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overlap in the case of “great offenses,” there exists an implied power to remove judges whose "misbehavior” falls short of “high crimes and misdemeanors." 285 Traditionally forfeiture upon breach of a condition subsequent was a judicial function, and a forfeiture of judicial office therefore falls within the Article III “judicial power.” Congress may add the forfeiture of a judicial office for misbehavior to the forfeiture jurisdiction or, if necessary, it may under the “necessary and proper" clause provide a new remedy for forfeiture of judicial office in order to effectuate the implied power to remove a judge whose tenure was terminated by his misbehavior.

The argument that the impeachment provisions bar the way would sacrifice a necessary power to a canon of construction. With Chief Justice Marshall, I should want nothing less than an express prohibition to preclude beneficial exercise of an implied power.?

266 Those who would deny to Congress the right to select the means for the termination which is implicit in the Constitutional text-"during good behavior”—have the burden of establishing the preclusion. The several "exclusivist” arguments do not sustain the burden. Having rejected the argument that an express provision for jury trial in criminal cases barred such trial in civil cases, the Framers would hardly have maintained that an express provision for impeachment excluded all other means of removal, particularly when that would make it impossible to reach a judge who had breached “good behavior” but could not be impeached for a "high crime and misdemeanor." The argument of “absolute independence'' seeks to override the plain implications of the "good behavior” provision by a concept that found no expression either in the Constitution or in the several Conventions.

Rarely is it given to a man to brush the accumulated dust of generations from the Constitution and to perceive afresh its rational design.267 Such a man was Burke Shartel, who first saw the claim for exclusivity of impeachment in all its nakedness and furnished an analytical structure for judicial removal of judges that in bold outline still stands up. His analysis is not scornfully to be dismissed as did Congressman Celler when it was made the basis of legislation offered in the House: "It scarcely can be believed that the framers intended vesting Congress with an important power [to pass enabling legislation) and then so skillfully concealed it it could not be discovered save after 150 years. "'268 The difference between "good behavior” and “high crimes and misdemeanors” was “skillfully concealed” only from those who did not pause to turn the pages of history, and to ask: what becomes of "good behavior” if impeachment is restricted to "high crimes and misdemeanors.” On Celler's reasoning the Copernican view of the universe must be discarded because for several millennia astronomers were lost in the Ptolemaic spheres within spheres; and Columbus should never have set forth in the Santa Maria because, as men believed for centuries, it would fall off the edge of the world. Even in our tradition bound law, when it was pressed upon Chief Justice Holt that the novelty of the claim argued against it, he replied, "that is an argument when it is founded upon reason, but it is none, when it is against reason. 1:26 9 It is never too late to heed the voice of reason, and if "reason” negates the exclusivist argument, it must prevail.

265 That power extends to serious offenses which also constitute "misbehavior" notwithstanding they are comprehended by “high crimes and misdemeanors.” Of course, it is open to Congress to impeach for such offenses whenever it desires.

266 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 409 (1819): the Constitution does not "prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. To make impeachment the exclusive means of removal, said Elias Boudinot in the First Congress, "would be derogatory to the powers of Government, and subversive of the rights of the people." 1 ANNALS OF CONG., supra note 2, 468.

267 In an article, “Back to the Constitution," Justice Jackson, then Solicitor General, compared the recent emergence of the constitutional text from beneath a laissez faire gloss to the rediscovery of an Ol. Master after the retouching brushwork of succeeding generations had been removed, 25 A.B.A.J. 745 (1939).

265 81 CONG. REG. 6171 (1937). Apparently Professor Kurland shares this view, for he quotes Celler. Kurland, supra note 8, at 691. Judge Otis, supra note 27, at 44, labels Shartel "the Galileo who discovered THE SCHEME which theretofore, like the moons of Jupiter, had been unseen and unsuspected by the most discerning." "THE SCHEME" had been embodied in a bill to facilitate judicial removal of judges, introduced by Hatton Sumners and Senator McAdoo. Id. at 4, 10. Otis describes Sumners as a "distinguished statesman” “to whose enlightened leadership the American people more than once has been indebted." Id. at 10. Nevertheless Sumners was gulled by THE SCHEME, which is profuselysprinkled in caps throughout Otis' pages. Id. at 4, 9, 10, 12, 13, 17, 20, 22, 29, 30, 33, 34, 35, 37, 42, 43, 44.

Having traced almost every footstep of Otis and Shartel'I must dissent from Professor Stolz's coupling of their articles as “some distinguished though partisan scholarship.” Stolz supra note 8, at 660. Otis' article, to my mind, does not represent “distinguished scholarship" but rather an hysterical piece of special pleading richly spiced with circular reasoning, and vulnerable at every joint. And it is a misnomer to label Shartel's study as “partisan scholarship," for it lacks the “character of blind or unreasonable adherence to a party"; and indeed there was no "party" until Shartel, like Galileo, saw what was hidden from the undiscerning.

