicial circuits, to establish a procedure for the processing of complaints against Federal judges, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SHORT TITLE Section 1. This Act may be cited as the "Judicial Councils Reform and Judicial Conduct and Disability Act of 1980". JUDICIAL COUNCILS OF THE CIRCUITS Sec. 2.(a) Section 332(a) of title 28, United States Code, is amended to read as follows: "(a)(1) The chief judge of each judicial circuit shall call, at least twice in each year and at such places as he may designate, a meeting of the judicial council of the circuit, consisting of "(A) the chief judge of the circuit, who shall preside; "(B) that number of circuit judges fixed by majority vote of all such judges in regular active service; and "(C) that number of district judges of the circuit fixed by majority vote of all circuit judges in regular active service, except that "(i) if the number of circuit judges fixed in accordance with subparagraph (B) of this paragraph is less than six, the number of district judges fixed in accordance with this subparagraph shall be no less than two; and "(ii) if the number of circuit judges fixed in accordance with subparagraph (B) of this paragraph is six or more, the number of district judges fixed in accordance with this subparagraph shall be no less than three. "(2) Members of the council shall serve for terms established by a majority vote of all judges of the circuit in regular active service. "(3) The number of circuit and district judges fixed in accordance with paragraphs (1)(B) and (1)(C) of this subsection shall be set by order of the court of appeals for the circuit no less than six months prior to a scheduled meeting of the council so constituted. "(4) Only circuit and district judges in regular active service shall serve as members of the council. "(5) No more than one district judge from any one district shall serve simultaneously on the council, unless at least one district judge from each district within the circuit is already serving as a member of the council. "(6) In the event of the death, resignation, retirement, or disability of a member of the council, a replacement member shall be designated to serve the remainder of the unexpired term by the chief judge of the circuit. "(7) Each member of the council shall attend each council meeting unless excused by the chief judge of the circuit". (b) Section 332(c) of title 28, United States Code, is amended by striking out "quarterly" and inserting in lieu thereof "semi-annually". (C) Section 332(d) of title 28, United States Code, is amended to read as follows: |