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that constitute the index of Constitutional interpretation.180 Of a special concern that judges be held to "higher standards,” that is, be impeachable for lesser high crimes and misdemeanors” than the President or other civil officers, there is not a trace. Instead of such a special concern there is a "legitimate textual question” whether the last minute, unexplained insertion of "other civil officers” in the Executive Article comprehends judges, who are the object of Article III.181
If the Framers intended to make judges impeachable for lesser crimes than the President and other civil officers, they chose a singularly inept way of articulating their intention, for they employed one and the same phrase, “high crimes and misdemeanors” for“ President, Vice President and other civil officers” without naming judges at all, and without the slightest intimation that "high crimes and misdemeanors” was to have two different meanings, one for judges and one for the President and other civil officers. One who would give those words two entirely different meanings, turning on the person to whom they are applied, must demonstrate that such was the manifest intention of the Framers, a demonstration that has yet to be made. And since the "independence” of judges against legislative encroachments had been a particular object of the Founders' solicitude, it would indeed be anomalous if Congress, under the Ford construction, would have more freedom to impeach judges than “other civil officers,” and this by resort to “good behavior” which was designed to afford special protection to judges.
There is yet another and weighty argument against the Otis-Ford extension of impeachment to departures from“good behavior.” In adopting "high crimes and misdemeanors,” the Framers departed from the provisions of the seven State constitutions that provided for impeachment, five of which made “maladministration" a ground for impeachment, while New York proceeded for “malconduct,' and North Carolina for“misbehavior.'' 182 Plainly the wedding of “maladministration” and “misbehavior”, to impeachment in the State Constitutions held no charms for the Framers. In fact, “maladministration” was rejected because, said Madison, “So vague a term will be equivalent to a tenure during pleasure of the Senate," and in its stead “high crimes and misdemeanors," borrowed from English, not State impeachment provisions was substituted by the Framers with knowledge that these were words of “limited," "technical meaning.” 183 Against this background, how can we attribute to the Framers an intention to include in “high crimes and misdemeanors” impeachment for "misbehavior,' a standard even more uncertain and indefinite than the discarded “maladministration”?184 To open up “high crimes and misdemeanors" for "misbehavior” would thwart the manifest purpose of the Framers to limit the scope of impeachments and to exclude "maladministration, and by the same token "misbehavior,” which did not amount to "high crimes and misdemeanors.”
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180 Consider how close to inclusion in "our history of impeachment" was the shameful impeachment of President Andrew Johnson, "one of the most disgraceful episodes in our history.” S. MORISON, supra note 89, at 721.
181 P. 1497 supra.
182 Maladministration: Delaware (1776) Art. 23, 1 B. POORE, supra note 103, at 276–77: North Carolina (1776) Art. 23, 2 id. at 1413: Pennsylvania (1776) Sec. 22, id. at 1545; Vermont (1777) Art. 20, id. at 1863; Virginia (1777), id. at 1912.
New York (1777) Art. 33, id. at 1337; New Jersey (1776) Art. 12, id. at 1312. The New York provisions, the prototype of the Article II separation of removal from subsequent indictment and criminal punishment, provided for impeachment for malconduct but "indictment for crimes and misdemeanors. Art. 34, id. at 1337. Like the other States, New York did not employ “high crimes and misdemeanors."
183 2 M. FARRAND, supra note 97, at 550. Earlier the Convention, in another context, had rejected "high misdemeanors” because it "had a technical meaning too limited,"id. at 443. Hence we may conclude that the Framers adopted the phrase for purposes of impeachment precisely because it had that technical, limited meaning. It was this meaning which is to be given to the constitutional phrase, subject to the further limitation that impeachment was to be confined to "great offenses." P. 1511 supra. Berger, Festschrift, supra note 9.
I cannot therefore concur in Professor Kurland's statement that "the content of ['good behavior'}" is “either (1) to be derived from the definition of high crimes and misdemeanors, or (2) to be left to the decision of the Senate when sitting as a court of impeachment,” Kurland, supra note 8, at 697. The content of “good behavior" at common law had no association with “high crimes and misdemeanors." See pp. 1477, 1508-10 supra. Nor may the Senate exceed the “limits” contemplated by the Framers. Berger, Festschrift, supra note 9.
