But more particularly in the case of the "good behavior" provision for judges, all the evidence indicates that it was conceived to protect a supposedly weak judiciary from executive and legislative pressure. Certainly no one at the Constitutional Convention suggested that the Federal courts should or could invade the domain reserved for the States and the other two branches of the Federal Government. It is instructive to look at the reasoning of Alexander Hamilton, for example: In The Federalist, No. 78, an article often cited to buttress the argument that no increase in judicial accountability should be made, Hamilton said that the judiciary "may truly be said to have neither force nor will but merely judgment **** He added: *** It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. Hamilton said further that there was no real threat to liberty from the judiciary "so long as the judiciary remains truly distinct from both the legislature and the executive." This, however, is precisely the problem today. Because of excessive activism on the part of the Federal courts, creating incursions into the realm of the other branches of government, the judiciary no longer can be said to be truly distinct from both the legislature and the executive. As a result, the liberty which Hamilton saw as secure in the late 18th century is, I feel, in peril in the eighth decade of the 20th century. For well over a century after the creation of this Nation, the unwritten canon of judicial restraint, as expressed by such eminent justices as Holmes, Brandeis, Stone, Hughes, and Frankfurter, was one of our most hallowed legal principles. To protect itself and other branches of government the Supreme Court refused to pass on political questions; it deferred to State common law principles; it refused to enunciate constitutional rulings unless absolutely necessary; it refused to rule upon moot questions; it deferred to a State's interpretation of its own constitution and statutes; and it strictly interpreted the rules concerning "standing" to bring a lawsuit. But in this century, and particularly since the 1950's, first the Supreme Court and later the lower Federal courts have cast aside much of the doctrine of restraint. The case law involved in this transition to ultra-activism is set forth in outline in the legal memorandum which I am submitting today to accompany my testimony; suffice it to say here, in summary, that in all too many instances the Federal courts have gone well beyond the sphere of interpreting the law, and into the domain of making the law. Under these circumstances, we are faced with a dilemma. Judges who are accountable to no one are invading the sphere of the elected representatives of the people, handing down decisions which have great impact on the lives of the citizenry. This situation is basically inequitable and contrary, in my judgment, to the spirit of democracy. Under existing law, no real solution is available for the present dilemma. It is not possible to legislate resurrection of the doctrine of judicial restraint. As things now stand, the only steps that can be taken when judges step out of line are six, and none of them represents a genuine reform: 1. Impeachment. 2. Removal of appellate jurisdiction of the Supreme Court-in general or in particular cases. 3. Abolition of lower courts entirely. 4. Alteration of the size of the Supreme Court. 5. Executive refusal to enforce the decree. 6. Congressional refusal to appropriate money for the operational expenses of the court. None of these possible steps would affect a structural change of the kind needed to afford true accountability. Most of them have a punitive quality which is ill suited to real solution of the problem of excessive judicial activism. The Constitution established a subtle system of checks and balances; the question is whether the checks upon the mid-20th century judiciary are not entirely too subtle. Impeachment, for example, has not provided a very useful means of policing the judges. Thomas Jefferson referred to the impeachment process as "a bungling way of removing judges *** an impractical thing-a mere scarecrow." Lord Bryce, in his observations of our Government, said: Impeachment is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. Characterizing congressional lethargy in this area, Woodrow Wilson said of impeachment: It requires something like passion to set them a-going; and nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. For lasting reform, aimed at setting the judiciary within the same restrictions on power and authority that are applicable to the legislative and judicial branches, some change in the law will be necessary. Really basic reform could best be achieved through a system automatically applicable to all members of the Federal judiciary, as I have proposed. It is nondiscriminatory in its approach and would serve to guard the interests of the people, through the representatives in the Senate, without compromising the fundamental independence of the judges who would be subject to reconfirmation. In connection with the issue of independence, we already have seen that the experience of the States indicates no jeopardy of the judiciary's indpendence need be feared from a fixed-tenure system. But we need to look further into this question of independence. We need to consider what is the real purpose of judicial independence. I think the true purpose of independence never was better stated than by Prof. Philip Kurland of the University of Chicago Law School, who, I understand, is to be a witness at this hearing. In a discussion of the proposal by former Senator Tydings of Maryland to create a commission of judges to police the judiciary, Professor Kurland stated: It should be kept in mind that the provisions for securing the independence of the judiciary were not created for the benefit of the judges, but for the benefit of the judged. 