CQ Law/Judiciary

When a House Judiciary subcommittee begins impeachment proceedings May 18 against U.S. District Judge Alcee L. Hastings, it will be the second time in two years the committee must consider removing a life-tenured judge from office.

But even before the full committee finishes with Hastings, another subcommittee will be working on the possible impeachment of a third judge.

This spate of impeachments which are akin to investigation and indictment by a grand jury - has raised questions about the way the Judiciary Committee handles these time-consuming, unpleasant tasks and has prompted some soul-searching among panel members about the state of the federal judiciary.

It has also prompted renewed discussion of a 1980 law (PL 96-458) that created procedures for disciplining federal judges and that formed the basis of the three impeachment inquiries. The first in the series led to the Oct. 9, 1986, conviction by the Senate and removal from office of U.S. District Judge Harry E. Claiborne of Nevada. He was the first federal judge in 50 years to be impeached and removed from the bench. (1980 Almanac p. 391; 1986 Almanac p. 75)

Federal judges, by and large, have accepted the 1980 law, although some of them are unhappy about the dozens of frivolous complaints that are filed every year by dissatisfied litigants.

Rep. Robert W. Kastenmeier, D. Wis., has introduced legislation to revise some parts of the law, and he expects to hold a hearing on the measure later this summer.

Kastenmeier, who is chairman of the Courts, Civil Liberties and Administration of Justice Subcommittee, is also the chief critic of the way the Judiciary Committee has handled the three impeachments. Chairman Peter W. Rodino Jr., D-N.J., has parceled out each case to whatever subcommittee he could persuade to take the matter, and special counsels have been hired to run the investigations.

-By Nadine Cohodas

DAVID PURDY THE SUN/DAILY HERALD

Judge Walter L. Nixon Jr.

Kastenmeier thinks this approach lacks consistency and is inefficient. He believes that a special committee panel should be created to handle impeachment cases, and he wants a commission to study the removal issue.

"Impeachments are so time-consuming it is unfair to impose them on a regular subcommittee," he says.

Kastenmeier knows firsthand how much work an impeachment can be. His panel handled the impeachment of Claiborne, who had been imprisoned for tax fraud.

After the Claiborne affair, Kastenmeier made clear publicly and pri vately that he didn't want another impeachment, even though his subcommittee, because of its legislative responsibilities, has the closest relationship to the judiciary.

The Hastings, Nixon Cases

When the Hastings case came to the committee in March 1987, Rodino persuaded the Criminal Justice Subcommittee to do the initial investigation. It has proved to be more difficult than the Claiborne case, because unlike the convicted Nevada judge, Hastings, who is from Florida, was acquitted in 1983 of bribery charges. A special investigation by the 11th U.S. Circuit Court of Appeals later determined that he fabricated his defense to win the acquittal. The appeals

ASSOCIATED PRESS

Judge Alcee L. Hastings

court recommended impeachment, as did the U.S. Judicial Conference, the policy-making arm of the federal judiciary. (1987 Weekly Report p 2482)

The subcommittee may have to conduct what amounts to a retrial of the Hastings charges. The proceedings will be difficult. "The guy's been acquitted, and that makes people uneasy. It hits them wrong in the gut," says one Democratic committee aide.

The case of the third judge, Walter L. Nixon Jr. of Mississippi, is more like Claiborne's, because Nixon is also a convicted felon. He was convicted of perjury in 1986 and is now serving a five-year prison sentence. Nixon's case is pending in the Civil and Constitu tional Rights Subcommittee. Chairman Don Edwards, D-Calif., says he felt obligated to handle the inquiry. because he had turned down the Hastings case. (Weekly Report p. 713) Criticism Rebutted

Kastenmeier's criticism of the case-by-case impeachment approach is not shared by many Judiciary members, even those who are his frequent allies. Part of their hesitancy stems from a belief that three impeachments in a row is an aberration unlikely to be repeated any time soon. After all, they note, only nine judges before Claiborne had been impeached, and the last one was Judge Halsted L. Ritter,

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who was removed from office in 1936. (History box, 1986 Almanac p. 78)

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Kastenmeier concedes that three consecutive impeachments are usual, but he thinks the committee should be prepared for more cases. It's simply a matter of numbers, he says:

"The judiciary is no longer a group of 100 judges whom we know well. As we approach 1,000 judges, we can expect a larger number of them to fail the test of minimally acceptable conduct or behavior."

Regardless of the frequency of future impeachments, other members think the rotating plan works well enough. Edwards, who rarely disagrees with Kastenmeier, even sees some merit to the committee's ad hoc methods.

"We shouldn't institutionalize impeachment," Edwards says. "If you start to make any shortcuts toward impeachment, or any institutionalizing of the process, that would make impeachment a little easier. It should be terribly difficult. I like to start over again every time," he says.

Hamilton Fish Jr., N.Y., the ranking Republican on the committee, is "ambivalent about a special panel." He says that if a special panel is created and no new impeachment arises for several years, members appointed to the panel now may no longer be in Congress.

Like Edwards, Fish says he sees "some benefit in moving the impeachments around... because there is exposure of different members [at the subcommittee level] to this process."

The committee's methods may change for the next impeachment, because the panel will have a new chairman in 1989. Rodino is retiring and Jack Brooks, D-Texas, will likely take over. Brooks won't talk publicly about his plans for the committee, saying that's premature. But there are reports he wants to set up a new oversight panel that could handle impeachments. (Weekly Report p. 735)

Carlos J. Moorhead, R-Calif., who is next in seniority to Fish, believes that whichever subcommittee handles the initial phase of an impeachment should carry it through the House and then to the Senate, if necessary.

