(The Senate rejected Judge Hasting's motion to dismiss on March 16.)

The second issue that the Rules Committee turned to was what procedures the Senate should follow if it decides not to dismiss all the articles of impeachment. Its principal recommendation was that a Rule 11 committee be appointed. Another set of issues was what procedures should govern the activities of that committee. There are various contentions by the parties about the application of aspects of the federal rules of civil procedure, the use of admissions and the use of discovery, but the Rules Committee was unwilling to prescribe for an evidentiary committee the proce dures that it should follow.

The history of Rule 11

Let me tell you just a little bit about the history of Senate Rule 11. It is Judge Hastings' contention that it is an unconstitutional rule. Between 1902 and the mid1930s, the Senate has episodically considered the question whether it would be proper in the discharge of its duty to try impeachments, to utilize committees, as the Senate and the House utilize committees for a variety of purposes. The Senate decided in 1935 to adopt Rule 11, but did not utilize that rule in the very next impeachment, that of Judge Willis Ritter.

Within a week or two, following the impeachment of Judge Ritter, Senator McAdoo introduced legislation to approach the issue of impeachments in a very different way-to recognize that Congress was simply unable to discharge its duties of accusation by the House and trial by the Senate, and that a judicial body should be created which would have the authority to remove district and appellate judges. That legislation got nowhere and was met by a very forceful argument by Senator Tom Connally that, I think, presents the issues that have remained ever since. He said, "Is there not much good to be derived from trying judges through the present method of impeachment, even though it may be cumbersome and toilsome and laborious? Does not the spectacle which is presented to the country of a high court of impeachment here in the Senate attract more attention, and does not the public look on it as a proceeding of more dignity and more importance...?"

I guess anyone could ask a question

and members of Congress could ask a question-about his or her ability to conduct difficult and contentious matters with all the dignity that he or she would like. But Connally's point, I think, was a broader one. There was a kind of solemnity in the Claiborne impeachment having 100 senators not milling around when voting, but rising in place to vote. It reflects a seriousness about the procedure that many members think is worth while preserving. Connally went on to ask, "Would it not be preferable for the Senate to delegate to a committee the hearing of the evidence, which we can do under the Constitution, and for the Senate to act upon the report of the committee, rather than to delegate that power to some court somewhere?"

These issues were then revisited, starting in the late 1970s, with the Senate's and the House's consideration of the Judicial Conduct and Disability Act, which now vests in the judicial councils and the Judicial Conference the power to conduct inquiries and to recommend to the House that an impeachment proceeding be begun. A decision was made because of an impasse in the Congress on the constitutionality of giving to the judicial branch the power to remove judges, that the power of that branch would be only to recommend and not to remove. Senator Mathias was a strong opponent of that mechanism. He believed that, even as to discipline, it is extremely important to retain the Senate as a guarantor of the independence of not only the federal judiciary, but also of the independence of individual judges who, to their colleagues, may seem idiosyncratic.

Ulumately, a compromise evolved. The judiciary's role under the new law is a reporting and recommending one. When the Claiborne impeachment came about, I think then Senator Mathias saw it as a challenge to see whether a committee could function in a fair and effective way to demonstrate that it was possible for the Congress to retain that power, to utilize it in a way which allowed it to conduct other business, but to retain the ultimate power to remove federal judges.

Delegation

Part of this issue is the issue of delegation. The Congress is in a swirl of controversies about what it delegates:

whether it has delegated excessively its power to determine compensation in federal government; whether it has delegated the power to determine rules on sentencing. Even in the independent counsel statute, which is not narrowly seen as a delegation issue, the question has been raised whether Congress has effectively delegated its power to inquire into misbehavior in the executive branch by depending upon a prosecutor system to conduct those inquiries. The effort to adopt and utilize new impeachment procedures within the Senate is an aspect of a judgment that, for the special power of impeachment, delegation is wrong, and that to the extent there is delegation, there should be delegation within the body and the creation of mechanisms within it. There is also, I think, Senator Mathias' point about the protection of the independence of the judiciary and of individual judges.

The Hastings matter probably tests this as greatly as any could imagine. There is a great deal of momentum behind those proceedings. After all, judges in a judicial council and judges in the judicial conference have looked at this matter with great seriousness. The House of Representatives has looked at this matter with great seriousness. It is truly a test of the Senate to see whether it can now step back from all that and require the House to bear the burden of proof that it required in the Claiborne matter. There was a very important judg ment that the Senate made in the Claiborne matter. Claiborne had been convicted. The House came to the Senate and said, "This is an easy impeachment. You can grant summary judgment. You don't need any evidence. You can grant summary judgment based upon the fact of his conviction. Here is the certificate of conviction. Your only decision is whether to impose the collateral conse quence of barring him from any other office of high trust."

