is a major legislative event. "The feeling cannot be escaped that Congress is sometimes willing to suffer a misbehaving judge rather than, stop the legislative activities of the United States." 44

Another drawback to impeachment is the strong partisan element that normally runs through the proceedings. For example, in the Ritter trial there were fifty-six votes for conviction, and of these fifty-six votes only five were from the same political party as the judge being tried.45 Some states have made efforts to reduce the partisan emphasis in impeachment trials by requiring the senators to take a special oath of independence when sitting as an impeachment court.46 Perhaps this increases a senator's sense of responsibility, but its utility seems doubtful. Impeachment trials also give inadequate protection to the accused judge. In a criminal trial the judge, the jury (if there is one), and the defendant must be present at all stages of the trial. The trier of fact views all the evidence and hears all the witnesses in order to determine the truth of the testimony. In an impeachment trial members of the upper house are not required to attend the whole trial. The failure to require attendance in the United States Senate has resulted in an average attendance of fifteen Senators per day during an impeachment trial.47 In the Ritter trial a House manager at one time observed only three Senators present, one of whom was using the time to write letters and was paying no attention to the proceedings.48 A judge cannot receive a fair trial when so many of the jurors have not heard the evidence against him.

Finally, the difficulty in obtaining a successful impeachment conviction creates a certain reluctance among lawyers to instigate proceedings. This reluctance stems from fear of reprisal. As Judge Jerome Frank stated when speaking of impeachment, "If some particular lawyers try to cause the removal of a judge they suspect of corruption, and if they fail, that judge probably will, in roundabout ways, visit his wrath on their clients." 49

Judicial misconduct must become quite flagrant before the organized bar as a group, or lawyers individually, will petition legislators to investigate the judge's conduct. As an example, newspapers had criticized Judge Albert W. Johnson for his conduct from the time he first received his appointment to the District Court for the Middle District of Pennsylvania in 1925. From 1930 to 1945 the judge came under continuous investigation for various acts of misconduct. Yet not until 1945 did a Justice Department attorney, working with a special subcommittee of the House Judiciary Committee under Estes Kefauver,50 finally expose Johnson and force him to resign. Their greatest difficulty was procuring enough evidence to impeach him, mainly because the bar associations refused to aid the investigation. Individual lawyers knew of various acts of misconduct but feared that they would have to disclose their information publicly before the subcommittee. Because they feared reprisal if Congress could not remove the judge, the lawyers would say to members of the subcommittee's investigation team, "We know it is a rotten, crooked set-up from beginning to end, but do not quote us, because we have to practice law here." 51

Thus a removal proceeding must have some method which allows confidential disclosure of all the facts (both favorable and unfavorable) by those working with the judge, particularly those members of the bar who are before the court. The impeachment proceeding does not do this, and as a result investigators have difficulty in gathering enough information to remove a judge.

Grounds for removal by address in the various states providing this procedure appear somewhat broader than grounds for impeachment. Some states have stated no grounds for removal; 52 others have either defined it generally in terms of "cause" or have limited it to specific acts,53 including mental and physical

44 Id. at 195.

45 Sumners, Bill H.R. 146, 13, PA. B. ASS'N Q. 150, 151 (1942). Sumners was one of the House managers during the impeachment trail of Judge Ritter.

51 Quoted in id. at 157.

52 See CONN. CONST. art. 5. § 3; KAN. CONST. art. 3, § 15; ME. CONST. art. VI, § 4; MASS. CONST. ch. III, art. 1; MD. CONST. art. IV, § 4; N.H. CONST. pt. II, art. 73; R.I. CONST. art. 10, § 4; KY. REV. STAT. § 63.020 (1962).

53 See ARK. CONST. art. 15, § 3; CAL. CONST. art. 6, § 10; DEL. CONST. art. 3, § 13; LA. CONST. art. 9, §§ 3-5; MICH. CONST. art. VI, § 25; MISS. CONST. art. 4, § 53; NEV. CONST. art. 7, § 3; N. Y. CONST. art. 6, § 9; OHIO CONST. art. 2, § 38; S.C. CONST. art. 15, § 8; TEX. CONST. art. 15, § 8; VA. CONST. art. VI, § 104; WASH. CONST. art. 4, § 9.