184 Nathan Dane concluded that "good behavior” and its "opposite . . . 'misbehaviour,' were "equally uncertain and indefinite.” 7 N. DANE, DIGEST OF AMERICAN LAW 366 (1824).
A word about the “dilemma” with which Judge Otis sought to saddle proponents of the view that "good behavior” was enforceable by traditional means without regard to the provision for impeachment:
The proponents of the ‘hiatus' theory are confronted with this dilemma: Either they must limit the jurisdiction of the court contemplated by THE SCHEME to those cases of alleged misbehavior for which, they say, impeachment will not lie, or they must say that the provision of the Constitution that “The House of Representatives shall have the sole power of impeachment' and its companion. 'The Senate shall have the sole power to try all impeachments' are sufficiently complied
with if exactly the same powers are vested elsewhere and called by different names. Otis, supra note 27, at 33. His reference to “exactly the same powers" is in error because a forfeiture of office for misbehavior does not disqualify the officer ever to hold another federal office. Nor is removal for “misbehavior" a "different name" for "exactly the same powers” expressed in the impeachment provisions. Impeachment is confined to "high crimes and misdemeanors” and Parliament never confused the two, Otis overlooked what was perceived in the First Congress, that impeachment is a form of "supplemental security” in the event that the “executive” branch, and by the same token if the "judicial" branch, neglects to remove an unfit officer. P. 1491 supra.
There is, however, no evidence that the Framers intended to immunize judges whose misbehavior did not ascend to "high crimes and misdemeanors." Nor is there any evidence that they employed “good behavior” in other than its accepted sense-a tenure terminated by misbehavior. Unless, therefore, we are to conclude that the Framers intended that judges whose tenure had been terminated by misbehavior were nevertheless to continue in office, there must be, as at common law, a means of effectuating the termination. And since impeachment cannot serve as the means, the argument for its exclusivity fails. Finally, "good behavior” was employed to guard against legislative and executive tampering with the judiciary, not to insulate judges from removal when they misbehaved. Judicial independence, in short, rises no higher than the "good behavior” tenure in which it is expressed. And the separation of powers only guarantees, it does not alter, the tenure secured by "good behavior”; much less does it exclude the judiciary from removing a judge who has misbehaved.
IV. TWO ARGUMENTS MADE FOR THE STATUS QUO
A. Professor Kurland
Those who would improve the removal process, Professor Kurland suggests, are overlooking the essential problem”—the “process that has made federal judicial appointments prime patronage plums to be awarded by Senators in acknowledgement of party or personal loyalty.” The cure, he states, is to entrust judicial functions only to those who are equal to their demands.” 185 This is the counsel of perfection, as he himself recognizes: “The basic difficulty is to secure recognition of the necessity for merit appointments. How this sense of responsibility is to be secured is a question that has not yet been answered. Nor is it realistic to expect such improvement” at this time.186 No unanswerable problems are posed by the case for removal by judges on grounds of judicial “misbehavior”; and rejection of the exclusivist interpretation is therefore preferable to reliance upon a Utopian appointment process.
