compromise from earlier plans developed and advocated by the Illinois State and Chicago Bar Associations in the 1950's which did provide for merit selection as well as tenure.

Now with a constitutional convention in session and all parts of the state's basic law under review, consideration is again being given to a merit selection plan for Illinois judges, and it is only natural that Illinois lawyers and citizens should be looking across the Mississippi with renewed interest in the plan which this year will be celebrating the thirtieth anniversary of its adoption in the "show me" State and its eighth year in Iowa, not to mention a dozen other states where it is now in regular use. The purpose of this article is to explain the Missouri-Iowa Plan, what it does, and try to give some clues as to what might be expected if something like it were put into the Illinois judicial article by the Constitutional Convention and the voters of this State.

THREE PRINCIPAL ELEMENTS IN MISSOURI PLAN

Under the Merit Plan as it is practiced in Missouri, judges are appointed by the governor of the state from a list of names submitted to him by a nominating commission, after which they hold office subject to approval by the voters at regular intervals on a non-partisan ballot with no competing candidates. There are three basic elements in this process:

1. Nomination by a commission

2. Appointment by the governor

3. Tenure by non-competitive vote of the people.

The third element, tenure, is substantially the same as that now prevailing in Illinois. The second, appointment by a governor, is a familiar enough concept, except insofar as it is modified by the nomination procedure. It is that nominating commission that constitutes the peculiar genius of the merit plan.

In Missouri there is a state-wide commission to make nominations for the supreme and appellate courts, and a circuit commission for each circuit covered by the plan. The appellate commission consists of seven members-three lawyers, elected by the members of the bar in each of the three appellate districts, three laymen, one from each appellate district, appointed by the governor, and the chief justice as ex officio chairman. The circuit commissions are similarly constituted, except that there are five members-two lawyers elected by the bar of the circuit and two laymen appointed by the governor, with the presiding judge of the court of appeals as chairman.

HOW THE NOMINATING COMMISSION WORKS

Judge Elmo B. Hunter of Kansas City has given a good picture of the way the nominating commission operates:

"Just a few months ago" (speaking several years ago), "two of our trial judges retired because of a combination of age and illness. This created two judicial vacancies. Our Judicial nominating commission issued a public statement carried by our press and other news media that the nominating commission would soon meet to consider two panels of three names each to be sent to the governor for him to select one from each panel to fill the vacancy, and that the nominating commission was open to suggestions and recommendations of names of those members of our bar best qualified to be circuit judges.

"It received the names of many outstanding and highly qualified lawyers who were willing to be considered by the commission because of the nonpolitical merit type of selection involved. The commission on its own surveyed all eligible lawyears in the circuit to see if it had before it the names of all those who ought to be considered. From all sources the commission ended up with fifty-seven names. "After several weeks of careful study by the commission, the list of eligibles was cut to twelve, then to nine and finally to those six who the members of the commission sincerely believed to be the six best qualified of all. Those six names, three on each of the two panels, were sent to the governor, who, after his own independent consideration of them, made his selection of one from each panel." A more detailed picture of the mechanics of operation of a judicial nominating commission was recently given by Mr. Lowe Runkle, an Oklahoma City business man who is chairman of that state's commission. He said:

"As soon as a vacancy in the court occurs we try to get a story in the local papers asking for any attorneys who are interested to contact me as chairman or

any member of the commission. Whether a man submits his own name or it is submitted by someone else, an information form is sent to him, which he is asked to fill out and return to me, along with a recent picture of himself.

"On these information forms there is a place where the candidate states his willingness to serve if he is appointed. We do not want to waste our time on anyone who will not serve, nor do we want the governor to have the embarrassment of appointing a man and then have him refuse to accept it.

'Normally we try to allow from four to six weeks from the time a vacancy occurs in a court until the commission meets to select a panel. We try to set a deadline for getting the information to me so we will know who the candidates are. At least a week prior to the meeting of the commission all members are sent a copy of ecch candidate's information form so that they can familiarize themselves with their qualifications, and so they can do any investigating them might wish to do on their own.

"Usually we have no business to conduct except the selection of a panel of judges, so we get right down to it. Each candidate is taken up individually in alphabetical order. His photograph is circulated among the members, who are encouraged to speak freely and frankly about each candidate. Confidential reports from the Oklahoma State Bureau of Investigation on each candidate are relayed to the commission members by me. In addition to this the grades the candidates made in law school, if they are available, are also given to the commission, as is their rating by Martindale and Hubbell.

"Once all of the candidates have been thoroughly discussed, we are ready to vote by secret ballot. When the three persons selected by the commission are finally chosen, they are listed in alphabetical order and officially submitted to the governor in a letter from me. All pertinent information regarding each man on the panel is also sent ot the governor for his review."