269 Ashby v. White, 2 Ld. Raym. 938, 957, 92 Eng Rep. 126, 138 (1703). Compare the startling reversal in Erie R. R. v. Tompkins, 304 U.S. 64, 77-78 (1938) of a century-long course of judicial interpretation inaugurated by Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).

It is open to Congress, and I consider it highly desirable, to enact legislation under its “necessary and proper” power which would give effect to the implications of “good behavior,'' and confirm and facilitate judicial removal of judges for "misbehavior.” This is an issue that has perennially troubled the Congress 270 and which can be set at rest once and for all by an enactment which can be presented to the Supreme Court. At worst the constitutionality of removability by judges is doubtful, and the last word on constitutional doubts is for the Court. Such judicial resolution is best initiated by legislation. On many aspects of legislation the Congress must indulge in initial Constitutional construction, knowing, as the very first Congress recognized,271 that it is subject to correction by the Court. If there be indeed a constitutional doubt, the part of wisdom is to act on the counsel of Jefferson:

it is not right for those who are only to act in a preliminary form, to let their own doubts preclude the judgment of the court of ultimate decision.272 [From the Boston College Industrial and Commercial Law Review, February 1972) THE INDEPENDENCE OF THE FEDERAL JUDICIARYT

(By Frank J. Battisti*) It is indeed an honor to speak at the Boston College Law School. As you are probably aware, there has been some criticism directed at judges who deliver speeches and write articles on matters which may subsequently come before them in the course of litigation. The subject of my remarks is one that will likely not be part of any litigation that may come before me, and it is a subject of the highest interest to members of the bench and bar alike. I address myself today to the current congressional attempt to infringe upon the independence of what Professor Alexander Bickel calls “the least dangerous branch.”

As you are no doubt aware, in our unique system of government we have three independent, yet interdependent branches. Each limits and counterbalances the others so that the ship of state continues on a relatively even keel. The power of the executive and legislative branches is checked by the operation of the judicial branch; the jurisdiction of the courts is within the aegis of Congress; and the power to appoint Judges is vested in the Executive.1

A hallmark of our federal system is the independence of the judiciary. This independence is occasionally threatened by those who, while meaning well, would undermine the very attribute that makes the judicial system of this nation without peer. The paramount importance of the judiciary's independence was ably expressed by the late Circuit Judge John J. Parker:

There is one qualification which is the sine qua non of judicial success or even judicial respectability. That quality is independence The judge must not only be independent-absolutely free of all influence and control so that he can put into his judgments the honest, unfettered and unbiased judgment of his mind, but he must be so freed of business, political and financial connections and obligations that the public will

270 For citations to various bills, see Ross, su pra note ; Note, The Exclusiveness of the Impeachment Power Under the Constitution, 51 HARV. L. REV. 330 (1937); Moore, supra note 2. There is pending in Congress a bill introduced by Senator Tydings, the Judicial Reform Act, s. 1506, 91st Cong., 1st Sess (1969).

271 "Without such a power,” said Sylvester, "we could pass no law whatever"; "the Judiciary will be better able to decide the question of Constitutionality in this way than any other. If we are wrong, they can correct our error.

.'' 1 ANNALS OF CONG., supra note 2, at 562. For additional citations, see R. BERGER, CONGRESS v. THE SUPREME COURT 147 (1969).

292 Letter to James Monroe, September 7, 1797. Quoted in 3 D. MALONE, su pta note 97, at 336; 7 T. JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 173 (P. Ford ed. 1896).

With Professor Moore, given the fact that the Supreme Court leans to sustaining the constitutionality of a statute, I consider that“Congress cannot legitimately refuse to enact beneficial legislation because a confstitutional objection lurks in the background. Were it so timorous legislation would be at a standstill. Legislation does not have to be constitutional beyond every reasonable doubt before enactment is proper. The final answer to the constitutional issue of this legislation can only be given by the Supreme Court after enactment of the measure ." Moore, supra note 2, at 356. Professor Kurland, a vigorous proponent of the "exclusivist” view, states respecting disputed points, “it must be conceded that a determination by Congress that legislation on one or both of these latter points is constitutional should weigh heavily in favor of its validity if the issue comes to judicial scrutiny." Kurland, supra note 8, at 697.

† This paper was delivered on November 18, 1971, at the Boston College Law School Forum. It is reproduced without substantial change, except for the addition of footnotes. The reader is asked to bear in mind that it was written primarily to be heard, not read.

*Chief Judge, United States District Court, Northern District of Ohio. A.B., Ohio University, 1947; LL. B. Harvard University, 1950.