incapacity. The same criticisms apply to other aspects of address that apply to impeachment. A debate on an address petition will consume as much time in the legislature as an impeachment proceeding. This is especially true in states where both houses must approve the petition. Because of the time consumed, the legislature will be reluctant to begin proceedings unless the official's misconduct is flagrant. In addition, the dangers of voting along party lines are as inherent in address as they are in impeachment. Some states have tried to limit abuses of party voting by giving the governor discretion to accept or refuse the legislature's petition of address 55 In the other states the full danger of party politics remains. Recall also is an unsatisfactory method of removing a judge.56 Removal by recall depends upon voter dissatisfaction, which in turn depends upon the information which the public receives. It is the necessity for publicizing information 'which is the major source of weakness. The electorate seems hardly equipped to appraise a judge's qualifications and has no one on whom it can rely for advice. Lawyers could inform the public, but they are reluctant to do so. The voters must form their opinions on hearsay, chance impression, or party preference. The special court and commission methods for judicial removal overcome many of the difficulties present in the other plans. A special court on the judiciary consists entirely of judges, who by their own experience have greater understanding of the judiciary's problems and of the correct and applicable standards of judicial behavior than do legislators or voters. The accused judge should therefore receive a more impartial hearing before this group of experts on judicial administration than he would under the other procedures. Removal proceedings before an appointed court or commission would not be as susceptible to political pressures as would other removal proceedings. Moreover, a smaller group of experts can dispose of cases far more economically than a legislature can. Finally, both procedures generally allow removal of judges for willful misconduct and for physical or mental incapacity.

The commission plan is the better of these two procedures. First, a court on the judiciary convenes only to hear specific cases; a commission is in continuous session. Thus, in eighteen years the New York Court on the Judiciary has heard only a few cases involving judicial misbehavior and has removed few judges.57 During its first four years, the California Judicial Qualifications Commission has received 344 complaints, has dismissed 226 of them as frivolous after a summary investigation, and has caused twenty-six judges to resign.58 It seems unlikely that California has vastly more unqualified judges than New York, which leads one to conclude that the New York Court on the Judiciary has not adequately done the job.

Second, a commission has greater flexibility in dealing with minor matters than does a special court. If any complaint discloses minor misconduct, a commission can informally discuss the matter with the judge, suggesting corrections and warning him of the consequences of continued misconduct. Under the special court system, there is no group to perform this informal disciplining. A special court on the judiciary sits only as a court considering removal; it is equivalent to a state supreme court hearing removal recommendations under a commission system. A special court depends upon certain designated groups to present the complaint, but these groups have no recognized method allowing them in their official capacity to discuss informally with a judge matters concerning his conduct. Third, the commission plan permits greater confidentiality than the special court system. This protects an innocent judge's reputation from irreparable damage caused by the publicly surrounding a complaint that subsequently proves groundless. At the same time, the confidentiality removes the fear of reprisal from potential complainants. The procedure of a special court has no formal requirements restricting premature publicity (other than those which are imposed by the rules of bar associations or the attorney general) to protect the communications of the complainant and the reputation of the judge.

Within the last year the American Judicature Society has strongly recommended the adoption of the commission plan in all states as an alternative to existing removal procedures. One would hope that this plan wins approval. It best

54 See W. VA. CONST. art. VIII, § 17.

55 See Shartel, supra note 29, at 146 n.61.

56 For an extended discussion of recall, see id. at 148-52..

57 See e.g., Matter of Osterman, 13 N. Y.2d (a) (Court on Judiciary 1963); Matter of Friedman, 12 N. Y.2d (a) (Court on Judiciary 1963).

58 New Ways To Deal with Judicial Misconduct, 48 J. AM. JUD. SOC'Y 163, 164 (1965) (editorial).

59 See ibid.

satisfies the criteria of an effective removal procedure because it has the most flexibility and gives the greatest protection to both the public and the accused judge.

III. CONSTITUTIONAL PROBLEMS OF ESTABLISHING AN ALTERNATIVE PROCEDURE TO IMPEACHMENT FOR THE REMOVAL OF FEDERAL JUDGES

The previous sections have discussed the inadequacy of impeachment as a means to discipline or remove a federal judge. As matters stand now, the strongarm tactics used by the Tenth Circuit present the only alternative. Of the various procedures previously discussed, the California commission plan presents the most satisfactory supplement to impeachment.

Recently the American Bar Association Section of Judicial Administration began studying a proposal which would create a commission on judicial fitness. and a court on the judiciary for the federal judiciary.60 The commission would consist of seven district court and court of appeals judges named by the Chife Justice. It could investigate complaints against federal judges and make inquiries on its own to discover misconduct or physical or mental disability of federal judges. After a series of hearings similar to those held by the California Commission on Judicial Fitness, the commission could make recommendations to the special court as to the removal or retirement of any judge. The court on the judiciary, appointed by a majority of the Supreme Court, would consist of four district court and court of appeals judges and one Supreme Court justice. The court on the judiciary would have the power to terminate the service of any federal judge except a Justice of the Supreme Court.