The Senate defeated that article of impeachment. It heard evidence through the mechanism of the committee. That evidence was reported. The Senate voted to convict on the articles that charged Judge Claiborne with underreporting his taxes in two years but a majority defeated the article that would have removed him simply because he had been convicted. That was an assessment that

that's a function which cannot be delegated to the judicial branch.

Of course, it is important to know how to accommodate the values which Judge Hastings has been pressing about the need for the full Senate to evaluate the evidence and the Senate's need to be able to conduct its other business. There will be-if this matter goes to an evidentiary proceeding (as the Senate has decided it should)-a great effort in this Congress to allow the matter to proceed at a pace which will provide not only for a full exposition of issues before the committee, but ample time between the committee's report of the evidence and the Senate's consideration of it. Also, videotapes will be available to senators not on the committee.

Judge Diana Murphy: I thought this was a very timely topic, and I was glad that it was going to be presented at our meeting. The title, "Impeaching Federal Judges," is a little bit uncomfortable for any federal judge.It makes it sound like this is quite an ongoing process that we need to be considering and improving on, and that there is going to be a lot of future business, and I hope that's not the case.

There is some suggestion there is a crisis related to federal judicial impeachment, and I submit to you that there is not. I know that Senator Heflin has been interested in the fact that we are having this program, and he spoke at our winter meeting last year about the process in the Senate. We've also been hearing about how it is an evolving process with this Hastings impeachment that is a historic event. It is going to be very interesting for us all to follow, and to see what the outcome will be. But, basically, I think the system is not broke, so let's not fix it. Up until Judge Claiborne's trial, there hadn't been an impeachment trial, I believe, in 50 years. It is, I think, an historical aberration that there were these three criminal prosecutions of judges, Judges Claiborne, Hastings and Nixon, about the same time period. I know that in some of the writings there is a concern that because of the burgeoning number of federal judges, this is going to be a greater and greater problem. It is perhaps suspect for one of the numbered to stand up here and tell you this, but in the nine years that I have been on the federal bench, I have met a lot of federal judges, I have read a lot

of opinions, I have sat on the court of appeals on panels with judges-let me tell you, I think that we have a high quality federal judiciary and a very dedicated and hard-working judiciary.

The division of power between the branches in the Constitution has worked very well. I think we see the wisdom of the Framers. We have the independence of the federal judiciary, and, to make the process of impeachment too easy, I believe, would make it perhaps too routine and the intent of the framers was to keep the federal judiciary isolated from public passion or passion from the other branches. I think that the job of a federal judge sometimes, unfortunately, may be to anger the populace or Congress or the President in some of the difficult cases that come before us. And so I think that we mustn't lose sight of that overriding fac tor as we talk about the immediate problems that are coming before this Senate.

Alternatives

One other area that I wanted to touch on briefly is the statutory mechanism that is in place that I think is actually taking care of a lot of the hypothetical problems that law professors are so able to articulate and to get us thinking about. The Judicial Conduct and Disability Act has set up a mechanism. Many of you who aren't federal judges don't realize, perhaps, how that is working and that it really does present a way of controlling any problems with individual judgesif they have a drinking problem, if they aren't doing their work, if there is some problem they seem to have in making decisions, and so on. Because the judicial councils in practice now are more and more controlling the amount of staff that an individual judge may have, there is the power of the chief judge and of the judicial councils related to the space that a judge has to work with, and control over the caseload. So, through a process that is set up in the statute to provide the judge with due process, it is possible for the judge's caseload to be removed, for the judicial council to censure the judge privately or publicly, or to take some

more serious measures.

There have been some challenges. Judge Hastings, for one, challenged this statute and some of the mechanisms, and so far, it's been uphill. As the mechanism goes forward, I'm sure there will be some

Judge Diana E. Murphy.

additional litigation, but it is operating; it is working to resolve many problems that otherwise could get to be larger and perhaps rise to an impeachable offense level.

In all of the impeachments that have been brought before Congress, the mechanism has been used by the judicial councils and then the Judicial Conference to certify that these three judges had engaged in conduct which might constitute grounds for impeachment, and that mechanism was set up by this statute. There is no basis for the judiciary to try to remove a judge, but the judiciary can, through this process, certify that the judge has engaged in conduct which might constitute grounds for impeachment. And there is another certification process which can actually lead to a new presidential appointment. If a judge, and I'm going to quote from the statute, "is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability," the mechanism can be used to certify that fact and the President may appoint a judge, with the advice and consent of the Senate, to take over that judge's duties. Then, when the judge eventually might retire, resign, be removed in some way, there would be no additional person to replace. There is also a provision in the statute whereby the judicial council can urge a judge to resign.

