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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
93d Congress, 1st Session
JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas
ROMAN L. HRUSKA, Nebraska SAM J. ERVIN, JR., North Carolina
HIRAM L. FONG, Hawaii PHILIP A. HART, Michigan
HUGH SCOTT, Pennsylvania EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina BIRCH BAYH, Indiana
MARLOW W. COOK, Kentucky QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, JR., Maryland ROBERT C. BYRD, West Virginia
EDWARD J. GURNEY, Florida JOHN V. TUNNEY, California
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
BIRCH BAYH, Indiana, Chairman JAMES O. EASTLAND, Mississippi
HIRAM L. FONG, Hawaii SAM J. ERVIN, JR., North Carolina
ROMAN L. HRUSKA, Nebraska ROBERT C. BYRD, West Virginia
STROM THURMOND, South Carolina QUENTIN N. BURDICK, North Dakota MARLOW W. COOK, Kentucky JOHN V. TUNNEY, California
HUGH SCOTT, Pennsylvania
Byrd, Hon. Harry F., Jr., U.S. Senator from Virginia-
School, Cambridge, Mass.
Boston College Industrial and Commercial Law Review, vol. 13, No. 3,
Gunther, Gerald, professor of law, Stanford Law School, Stanford, Calif,.
letter to Hon, Birch Bayh, May 10, 1972-Harrison, Hon. Albertis S., Jr., Justice of the Supreme Court of Appeals,
Richmond, Va., letter to Hon. Harry F. Byrd, Jr., May 5, 1972Kramer, Robert and Jerome A. Barron, “The Constitutionality of Removal
and Mandatory Retirement Procedures for the Federal Juriciary: The
Review, vol. 35, No. 3, p. 455 (1967).
Judges: Some Noies from History” University of Chicago Law Review,
vol. 36, No. 4, p. 665, (1969). Library of Congress, memorandum on the tenure of Federal judges. Lillich, Richard B., “The Chase Impeachment,” the American Journal
of Legal History, vol. 4, p. 49 (1960), Temple University Memorandum of law, "A Challenge to the Concept of Life Tenure for the
Federal Judiciary," prepared for Hon. Harry F. Byrd, Jr., by Edward
J. White, special assistant to Senator Byrd..
New York, N.Y., letter to Hon. Birch Bayh, May 11, 1972.
New York, N.Y., letter to Hon. Birch Bayh, May 8, 1972-
Kansas City Law Review, vol. 5, p. 119.-
Constitutional Problems relating to Methods for Removal or Discipline
of Judges," case comment, vol. 21, p. 153 (1966) Senate Joint Resolution 106. Shaffer, Thomas L., dean, Notre Dame Law School, Notre Dame, Ind.,
letter to Hon. Birch Bayh, May 19, 1972. Shartell, Burke, “Federal Judges — Appointment, Supervision, and Re
moval-Some Possibilities Under the Constitution". Michigan Law
Review, vol. 28 No. 7, p. 870 (1930)
Law, vol. 64, p. 653 (1916).
Review, vol. 64, p. 803 (1916) --
California Law Review, vol. 57, No. 3, p. 659 (1969)
Impeachment," vol. 20, p. 723 (1967)
Bloomington, Ind., letter to Hon. Birch Bayh, June 1, 1972...
Illinois Bar Journal, vol. 58 (1970)---
in the United States," Judicial Selection and Tenure: Selected Readings,
American Judicature Society, Chicago, 1967.
Constitution" Georgetown Law Journal, vol. 26, No. 4, p. 849 (1938) -
English and American Precedents" 1969 Supreme Court Review, p. 135..
Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh presiding.
Present: Senator Bayh (presiding).
Senator Bayh. We will convene our hearing this morning, the primary purpose of which is to study the ramifications, the impact, and the thrust, of Senate Joint Resolution 106, introduced by our distinguished colleague from Virginia, Senator Byrd.
I will ask unanimous consent that an introductory statement which I have prepared be put in the record at this point. For the benefit of those who are here and I will not read it in toto.
[The statement referred to follows:] STATEMENT OF SENATOR BIRCH BAYH, CHAIRMAN, SENATE SUBCOMMITTEE ON
This hearing has been called to consider Senate Joint Resolution 106, which purposes an amendment to the Constitution requiring the reconfirmation of all federal judges after a term of eight years. We are pleased to have with us today the distinguished senior Senator from Virginia, Harry F. Byrd, Jr., who introduced S.J. -Res. 106. We are also fortunate to have several outstanding legal scholars as witnesses today; Professor Paul Freund of the Harvard Law School; Mr. Bernard Segal, former President of the American Bar Association : Professor Philip Kurland of the University of Chicago Law School; and Mr. Paul M. Shuford, President of the Richmond Bar Association.
Article III of the Constitution provides that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior." S.J. Res. 106 would alter that Article by providing federal judges with only an eight year term, during good behavior. During the final year of each judge's appointment his name would be placed in nomination for another term, and the Senate would be asked whether it wished to advise and consent to the nomination. This procedure, however, would not apply to judges currently on the bench; they would continue to serve under Article III's provisions.
I must state, in all candor, that I am not currently persuaded that the proposed change in Article III's provisions is necessary and proper. But my mind is not closed to argument on this or any other issue, and that is why I am looking forward to discussing this proposal with today's very distinguished witnesses.
The judiciary today, as in other times, is not completely free from problems which are the legitimate concern of the legislative branch. For a number of years, I have been working on legislation which would require the very highest standards of ethics in our judges, and that battle is not yet won. We are all also concerned with ensuring that only the most highly qualified able, and professional