Could Congress enact such a plan by legislation, or does the Constitution require a constitutional amendment? To answer these questions, one must consider two questions: First, is impeachment the only procedure for judicial removal consistent with constitutional limitations? Second, if removal by judicial action is permissible, what are the allowable grounds for so removing a federal judge? A. Is Impeachment the Exclusive Procedure to Remove a Federal Judge?

62

The constitutional provisions for removal of federal officers are fairly explicit. "The House of Representatives . . shall have the sole Power of Impeachment"; "[t]he Senate shall have the sole Power to try all impeachments"; "[t]he President, the 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." 63 Assuming that civil officers include judges, one might contend as an original proposition that the grant to the House and Senate of the power to remove judges by impeachment precludes any other removal procedure and that any legislation enacting an alternative removal procedure would therefore be unconstitutional.

However, given constitutional history and interpretation, one can argue that the Constitution does not prohibit removal by judicial action. At the beginning of the eighteenth century, the English constitutional system provided for three types of removal corresponding in modern terms to legislative, executive, and judicial procedures. 65

First, Parliament had a choice of means for removing judges: the bill of attainer, the address to the King, and impeachment. Second, the King had the power to remove judges from the superior courts-Exchequer, King's Bench, and Common Pleas. This power arose from the language in the royal patents which gave the judge tenure durante bene placito (during good pleasure or at the King's will). Under the Act of Settlement 66 the King lost this removal power, because he then

60 See 49 J. AM. JUD. SOC'Y 119 (1965).

61 U.S. CONST. art. I, § 2. 62 U.S. CONST. art. I, § 3.

63 U.S. CONST. art. II, § 4.

64 See Shartel, Federal Judges-Appointment, Supervision, and Removal-Some possibilities Under the Constitution, 28 MICH. L. REV. 876 (1930). But see Original Proposed Tribunal: Is It Constitutional?, 7 U. KAN. CITY L. REV. 3 (1938). See generally Notes, The Exclusiveness of the Impeachment Power Under the Constitution, 51 HARV. L. REV. 330 (1937); Removal of Federal Judge: A proposed Plan, 31 ILL. L. REV. 631 (1937).

65 For a full discussion of this background, see Chartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution, 26 MICH. L. REV. 870, 880-84 (1930).

66 1701, 12 & 13 Will. 3, c. 2, § 3. The Act of Settlement provided that after accession of the House of Hanover to the throne, judges' commissions would be made "quamdiu se bene gesserint and their salaries ascertained and established; but upon address of both Houses of Parliament it may be lawful to remove them." Compare U.S. CONST. art. III, § 1.

had to appoint judges quamdiu se bene gesserint (during good behavior). Parliament, however, retained the power to remove judges by bill of attainder, impeachment, and address. Although there is some dispute whether all parliamentary procedures survived the Act of Settlement, address definitely did.

Third, the judiciary had its own proceedings to divest an errant judge of office. The King's Bench by writ of scire facias could declare forfeiture of office for all judges who held office under royal patents (superior court judges). Superior courts, by quo warranto, could oust any inferior court judge, since he did not hold his position by royal patent. At common law the grounds for a forfeiture of superior and inferior court positions were misconduct, neglect of duty, or conviction of a crime. A judgment of ouster followed a forfeiture proceeding and formally removed the judge from office.

To this English background of judicial removal the members of the American Constitutional Convention applied Montesquieu's theory on the separation of powers within the federal government. They clearly intended each of the governmental branches to be independent of the other's control. Considering the available removal procedures, they believed that address deprived the judiciary of an important share of its independence by allowing Congress to oust a judge simply by a designated majority of votes.68 They specifically prohibited bills of attainder 6 and retained only impeachment.

Thus the separation-of-powers doctrine prevented any legislative removal of executive or judicial officers except by a single, expressly authorized procedure— impeachment. Likewise, the Framers wanted to ensure the judiciary's independence from executive control. To achieve this they adopted the English constitutional system of granting judges tenure "during good Behavior." 70 The Constitution gave the President the power to appoint but not the power to remove judges.

Silence in the Constitution and in the records of the Constitutional Convention concerning removal by judicial action, however, does not necessarily mean that the Farmers intended to exclude this procedure. Removal by judicial action is not inconsistent with the separation of powers concept, for the proceedings would remain entirely within the judiciary. Furthermore, the draftsmen must have known that under the established common-law meaning of the phrase "during good behavior," King's Bench could oust judges who held office by royal patents for misconduct, neglect of duties, or conviction of a crime. Perhaps the Convention thought that the federal judiciary, once established, would have the same inherent powers as the English courts to decide whether a judge forfeited his office for misbehavior.