21-183-74 I believe this to be a cardinal principle. Judicial independence should not be regarded as a fortress for the members of the judiciary, which or not one believes that some judges are actual or potential oligarchs; on the contrary, it is supposed to be a shelter for the true rights of the people. It is my contention that a uniform, reasonable system of fixed tenure and reconfirmation, such as I am proposing in Senate Joint Resolution 106, would enhance the rights of the people. Therefore it is, in its main thrust and intent, in line-not in conflict-with the real purpose of judicial independence. There is no need to provide any official in a democracy with the prerogatives of a medieval baron in order to safeguard his independence of judgment. Indeed, to insulate a judge, or any other public official, from all accountability for his actions is to invite arbitrary action contrary to the will and welfare of the people. Life tenure, devoid of restraint and accountability, is not consistent with the movement of this nation toward a greater voice for the people in the operations of their government. I think it is time that we abolished life tenure. I emphasize that every State, save three-every State, save three-has some form of fixed tenure for judges. I submit that basic questions about the nature of our democracy are involved in the issue of judicial tenure. Such basic questions are best decided at the level closest to the people themselves. Therefore, I hope that this subcommittee and its parent committee will act favorably upon my proposed amendment, that there will be a full debate and final approval by the Congress, and that the question will be taken to the people through their elected representatives in the several State legislatures. I ask, Mr. Chairman, that at this point the text of Senate Joint Resolution 106 be printed at this point in the record. Senator BAYH. Without objection. [S.J. Res. 106 follows:] [S.J. Res. 106, 92d Cong., 1st sess.] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States with respect to the reconfirmation of judges after a term of eight years Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution if ratified by the legislatures of three-fourths of the several States within seven years after its submission to the States for ratification: "ARTICLE "SECTION 1. Notwithstanding the provisions of the second sentence of section 1 of article III of the Constitution, each judge of the Supreme Court and each judge of an inferior court established by Congress under section 1 of article III shall hold his office during good behavior for terms of eight years. During the eighth year of each term of office of any such judge, his nomination for an additional term of office for the judgeship which he holds shall be placed before the Senate in the manner provided by the law, for the advice and consent of the Senate to such additional term, unless that judge requests that his nomination not be so placed. Any judge whose nomination for an additional term of office is so placed before the Senate may remain in office until the Senate gives its advice and consent to, or rejects, such nomination. If the Senate gives its advice and consent to an additional term of office, that term shall commence from the date of such advice and consent, or the day immediately following the last day of his prior term of office, whichever is later. "SEC. 2. The terms of office established by section 1 of this article shall apply to any individual whose nomination for a judgeship is submitted after the ratification of this article to the Senate for its advice and consent." Senator BYRD. I would ask that a letter which I wrote to Mr. Justice Albertis S. Harrison, Jr., of the Virginia Supreme Court of Appeals, be inserted at this point in the record. [The letter referred to follows:] Hon. ALBERTIS S. HARRISON, Jr., Justice of the Supreme Court of Appeals, U.S. SENATE, Washington, D.C., May 5, 1972. MY DEAR JUSTICE HARRISON: During your long and distinguished career you have served as Commonwealth Attorney of your County of Brunswick; as a member of the Virginia Senate; as Attorney General of Virginia; as Governor of Virginia; and now as a Justice of the Supreme Court of Virginia. You are in a unique position, I feel, to answer the following question: Has the fact that Virginia's Judiciary must be reelected by the Legislature at stated intervals affected adversely the independence of the Judiciary? I seek your judgment on this matter only, if you do not feel it inappropriate for a member of the Court to comment. With best wishes, I am, Sincerely, HARRY F. BYRD, Jr. Senator BYRD. I would like to point out that Mr. Justice Harrison served as Commonwealth attorney of his county; he served as a member of the Virginia Senate; he