And so I hope that we are going to pause and sort of digest what's been happening. In history, most of the judges-like Judge Kerner-resigned

Chief Judge Sherman Finesilver: I had the experience of serving on the Judicial Conference of the United States, which is rather impressive in name, but which also has a very sensitive responsibility. The chief justice chairs this committee. We meet twice yearly. The chief judge of each circuit is a standing member, and the district judges serve periods of three years and are elected by the circuit. In all, there are about 28 members on the Judicial Conference. It was remarkable that, in the three years I served, we had the three certifications noted in regard to Judges Claiborne, Nixon and Hastings.

In each case, the pleadings, the files, the records would fill the top of this table, and I am satisfied that every judge-every member of the Conference-studied those reports, records and files. And the discussion was heated. Because what are we doing? We are determining not only the integrity of our system, but also fair play or due process for the individuals involved. Remarkably, in 200 years, we've just had 11 such cases, and only five convictions.

The conference that I sat on in regard to Judge Hastings was marked by chiding by Congress that the judiciary was dragging their feet. And we handed down our certification, which was im

mediately transmitted to Congress on March 17, 1987. Two years later, the matter is still being considered, without any detail, other than potentially within the next five or six months, it might be resolved in some way by the Senate. So there are, of necessity, periods of delay.

The need for refinement

What about a plea of nolo contenedre in the federal court? Is that subject to an impeachment? What about a conviction in the state court that has no comparability to a federal offense? What standard approach should be used by Congress? Should it be beyond a reasonable doubt, the preponderance of the evidence, or something in between? What about the federal rules of evidence? Expressly, they are limited to certain categories. Federal rules of evidence were promulgated by Congress. What about the federal rules of procedure? I am suggesting that, in the past, we've had to determine these matters on a crisis basis. Initially, when we met in regard to Judge Claiborne, the Judicial Conference had no format-had no blueprint-one had to be developed, and then refined, and continually it is going through a refinement. I suggest that perhaps it might be necessary for Congress, likewise, to go through this type of refinement in the Senate, in the House.

I think we all agree with the proposition that the only way you will remove Article III judges is through impeachment, nothing short of that. So, it is essential that the procedure be well defined, not on an emergency basis, but one that could be applied throughout the country. Even though in 200 years we've had only a handful, within 20 years we've had four and they have been devastating for the profession; devastating for the integrity of the system; devastating for the individuals involved. But also, there is a practical approach that when these situations do present them selves, there are no judicial vacancies. That judge is insulated from any sanctions. The office continues. The trappings of the office continue. There might be something done in regard to an assignment of cases, but there is not a vacancy there, and the courts involved are still busy. So there is a practical spin-off which strongly suggests that there should be more expedient operation once it gets

to the House, once it gets to the Senate.

I can only reflect about the time it took for me to review the files and the records-would 435 Congressmen do that? Would 100 Senators do that? I question it. Not reflecting on their integrity, their function, their direction is not focused on something like this, the judiciary's is. We have to be goal oriented, whether we work as individual district judges, or in panels of three on the circuit court. So, there is some need for streamlining the system to make it more expedient, balancing the integrity of the office, but also the due process and the fairness that the individual might have.

Senator Heflin, who served as a chief justice of the Alabama Supreme Court with great distinction, suggests that we ought to engraft two new courts to handle this. One would be a court of inquiry made up of some federal judges, some members of Congress, several other political appointees. That one body, the court of inquiry, would make certain determinations and they would transmit to a court on a judiciary-another judicial body, a quasi-judicial body. It has some merit. I question whether any constitutional amendment, which this would command, would really attract that amount of interest. It might interest those in this room, but the general public has been very reticent to have any constitutional amendments. And I question sincerely whether we should engraft another judicial body beyond what we have now.

I think the system of impeachment by the House and trial by the Senate is wise, but I think it is too cumbersome, and there have to be systematic committees established and a framework as to the groundrules that should prevail. I think that what's happened in the last several years suggests strongly that Congress should seriously look upon its refinement of its area of responsibility, without re gard to what else a judiciary can do, be cause I've seen, in all instances, the judiciary has been most responsible in handling these things in a very immediate way, an expedient way, but with fairness. This is a practical approach. I've got to say in full candor, our approach might not be the right approach, because every lawyer has some suggestion what should happen with its judges, and I commend that discussion to you.

0