This, he notes with mild irritation, did not occur in the Claiborne case. Although Kastenemeier's subcommittee on which Moorhead serves handled all the preliminary work in the Claiborne matter, Rodino hired a separate special counsel to handle the trial in the Senate.

Rodino has indicated that Alan I.

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Baron, the special counsel handling the Hastings and Nixon cases, will continue the impeachments into the Senate, if that becomes necessary. Alternatives to Impeachment

Impeachment has been the only way to remove life-tenured judges from the bench since the judiciary was created in 1789. Judges are considered to be "civil officers" of the United States, and Article 11, Section 4, of the Constitution states: "The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Although Claiborne's case was the first impeachment trial the Senate conducted in 50 years, it quickly prompted some senators to think about less cumbersome alternatives for removing judges from office.

As it was, the Senate adopted a shortcut procedure for trying Claiborne, designating a special panel of 12 senators to hear the evidence and then report to the full Senate.

Some senators and representatives questioned whether this was appropriate, but after he was convicted and removed from office, Claiborne never challenged the procedure.

The issue of removing judges from office was a central part of the debate over the judicial-discipline law. and some senators, led by Democrats Sam Nunn, Ga., and Dennis DeCon

cini, Ariz., argued for a time that Congress could enact an alternative that allowed removal of judges by a special panel within the judiciary.

They succeeded in passing such a bill in 1978, despite opposition from some of their colleagues and from federal judges who said it was unconstitutional. The House took no action. (1978 Almanac p 198)

The next year, DeConcini introduced a bill that provided for disciplining judges short of removal. Nunn tried to add his removal procedure to the measure, but he failed. After months of dickering among the Senate, the Judicial Conference and the House, the discipline law was finally enacted in 1980.

A byproduct of the congressional debate seems to be a consensus that Congress must pass a constitutional amendment, rather than simply a statute, to change the method of removing judges.

Last year, Sen. Howell Heflin, D. Ala., introduced an amendment (S J Res 113) to give Congress the authority to set up an alternative procedure for removing judges from office, although it does not specify what procedure Congress should create.

is

and then ratified by the states unclear. Amending the Constitution is a very difficult process, requiring a twothirds majority in Congress and then approval by three-fourths-38of the states. The last successful amendment, granting 18-year-olds

the right to vote, was ratified in 1971.

Judicial Discipline

The 1980 law, which went into effect Oct. 1, 1981, allows any individual to file a complaint about a federal judge with the clerk of the court in which that judge serves. (There are 94 judicial districts, grouped into 12 regional appeals court circuits. There are also three specialized courts covering patents and trademarks, international trade. and

claims against the gov ernment.)

A complaint is automatically referred to the chief judge of the relevant appeals circuit. That judge can immediately dismiss a complaint if he determines

that it is directly related to a judicial decision in a case, or that the complaint is frivolous. In other instances, the chief judge must appoint a special committee to investigate the complaint on behalf of the governing council of the circuit.

Based on the outcome of the investigation, the judicial council has authority to take disciplinary action, such as public or private censure. But the council may not remove a judge from office. It can only recommend such action to the Judicial Conference, which in turn can forward the recommendation to Congress. This is what happened in the Claiborne, Hastings and Nixon cases.

From Oct. 1, 1981, through June 30, 1987, a total of 1,153 complaints had been filed, according to the Administrative Office of the U.S. Courts (ACC) Of those, 73 percent, or 841, were dismissed by chief judges. The chief judges took corrective action in another 45 cases. (Box, this page)

The judicial councils of the federal circuits received 212 complaints.

SOURCE Administrative Office of the U.S. Courts

and of those, all but four were dismissed. The judicial councils took corrective action in three of the cases, and the fourth was referred to the Judicial Conference.

Statistics for 1987, which are similar to those for previous years, illustrate the kinds of complaints that are made against judges. The vast majority of the 232 complaints alleged some type of judicial bias toward the complaining party. The second largest category was under the broad rubric of "abuse of judicial power."

These complaints are dressed-up versions of a common theme, says Charles Clark, chief judge of the 5th US. Circuit Court of Appeals. "Look, this guy didn't do me right." Another variation, he adds, are complaints that "the judge was rude to me.'"

"We certainly don't want rude judges," Clark says. But he believes that a judge who abruptly says "case dismissed" should not be called to account, while it would be a different matter, he adds, if the judge said,

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"Case dismissed. Get outta here."

The law has turned out to be more timeconsuming for the chief judges than they origi nally expected, says Robert Fiedler, legislative and public-affairs officer for the AOC. "The act has generated a lot of work based on frivolous complaints," adds Fiedler, who helped draft the law when he worked for DeConcini. "But to live up to the letter and spirit of the law, the judges have had to spend time reviewing those." There have not been judiciary requests to repeal the act, although the judges have met with Kastenmeier to discuss ways of improving it. Clark says he would like a provision that would allow the chief judge to designate some of his colleagues to help review com plaints and another one that would give a chief judge more flexibility in handling complaints that, while not frivolous, may not need a

full-blown investigation.

Like other judges, Clark has mixed feelings about the statute. "The principal virtue of the act," he says, "is that it has publicized the fact that people can make a complaint against a member of the judiciary and [know] that there is some organized machin ery that gives them a place to lodge that complaint."

But on balance, he adds, "the law is not a statute that I can see has proved dramatically helpful. There's so much more chaff than wheat" in the complaints.

The Hastings case could prove to be the sternest test yet for the statute. It was Hastings' own colleagues who determined that his conduct, although not criminal by a jury's decision, did not measure up. And they used the statute to call him to account.

Now that the case is at the House Judiciary Committee, the law has come full circle, and the original spon. sors can determine if it is working as they had hoped it would.

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