1 The power to appoint judges is of course, subject to the advice and consent of the Senate. U.S. Const. art. II, 82.

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recognize that he is independent. It is of supreme importance, not only that justice be done, but that litigants before the court and the public generally understand that it is being done and that the judge is beholden to not one but God and his conscience. As was well said by John Marshall in the debate on the Constitution in the Virginia Convention: “The Judicial Department comes home in its effects to every man's fireside; It passes on his property, his reputation, his life, his all

. It is not, to the last degree important, that he (the judge) should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant,

a corrupt, or a dependent Judiciary."' 2 The founding fathers were convinced that the independence of the judiciary was of paramount importance in their new government. Their belief was embodied in the Third Article of the Constitution, which provides that judges "shall hold their office during good behavior.” The framers of the Constitution sought to establish the judiciary's independence by limiting the method for removal of federal judges to a cumbersome 3 impeachment process.

Alexander Hamilton expressed their views most most clearly in his contributions to the Federalist Papers. In No. 79 he wrote:

The precautions for their (judges'] responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct 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 own constitution in respect to our own judges.

The want of a provision for removing the judges on account of inability, has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon, or would be more liable to abuse than calculated to answer any good purpose . An 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 virtual disqualification. In Federalist No. 78, Hamilton concluded his argument for an independent judiciary be elucidating the benefits of the good behavior standard:

The standard of good behavior for the continuance in office of the judiciary magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

[In view of] the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; [and] . . . nothing can contribute so much to its firmness and independence as permanency in office.

2 Parker, The Judicial Office in the United States, 20 Tenn. L. Rev. 703, 705–06 (1949).

3 The impeachment process is a cumbersome but carefully structured procedure which requires some analysis. Procedurally, the Constitution provides that a civil officer may be impeached by the House of Representatives and tried by the Senate, and, if convicted, may be removed from office and disqualified from holding any other. Congress alone possesses the power to remove all civil officers by impeachment, although many civil officials, with the exception of Article III judges, may be removed in other ways. See test at p. 440 infra. The authority for this result is implicit in various other sections of the Constitution. Id. The President has the power to remove all subordinate executive officers since the power of appointment carries with it, absent contrary authority, the power of removal. See text at p. 439 infra. Similarly, Congress may set the tenure of inferior officers and so may enforce those limits by necessary means. Id.

4 The Federalist No. 79 at 532-33 (J. Cooke ed. 1961) (A. Hamilton).

If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty.

But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community.

Upon the whole there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behaviour as the tenure of their judicial offices in point of duration, and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution,5

I. ATTEMPTS TO ENCROACH ON JUDICIAL INDEPENDENCE In the last forty years Congress has considered several alternative methods for the removal of federal judges. In 1936, two bills were introduced which sought to provide an additional avenue for the removal of federal judges. Both bills gave the power of removal to a special court and allowed an appeal to the Supreme Court. One bill, introduced by Senator McAdoo, proposed the establishment of a court to be composed of the senior judges of the ten circuit courts of appeals and the Chief Judge of the Court of Appeals for the District of Columbia. Its jurisdiction would have extended to the trial of all federal judges, except justices of the Supreme Court, upon the issue of misbehavior. Prosecution of the matter was to be entrusted to the United States Attorney General; and upon conviction and transmission of notice thereof to the President, the judge was to be automatically removed from office. The bill also provided for an appeal to the Supreme Court.

A second bill,? introduced by Congressman Summers, provided a method whereby the House of Representatives could transmit a resolution directly to the Chief Justice of the United States. This bill provided that if, in the opinion of the House, there were reasonable grounds for believing that any judge of the United States, other than a judge of any of the circuit courts of appeals or the Supreme Court, was guilty of misconduct, the Chief Justice should convene the circuit court of appeals for the circuit in which the judge's judicial district was situated to try the issue of the accused judge's good behavior. The Chief Justice would have been required to designate three circuit judges, none of whom had to be from the circuit of the accused judge, to serve on such a court. Prosecution was to be entrusted to managers designated by the House, and appeal was allowed to the Supreme Court of the United States by either the prosecution or the accused. Judgment was to be limited to removal from office.

Both of these bills were the subject of much criticism. Serious doubt existed as to whether a proceeding for removal constituted a “case or controversy” falling within the judicial power 8 of the courts under Article III.' A further objection was predicated on the argument that the impeachment provisions of the Constitution impliedly exclude all other methods for removal.10 In rejecting the two proposals, Congress wisely adhered to the belief of the framers of the Constitution that the impeachment procedure should be the sole means for removing judges.