STRUCTURE, OPERATION OF MERIT PLAN VARIES

There is considerably variation from state to state in the structure and the mode of operation of the commissions. I will not weary you with details of any more of them. Two institutes for members of nominating commissions have been held, one in Colorado and one in Nebraska, with speakers and panelists from Missouri, Iowa, Kansas and other Merit Plan states, to compare and discuss their common problems and their different methods of operation, and all have benefited from these. Another is planned for the coming year, probably in Kansas City.

One feature of nominating commission operations that many people find hard to believe is that they can lay politics aside and actually devote themselves to consideration of judicial qualifications. A team of political scientists made a survey of 25 years' operation of the Missouri Plan and they quoted one lay member of a St. Louis commission as expecting, when he was appointed to it, that commission discussions would of course revolve around politics and as discovering to his surprise and gratification that within the commission politics was forgotten and the discussions were limited to earnest study of the candidates' relative merits from a judicial standpoint.

NO POLITICS IN COLORADO PLAN

Only recently a Democratic politician in Colorado charged that the Colorado Merit Plan was a joke and a sham because the Republican governor had appointed mostly Republicans. He conceded that all appointees were competent and his charges drew an indignant reply from a Democratic member of the bipartisan nominating commission. He said:

"I can assure you that the committee did not at any time inquire into the political affiliation of any candidates and in fact unless a member happened to know a candidate personally the committee had no way of knowing this information. * * * I can speak of first-hand knowledge that the committee had one purpose in mind and that was the submission of 14 of the best candidates to the governor, and that if the Democrats on that committee had felt that there were any political implications in the submission of such names the Democratic members would either have resigned or raised a public outcry against any such maneuvers."

Utopian though it may seem in this intensely political state and city, here is clear evidence that judges can be and are being selected on the basis of their judicial qualifications, in places every bit as political as Illinois and Cook County. Wouldn't you like to see justice in the state administered by judges selected in that way? It is entirely possible and within reach this year.

SOME QUESTIONS ANSWERED

Other questions have been asked about merit selection, and I'd like to recall some of them now and make some observations about them, drawing not only on Missouri experience but the other merit plan states as well.

Granting that merit selection may work in smaller cities like Denver, Des Moines and Kansas City, could it possibly work in a metropolis like Chicago? Well, the answer to that one is that for nearly ten years vacancies in about 100 city court judgeships in New York which are by statute appointive by the mayor have been filled from nominations of a non-partisan nominating commission first set up by Democratic Mayor Robert H. Wagner, with bar association cooperation, and now continued by Republican (or whatever he is) John Lindsay. Getting merit selection into the New York constitution has been an uphill fight, but it is nevertheless an established fact in New York City.

On the other hand, why do we need it in a rural area like downstate Illinois where we know our lawyers and judges well enough to select them by ballot? It is certainly true that the voter in a metropolitan area like Chicago is the most helpless in looking over a long list of unfamiliar names in the ballot, but the difference is only of degree, and there must be something about the merit plan to appeal to country and small city voters or it would not have been adopted, as it has been, in states like Alaska, Idaho, Utah, Nebraska, Iowa and Vermont.

Isn't the Merit Plan merely replacing party politics with bar association politics, and isn't that worse? That depends on the structure of the nominating commission. About 20 years ago New Mexico voted on a merit plan in which the nominating commission would have been made up entirely of lawyers. It was defeated, and that argument helped to defeat it. In Missouri and most states the lawyer and lay members are evenly balanced; in Colorado and Oklahoma the laymen are in the majority, and, as I mentioned, a layman is chairman in Oklahoma. Judge Hunter has given a convincing picture of the role of the laymen in the Missouri commission:

"As the nominating commission first commences to study potential nominees, the laymen tend to be listeners. As the list of names begins to narrow and the discussions become more detailed, the laymen find themselves somewhat in the position of jurors. They carefully listen to how each lawyer member evaluates what the lawyer members are saying. If a lawyer member, in discussing the relative merits of one potential nominee over another, puts forth weak, immaterial illformed or prejudiced views, the laymen quickly discern this. They ask quite pertinent questions. They make some independent investigations. They are determined that the lay public get the best judges possible and they quickly cast aside improper or detracting consideration. They avoid the purely personal antipathies that occasionally arise among lawyers. By the time the vote is taken the laymen members are as well informed as the lawyer members. The laymen keep the entire selection process objective."

Isn't it a right of the people under a democratic system to select their public officials by popular votes? Indeed it is, and if the method of selection in Illinois is ever changed it will be because the voters of Illinois approved doing it a different way. However, not all public officials are elected today, by any means. The principle of popular self-government calls for election of policy-making officials like legislators and governors, and appointment of officers like superintendents of state institutions whose qualifications are not easily weighed by the voters. The theory of merit selection is that judges fall more in the latter class than the former, and that the voice of the people is heard in that the appointments are made by an elected official who is responsible to the people for the quality of his appointments as well as for how well he does the rest of his job. More and more, throughout the country, voters are saying that this is the way they want to express the popular will in judicial selection.