Another Kurland objection is that there is an "absence of a weighty demonstration of the need for legislation providing for removal of federal judges by means other than impeachment-a case that has not been made and, I think, cannot be made.” 187 If this be so, the protracted controversy about the exclusivity of impeachment has indeed been much ado about nothing. True, in the 182 years adoption of the Constitution only nine judges have been impeached and only four convicted and removed. That, however, does not tell the whole story. Of the fifty-five judges who were investigated by the House,
eight (and one Justice) were impeached, eight were censured but not impeached, seventeen others resigned at one stage or another in the conduct of the investigation, while the rest were absolved of impeachable misconduct. Added to this are the undetermined number of judges who resigned upon the mere threat of inquiry; for them there are no adequate
records.188 This was after sifting" the hundreds of complaints that have been registered” over the years.189 That the adequacy of the sifting leaves something to be desired is revealed by the House's own records. To cite only a few instances involving district judges for whom a Committee of the House recommended impeachment but where the House took no action: Aleck Borman, used court money; Philip K. Lawrence, corrupt, malicious and dangerous abuses, intemperate use of ardent spirits.190 Augustus Ricks was charged with appropriating moneys of the United States to his own use; the Committee recommended censure but the House took no action.191 Grover M. Moscowitz was charged with favoritism towards former law partners in awarding receiverships and allowing excessive fees; the Committee''frowned” upon his actions but made no recommendation. 192
155 Kurland, su pra note 8, at 666. 196 Id. at 667. There is at least a doubt whether any appointment process would screen out the corrupt judge. J. BORKIN, supra note 1, at 11, concludes, “Nor is there a discernible type of corrupt judge. A study of thirty-two of the Federal judges against whom there was a considerable body of adverse evidence and who were subjects of Congressional investigation, impeachment proceedings, or criminal action indicates that they were recruited from the most diverse of environments. Many were honor graduates and became trustees of universities; one was an authority on Oriental languages; another was the brother of one of America's most distinguished historians; one entered politics as a reform candidate; and another was the daily associate of gangsters and 'ward' politicians."
167 Kurland, su pra note 8, at 697. 189 J. BORKIN, supra note 1, at 204 (emphasis added). For list of convictions, acquittals, investigations, see id. at 219-58. See also 80 CONG. REG. 5934 (1936). 81 CONG. REG. 6175, 6178 (1937). 199 81 CONG. REC. 6178 (1937) (statement by Congressman Hobbs). 190 J BORKIN, supra note 1, at 224, 237.
Assuming that the House is persuaded of the necessity to proceed, it may yet draw back from taking the time of the entire Senate to try a “crooked judge”; in the words of the verteran Hatton Sumners, Chairman of the House Judiciary Committee and participant in two of the nine impeachments,193 to do so would take “the time of the entire Senate away from all of the other business of a great nation, and make them sit there for days and days. . [W]e know they will not try district judges, and we can hardly ask them to do so. .” 194 On the other side of the Capitol Senator McAdoo stated after the conviction of Judge Halsted Ritter, “the nature of the process is such that, as evidenced in the recent proceedings, it seriously interrupts for long periods the necessary transaction of important legislative business, places an almost intolerable burden of hearing and weighing testimony upon Senators already charged heavily with other responsibilities, and for this reason alone is always resorted to with extreme reluctance, even in cases of flagrant misconduct.” As a result, he said, “the practical certainty that in a large majority of cases misconduct will never be visited with impeachment is a standing invitation for judges to abuse their authority with impunity and without fear of removal.” 195
McAdoo's remarks were beautifully illustrated by the subsequent case of District Judge Albert W. Johnson of Pennsylvania. His noisome practices extended over a twenty year period of judicial service; complaints about his official conduct started soon after he took the oath of office; and criticism erupted in the press in 1931.198 Johnson was under almost continuous investigation; a judge of his own Circuit Court of Appeals went to Washington to obtain relief.197' Hatton Sumners gave point to Congressional reluctance to impeach, saying, “If the people of the district are satisfied with Judge Johnson, I am.” 198 At last Johnson was indicted, but acquitted, and when impeachment threatened he resigned.189
191 Id. at 243.
152 Id. at 239. The pervasiveness of such practices led Senator McAdoo, who had served as Chairman of a Senate Subcommittee to investigate receivership and hankruptcy proceedings and thus learned of judicial misbehavior at first hand, to sponsor a bill for judicial trial of judicial misbehavior. McAdoo became con. vinced that “District Courts... in the management of insolvent properties and corporations, have been, in instance after instance, revealed as too frequently taking action, the effect of which has been to deprive creditors and investors of a proportionate share of the assets to which they are entitled, for the benefit of lawyers and receivers and other court officials. Favoritism and influence have too frequently ruled the selection of receivers and trustees appointed hy the courts, and the integrity and abilitv of these officers of the courts have ton frequently been disregarded for other considerations.” 80 CONG. REC. 5933 (1936).