served as attorney general of Virginia; he served as Governor of Virginia, and now he is serving as a justice of the Supreme Court of Virginia. Since he is a member of the judiciary, I did not seek Mr. Justice Harrison's views on this legislation. I did not feel that that would be appropriate. I did put one question to him, however: I said, "Because of your positions which you have held"-which I have just enumerated "you are in a unique position, I feel, to answer the following question: Has the fact that Virginia's Judiciary must be reelected by the legislature at stated intervals affected adversely the independence of the Judiciary? I would like to have my letter printed in full, and I would like to read Mr. Justice Harrison's reply: DEAR SENATOR BYRD: Your letter of the fifth, sent to my Richmond office, has just reached me. You asked the following question: Has the fact that Virginia's Judiciary must be reelected by the Legislature at stated intervals affected adversely the independence of the Judiciary? I can state unequivocally that in my opinion the necessity that judges in Virginia be reelected by the General Assembly at stated intervals has not affected adversely the independence of the Judiciary. I would observe that with one or two exceptions the members of the Judiciary in Virginia have universally been reelected by the Legislature. I might further add that during my entire career as attorney, public official and a member of the Supreme Court of Virginia I have never heard a single judge or justice in Virginia voice opposition to Virginia's system which does require reelection of judges of lower courts every eight years and of the Supreme Court every twelve years. Trusting that this answers your inquiry, and with kindest regards, I am Sincerely, A. S. HARRISON, Jr. I ask that that be printed at this point. [The letter referred to and memorandums previously submitted by Senator Byrd to appear in the record at this point are as follows:] SUPREME COURT OF VIRGINIA, Hon. HARRY F. BYRD, Jr., U.S. Senate, Washington, D.C. DEAR SENATOR BYRD: Your letter of the fifth, sent to my Richmond office, has just reached me. You asked the following question: "Has the fact that Virginia's Judiciary must be reelected by the Legislature at stated intervals affected adversely the independence of the Judiciary?" I can state unequivocally that in my opinion the necessity that judges in Virginia be reelected by the General Assembly at stated intervals has not affected adversely the independence of the Judiciary. I would observe that with one or two exceptions the members of the Judiciary in Virginia have universally been reelected by the Legislature. I might further add that during my entire career as attorney, public official and a member of the Supreme Court of Virginia I have never heard a single judge or justice in Virginia voice opposition to Virginia's system which does require reelection of judges of lower courts every eight years and of the Supreme Court every twelve years. Trusting that this answers your inquiry, and with kindest regards, I am A. S. HARRISON, Jr. MEMORANDUM OF LAW-A CHALLENGE TO THE CONCEPT OF LIFE TENURE FOR THE FEDERAL JUDICIARY (By Edward J. White, Special Assistant to Harry F. Byrd, Jr., U.S.S.) INTRODUCTION The public has experienced considerable frustration as a result of many of the controversial decisions of the federal judiciary in recent years. Controversy over the role of the federal courts is as old as the nation itself. This paper will discuss the history of the life tenure clause of the Constitution, the controversies generated by it and the federal courts themselves, and a possible solution. Some system of making the Judiciary accountable to the people must be found. The proposed amendment to have federal judges serve a fixed term of eight years subject to reconfirmation by the Senate may be the proper device. From the earliest days of English history until the 18th Century, judges were instruments of the royal authority. They held their commissions of office from the Crown and in many instances exercised it with the wishes of the Crown in mind. They served "at the pleasure of" the Crown. As noted by Senator Ervin, the challenge to royal control over the judiciary first surfaced in the struggle between Charles I and the Long Parliament, when the King insisted he had the power to remove judges from office.1 After the Glorious Revolution of 1688, the Crown, as part of the Act of Settlement of the Succession, consented to granting tenure to the judges during good behaviour, subject to removal upon "address" of both Houses of Parliament.2 In 1760 George III brought about full life tenure by extending judicial terms beyond the death of the sovereign.3 This system prevails in Great Britain and the Commonwealth today. Judges hold their office upon royal commissions, during good behaviour (usually subject to an age limitation) removable by address of both Houses of the nation involved.* 1 S. Ervin, Separation of Powers: Judicial Independence, 35 Law and Contemp. Prob. 108, 110 (1970). 212 & 13 Wm. III c. 2 (1701), as disc. in McAllister v. United States, 141 U.S. 174, 194 (1891). 31 Geo. III c. 23 (1760) as cited in McAllister v. United States, supra. 4 Library of Congress, Legislative Reference Service, Table of Tenure of British Commonwealth Judges. |