Further, use of the term "impeach" instead of "remove" in the exclusive grant of power to Congress is significant. Impeachment has a technical meaning which need not involve removal at all. Even after he has resigned, an officer may be convicted on impeachment so that he can never hold office again. Those at the Constitutional Convention were familiar with English legal and political theory in general and with impeachment in particular. As Shartel agrues: "[I]t is hard to believe... that they used the word 'impeach' in a sense equivalent to 'remove' or in any sense but its normal technical sense.'

"" 71

Shartel might have bolstered his argument by referring to congressional action following the Convention. The first Congress enacted a statute disqualifying any federal judge who had been convicted of accepting a bribe,72 indicating that members of the first Congress did not believe that the Constitution precluded them from requiring the removal of any judge convicted of a serious crime by a court of the judicial branch.

Critics have been unwilling to accept completely the above arguments that impeachment is not the exclusive removal procedure.73 First, they doubt the 67 M. FARRAND, THE FRAMING OF THE CONSTITUTION 49 (1913).

2 RECORDS OF THE FEDERAL CONVENTION 428-29 (Farrand ed. 1911). Apparently the committeemen believed that impeachment, with its formal proceedings (one house as the accuser and the other as the court), would better protect the judge from removal on congressional whom than would address.

9 U.S. CONST. art. I, § 9.

70 U.S. CONST. art. 3, § 1.

Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution. 28 MICH. L. REV. 870, 893 (1930).

72"[T]he judges... who shall in any wise accept or receive [any bribe]... on conviction thereof shall be fined and imprisoned at the discretion of the Court: and shall forever be disqualified to hold any office of honour, trust, or profit. under the United States." Act of April 30, 1790, REV. STAT. § 5449, present version found at 18 U.S.C. 206-07 (1964).

"The sharpest critic of these arguments has been Otis, supra note 64.

English courts at common law to remove by judicial action judges having tenure during good behavior. Before the Act of Settlement, the King's Bench used a writ of scire facias to declare a forfeiture of office for a judge having tenure “at the King's pleasure." After the Act of Settlement, the King's Bench did not remove any judges whose commissions read "during good behavior." Historical research has not conclusively disclosed the effect of the Act of Settlement, but the act may have made address the exclusive means for removal. If the act precluded forfeiture of office by judicial action, it is argued, then the members of the Constitutional Convention would probably not have been familiar with judicial removal procedure and could not have intended to preserve it in the Constitution.

The views of two early commentators on the Constitution-Story and Hamilton -provide a second argument that the Constitution made impeachment the exclusive removal procedure. In The Federalist Hamilton argues that a federal judge receives tenure "during good behavior" to protect judicial independence. He then considered the impeachment articles:

[The judges] are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate, and if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our Constitution in respect to our own judges. Plainly, Hamilton did not want to allow any legislative or executive interference with the judiciary. He did not believe that a judge should be removed for inability, and presumably this included mental and physical incapacity. As he saw it,

74

[A]n attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.75

Story also made broad statements arguing that judicial removal could only be effected by impeachment. In Martin v. Hunter's Lessee and again in his Commentaries he discusses the independence of the judiciary and the mandatory requirements of article III calling for Congress to establish inferior federal courts and asks: "Could Congress create or limit any other tenure of the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions; it must be in the negative." 76

While Hamilton's and Story's statements are significant, they should be considered in context. Both men were ardent nationalists who saw a strong judiciary as an important vehicle for federal supremacy. Their arguments concerning the security of tenure (the exclusiveness of impeachment as a removal procedure) are attempts to assert judicial independence, if not judicial supremacy. For example, the quotation from the Martin case is not a holding of that case but rather a personal appeal to Congress to recognize the independence of the judiciary. Hamilton and Story did not attempt to analyze whether impeachment should be the exclusive removal procedure. Story, especially, simply assumed that a federal judge who held office during good behavior could not be removed except by impeachment.

Indeed, one might ask the meaning of the last part of Hamilton's quotation: " .. insanity without any formal or express provision may be safely pronounced to be a virtual disqualification." "Treason, Bribery, or other high Crimes and Misdemeanors" were the only enumerated grounds in the Constitution for removal by impeachment. Most of Hamilton's contemporaries believed that these criteria only applied to offenses showing moral depravity and not to conditions of incapacity." When Hamilton wrote the quoted passage, he 74 THE FEDERALIST No. 79, at 532-33 (Lodge ed. 1888) (emphasis added).

75 Ibid.

76 Martin v. Hunter's Lessee, 12 U.S. (1 Wheat.) 304, 328-29 (1816), quoted in 2 J. STORY, COMMENTARIES ON THE CONSTITUTION § 1590 (5th ed. 1891) (emphasis added).

77 For a general discussion of the meaning of impeachment in the first years of the Republic, see Turner, The Impeachment of John Pickering, 54 AM. HIST. REV. 485 (1949)..