193 J. BORKIN, supra note 1. at 197; Sumners was also associated with investigations of other judges. Ibid. 194 81 CONG. REC. 6165 (1937). Sumners knew whereof he spoke. He had participated in the impeachment of Judge Louderback and said, that it was “the greatest farce ever presented. At one time only three senators were present and for ten days we presented evidence to what was practically an empty chamber." Time Mag., Mar. 16, 1936, at 18, quoted in Note, Removal of Federal Judges: a proposed Plan, 31 Ill. L. Rev. 631, 634 (1937). Cf. note 2 supra.
195 80 CONG. REC. 5934 (1936). Woodrow Wilson said, “judging by our past experiences, impeachment may be said to be little more than an empty menace. The House of Representatives is a tardy Grand Jury, and the Senate an uncertain court." W. WILSON, supra note 4, at 276. Borkin's study left him with the inescapable feeling "that Congress is sometimes willing to suffer a misbehaving judge rather than stop the legislative activities of the United States.” J. BORKIN, supra note 1, at 195.
In the North Carolina Ratification Convention, Iredell stated that “A man in public office who knows there is no tribunal to punish him, may be ready to deviate from his duty." 4 J. ELLIOT, supra note 15, at 32.
196 J. BORKIN, su pra note 1, at 143.
197 Judge Biggs testified that he talked to “Chairman Hatton Sumners of the House Judiciary Committee, and to then Representative Estes Kefauver." Hearings Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 89th Cong. 2d sess., 19 (1966) (herinafter cited as Hearings).
189 J. BORKIN, supra note 1, at 145.
189 Id. at 185, 182. The object of his favors, his co-conspirator son, was convicted, but two of the witnesses who had themselves been convicted, refused to repeat the testimony they had given before the Grand Jury thereby contributing to Johnson's acquittal. I. at 185.
Another illustration involved the relation between the aged Third Circuit Judge Joseph Buffington and his confrere, Judge Warren Davis. In 1937, Judge Biggs testified, Buffington was 86 years old, blind, had great difficulty hearing and did not employ a law clerk. Hearings, supra note 197, at 15. Judge Davis was then Senior Judge and “was writing and selling the opinions Judge Buffington was signing." J. BORKIN, SU PTO note 1, at 101: Root Refining Co. v. Universal Oil Products Co., 169 F.2d 514, 533 (3d Cir. 1948). The situation led the other circuit judges, testified Judge Biggs, to insist that Buffington and Davis should not sit together. Hearings, supra at 21. Twice Judge Biggs called the matter to the attention of the Assistant to the Attorney General. Subsequently “a letter was written to Judge William Clark at the suggestion of Jurlge Maris and myself (Biggs) to Mr. Edgar Hoover, and I think that brought the FBI into the situation.” Toid.
Thereafter Attorney General Biddle asked Congress to impeach Judge Davis, but Davis balked the impeachment by resigning and waiving his pension rights. J. BORKIN, supra note 1, at 120. Tactfully Judge Biggs testified that we persuaded these elderly gentlemen to retire,” but “to put it quite frankly, it takes a good deal of effort and quite a long time." Hearings, supra at 15-16. He said that there is not the slightest doubt” that “the present machinery for the removal of unfit judges is inadequate.” Id. at 16. See also the comments on the acquittal of Judge Lauderback in an impeachement upon the complaint of the San Francisco Bar Association, though a majority of the Senate voted him guilty. Note, Removal of Federal Judges: A Proposed Plan, 31 ILL. L. REV. 631, 634 (1937).