A similar and equally unfortunate attempt to tamper with the independence of the judiciary occurred when President Franklin Roosevelt sought to “pack” the Supreme Court with Justices who would sustain the legislation of the New Deal.11 In 1937, President Roosevelt delivered a message to Congress in which he proposed a legislative plan that would have increased the number of justices from nine to a possible maximum of fifteen. Thus he brought into the open a disagreement between the Court on one hand, bent on maintaining the doctrine of judicial independence, and, on the other, those individuals and groups who wished the Court to refrain from reviewing matters of legislative policy. The unsuccessful action by President Roosevelt exemplified the angry collision between dynamic and popular presidents and the federal courts, and is illustrative of the numerous presidential and congressional efforts to encroach on the federal judiciary's independence. 12

39 (1936).

5 The Federalist No. 78 at 21-23, 525–27, 530. (J. Cooke ed. 1961) (A. Hamilton). 6 S. 4527, 74th Cong., 2d Sess. (1936). For congressional discussion of the measure see 80 Cong. Rec. 5933–

7 H.R. 2271, 75th Cong., 1st Sess. (1937). See congressional discussion of the measure in 81 Cong. Rec. 6157-96 (1937).

& "The judicial power shall extend to all cases ... [and] controversies. ..." U.S. Const. art. III, $ 2. 9 See Note, The Exclusiveness of the Impeachment Power Under the Constitution, 51 Harv. L. Rev. 330, 333-34 (1937).

10 See text at pp. 449-50 infra. 11 See generally W. Leuchtenburg, Franklin D. Roosevelt and the New Deal ch. 10 (Torchbook ed. 1963).

In a recent session of Congress, former Senator Tydings, together with other liberal senators, 13 introduced S. 1506, a bill entitled The Judicial Reform Act. 14 Although both Senator Tydings and his bill were unsuccessful in gaining popular approval, the principal aim of the bill—the establishment of a Commission on Judicial Disabilities and Tenure-still enjoys strong support. Addressing a convention of the American Bar Association, Deputy Attorney General Kleindienst expressed the Nixon Administration's approval of the bill. He stated, in part:

I (regret] : that I did not either see or get the opportunity to speak in favor of Senator Tydings' proposal with respect to judicial removal. On behalf of the Administration and on behalf of the Attorney General, we favor this very much indeed, and judicial reform. Although we have not yet presented our position to the Congress, we will in the near future. We commend his effort and his activity and his diligence in this area, and, like you, as a result of the vote you took here this morning, we are

hopeful that the Congress will enact this into legislation this year.15 In spite of its initial defeat, the terms of the proposed Act deserve considerable attention. It is to Title I of the Act that my comments and criticism will be directed, for it is this section that represents the most recent assault on the independence of the federal judiciary. Title I calls for the creation of a “Commission on Judicial Disabilities and Tenure” within the judicial branch.16 This Commission would be composed of five members, each a federal judge in active service, and would include two district judges and two circuit judges to be assigned by the Chief Justice. In addition, no judge who is a member of the Judicial Conference 17 of the United States could be assigned to the Commission.

The Act would provide that, upon a complaint, either formal or informal, of any person, the Commission could undertake an investigation of the official conduct

12 See, e.g., the discussion of Lincoln's disregard for the Court in Ex parte Merryman, in R. Cushman, Leading Constitutional Decisions 79 (13th ed. 1966).

13 The cosponsors were Senators Eagleton, Goodell, Hatfield, Magnuson, Mondale, Muskie, Scott, Stevens and Yarborough. 14 S. 1506, 91st Cong., 1st Sess. (1969).

15 Reprinted in Hearings on S. 1506 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 91st Cong., 1st & 2d Sess. 93 (1970).

16 The proposed version of S. 1506 is contained in Hearings on S. 1506 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. 10-47 (1969) (hereinafter cited as Hearings). 17 28 U.S.C. $ 331 (1970) provides:

The Chief Justice of the United States shall summon annually the chief judge of each judicial circuit, the chief judge of the Court of Claims, the chief judge of the Court of Customs and Patent Appeals, and a district judge from each judicial circuit to a conference at such time and place in the United States as he may designate. He shall preside at such conference which shall be known as the Judicial Conference of the United States. Special sessions of the conference may be called by the Chief Justice at such times and places as he may designata,

* Every judge summoned shall attend and, unless excused by the Chief Justice, shall remain throughout the sessions of the conference and advise as to the needs of his circuit or court and as to any matters in respect of which the administration of justice in the courts of the United States may be improved.

The conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary, and shall submit suggestions to the various courts, in the interest of uniformity and expedition of business.

The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law.

The Attorney General shall, upon request of the Chief Justice, report to such conference on matters relating to the business of the several courts of the United States, with particular reference to cases to which the United States is a party.

The Chief Justice shall submit to Congress an annual report of the proceedings of the Judicial Conference and its recommendations for legislation.





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