Here is a case that is documented; how many were not? How many cases of censurable conduct which rendered a judge unfit for office were screened out because of doubts whether they amounted to "high crimes and misdemeanors”?? The testimony of an experienced Congressman, Hatton Sumners, who learned at first hand of the "burden” which impeachment places upon Congress, who sought only to disencumber Congress of that burden to free it for weightier and more pressing tasks, and who did not seek to encroach on the judiciary but to ask it to undertake its own housecleaning, should weigh heavily for the practical need, to borrow Senator McAdoo's phrase, of a "more certain, prompt, and effective method for dealing with” judicial abuses.200 B. Professor Stolz
Conceding that impeachment has a "deservedly bad reputation,” Professor Stolz challenges the assumption that it is an “unworkable process” and suggests that it be modernized to meet current needs” rather than resort to an alternative method of removal that “runs a substantial risk of being held unconstitutional.”201 He would restructure impeachment by “(1) Creation of a bipartisan House Committee on Judicial Fitness (for investigation and recommendations to the House]; (2) creation of a permanent professional staff as an adjunct to the Committee; (3) use of a master or masters to conduct formal evidentiary hearings for the Senate and to prepare proposed findings of fact and conclusions of law which would be the basis of argument and decision in the Senate.” This, he believes, “would be created without raising any new constitutional problems.” 202
To the contrary, he would substitute a serious constitutional doubt for what appears to be no real constitutional problem. Delegation of investigatory functions by the House to a Committee which would report to the House and which the House could reject or adopt has historical precedent. The House of Commons often referred charges to a Committee for investigation, and then debated the Committee report and voted for or against lodging articles of impeachment.203 But delegation of the hearing function by the Senate is something else again.
As Hamilton remarked, the role of the Commons as prosecutor while the Lords sat in judgment was the "model" of the parallel distribution of functions between the House of Representatives and the Senate.204 Although the Lords referred sundry matters to committees, the function of hearing and trial was never delegated, and with good reason. The notable impeachments were chiefly treason trials involving peers, and the trial of a great nobleman "for blood” could scarcely be shunted to a Committee, let alone to a "Master.” Conviction would be followed by death, fine or imprisonment, and although the governing law was the course of parliament” rather than ordinary criminal law, English impeachment was therefore clearly criminal in nature. 205 Said Blackstone, "The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords.” 206 Such trial was a substitute for trial by jury in which reference to a Master—an instrument of Chancery, not an adjunct of a criminal trial-found no place.
In the case of capital offenses and treason trials we have unmistakable evidence that trial was to be by the full House of Lords. A resolution by the Lords in 1689 recites, “That it is the ancient right of the Peers of England to be tried, only in full Parliament, for any capital offenses.” 207 In 1695 the Trial of Treasons Act provided “That upon the trial of any Peer or Peeress [for treason) ... all the Peers who have a Right to sit and vote in parliament shall be duly summoned . . . and that every Peer, so summoned and appearing at such trial, shall vote in the Trial of such Peer or Peeress so to be tried. . "? 208 Although impeachments for “high crimes and misdemeanors" did not involve “capital offenses” they were nonetheless criminal proceedings; and there is evidence that these too were to be heard by all the Lords. On June 23, 1701, the Lords resolved that “the Lords who absented
200 80 CONG. REC. 5934 (1936). In 1878, Justice Miller siad, it "must be confessed that the means provided by the system of organic law for removing a judge, who for any reason is found to be unfit for his office, is ve unsatisfactory (and) after the expdrience of nearly a century. must be pronounced inadequate. 2 N.Y. STATE BAR ASS'N REP. 40 (1878) ,quoted in Note, Removal of Federal Judges—New Alternatives to an old Problem: Chandler v. Judicial Council of the Tenth Circuit, 13 U.C.L.A. L. Rev. 1385 (1966). 201 Stolz, supra note 8, at 660, 664. 202 Id. at 667. The suggestion that the Senate should entrust the hearing of evidence to a Committee which would act as a master had been mooted by several Congressmen in the House after the Halsted Ritter impeachment proceedings. 81 CONG. REC. 6163, 6172, 6178 (1937). 203 See 4 J. HATSELL, supra note 128, at 99, 110, 111, 113, 118, 121, 122, 128, 132. 204 THE FEDERALIST No. 65, su pra note 16, at 425. 205 Berger, Fes's chrift, supra note 9. 206 4 W. BLACKSTONE, COMMENTARIES * 260. 207 Quoted in 4 J. HATSELL, su pra note 128, at 277-78. 208 Trials of Treason Act, 7 Will. 3, c. 3, § 11.
themselves from the trial of Lord Orford (impeached for “high crimes and misdemeanors”], and shall not make a just excuse for the same, are guilty of a great and wilful neglect of their duty.” 209 So too, the impeachment of Lord Chancellor Macclesfield for “high crimes and misdemeanors” in 1725 was before “the Lords being seated in their House. ..." 210 No trace of a reference to a Committee of the Lords for hearing of the evidence turned up in my search of impeachment proceedings. The reason appears in a statement made by the Managers of the Lords at a conference between members of the Lords and the Commons (reported January 18, 1691) that
In the case of impeachments, which are the groans of the people. . . and carry with them a greater supposition of guilt than any other
accusation, there all the Lords must judge.211 If the American impeachment process is also criminal, the English practice furnishes the standard, since almost the entire process was lifted bodily from the English practice.212 The American process, I have elsewhere shown, however, is not criminal,213 but the English procedure nonetheless furnished the model, as is confirmed by the Manual of Parliamentary Practice prepared for the Senate by Vice President Jefferson. Citing and in part quoting Wooddeson, Jefferson stated,
This trial ... differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevailed. ... The judgment, therefore, is to be
such as is warranted by legal principles or precedents.214 Jefferson mistakenly conceived the American impeachment to be criminal in nature, but nonetheless it was a proceeding of so high and serious a nature as to call for adoption of the earlier procedure. Impeachment, said Hamilton, was “designed as a method of National Inquest into the conduct of public men”; and it could result in a sentence of doom “to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country.” The trial was confided to the Senate rather than the Supreme Court because “The awful discretion which a court of impeachment must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.” 215 Impeachment, it cannot be unduly emphasized, was chiefly designed for the President and his high ministers, as a "bridle” on the Executive; 216 and the Framers would have been aghast had it been proposed that the trial, hearing and sifting of the evidence on the impeachment of the President or of the Secretary of Foreign Affairs should be remitted to a Master, and that it would suffice for the Senate to vote on his findings and conclusions. Impeachment was of a piece, and there is no historical warrant for breaking it into two modes, one for the President and another for inferior federal judges.
With the seven-year-long impeachment of Warren Hastings fresh in their memory,217
,217 the Senate, in the 1797 impeachment of Senator Blount,218 embraced the Lords' practice of sitting as a body-a practice from which, despite the
bus burdens it imposes, it ha never departed, ad which constitutes a constitutional interpretation entirely in harmony with the constitutional design. And if an analogous proposal to lighten the burdens of the Supreme Court may
furnish a guide, a shift of the Senate's hearing function to a Master is of doubtful consti
209 Quoted in 4J. HATSELL, supra note 128, at 279, 420. 210 16 HOWELL, supra note 173, at 767.
211 4 J. HATSELL, supra note 128, at 343, 333, 342. Lord Grenville stated in the House of Lords, "When you are called upon to arraing an individual, and that individual a judge, everyone must be anxious that the attendance should be as full as possible.” 7 PARL. DEB. 762 (1806). And see T. PLUCKNETT, supra note 173, at 232; cf. 1 W. HOLDSWORTH, supra note 28, at 389 (7th ed. 1956).
212 The formula “treason, bribery, high crimes and misdemeanors," was, but for the word “bribery," borrowed from English Law. Hamilton refers to the English “model from which the idea of this institution has been borrowed." THE FEDERALIST No. 65, supra note 16, at 425; and he stated that the experience of Great Britain affords an illustrious comment on the excellence” of “good behavior” tenure, Id. No. 78, at 511. The division of prosecuting functions between House and Senate was patently modelled on the division of functions between Commons and Lords, Id. No. 65, at 425.
213 Berger, Festschrift, supra note 9. 214 2 R. WOODDESON, supra note 176, at 611; JEFFERSON'S MANUAL, supra note 54, at 153. 215 THE FEDERALIST No. 65, Supra note 16, at 426. 216 Id. at 425. 217 George Mason referred to the Hastings trial in the Federal Convention. 2 M. FARRAND, supra note 97 at 550. Vining referred to it in the First Congress, I ANNALS OF CONG., supra note 2, at 373. The impeachment was instituted in April, 1786. 4 J. HATSELL, supra note 128, at 241 n.*. It took nearly seven years to try. Potts, supra note 148, at 33.
218 F. WHARTON, supra note 54, at 200, 257.