Don't Merit Plan appointments usually go to the wealthy, defense-oriented, Harvard educated corporation lawyers? This is a legend that crops up everywhere, but it has been effectually disproved. The opponents have had a song about "The Old Missouri Plan," with a line in it about "fair old Harvard." It is a fact that in 29 years not one Harvard man has gotten a judicial appointment in Missouri. (Whether that's good or bad I'll leave for others to say-I'm a Michigan man myself.) The political science survey gives statistical proof that most Missouri appointments have gone to solo or small-firm practitioners with a slight plaintiff predominance, graduates mostly of Missouri law schools.

What are the chances of minority groups getting judicial appointments under the Merit Plan? This is an important question, and worthy of our careful consideration. I recently had occasion to study the Missouri experience on this point. The black race makes up about 9 per cent of the population of Missouri. I have not been able to obtain figures on the number of black lawyers, but I believe the proportion is somewhat smaller. There have been two appointments of black lawyers, Theodore McMillian, to the circuit court in St. Louis, and Lewis Clymer, formerly a Municipal Court judge, to the Circuit Court in Kansas City. Other black lawyers have been on the panels of nominations numerous times, although not appointed. In recent months blacks in Kansas City have been agitating for more nominations and appointments of black lawyers. Surely we may all applaud the legitimate aspirations to judicial office of the lawyers in this or any minority group.

A lawyer from a minority group who possesses the desired qualifications undoubtedly has a better chance of becoming a judge under a Merit Plan than in an elective system where his supporters are by definition outnumbered at the polls. At the same time it must be said, without apology, that the Merit Plan will not help any group, minority or otherwise, to get its representatives on the bench regardless of merit. If the Merit Plan commissions ever made their nominations on any basis other than merit, they would lose their only reason for existence.

Let me add that the best way for a minority group to assure justice for its members in court is not to get one of its members on the bench. He is apt to be tough on them, or to "lean over backwards" to prove that he is not favoring them. Well qualified judges selected on merit alone are most likely to be fair to everybody that comes before them.

How much acceptance has the Merit Plan gained in other states? Let me give you the answer three ways-first geographically. Close your eyes and visualize the map of the United States, not forgetting Alaska and Puerto Rico. Start at the upper left with Alaska, then move down to Idaho and California and across to Utah, Colorado, Nebraska, Iowa, Missouri, Kansas, Oklahoma, New Mexico and Louisiana. Now move over to the east and skip around a bit-Vermont, New York, Alabama, Florida and Puerto Rico. Some or all of the judges are selected under some version of the Merit Plan in those 17 jurisdictions.

Now let's present the same list chronologically. Missouri was the first merit selection state-in 1940. (Michigan and Ohio both narrowly missed in 1938.) The war intervened and the next was Alabama in 1950. Alaska, Louisiana and Kansas followed in 1958; Nebraska and Iowa were added in 1962; New Mexico and Florida in 1963; New York in 1964; Puerto Rico in 1965; Colorado and Oklahoma in 1966; California and Vermont in 1967; and Idaho and Utah in 1968. That's one in the decade of the 40's, four in the 50's and 12 in the 60's, to give you some idea of which way the wind is blowing.

Finally, let's list them in a third sequence by how far they have gone with the plan. In California, Colorado, Alaska, Oklahoma, Vermont and Puerto Rico, merit selection is used for the filling of all vacancies in appellate, general trial and minor courts. In Idaho, Utah, Nebraska, New Mexico and Iowa it applies to the appellate and general trial courts; in Missouri to the appellate and the metropolitan trial courts; in Kansas to appellate only; and in New York to the city courts; in Alabama to the Circuit Court of Jefferson County (Birmingham); in Louisiana to the Traffic Court of New Orleans; and in Florida to the Metropolitan Court of Dade County (Miami). Nominating commissions in California, New Mexico and Puerto Rico operate by action of the governor; in New York City, the mayor; in Dade County, Florida, under county charter; in Vermont by statute; in the others by constitutional authority. The merit retention plan alone applies in Illinois and Pennsylvania to appellate and general trial courts; in California to appellate courts; and in Maryland to the People's Court of Baltimore City.

Why those variations from state to state? I think in every instance the sponsors tried for the full Merit Plan for all judges of all courts, and the modifications were a matter of legislative compromise with the opposition. Some yielded one thing, some another. The initial adoption in Missouri was a compromise, with the trial judges in the rural parts of the state left out. So were those last four states that have the retention plan without merit selection and there is still debate as to whether that is a good thing. I suggest to you that the very heart of the Merit Plan, the element to be yielded last of all, is the nominating commission, and here is where you will find that political opposition is concentrated.

Are there more states likely to go for the Merit Plan? Legislatures have already approved its submission to the voters in Indiana and Nevada. Plans have been drafted and are well on the way to submission, with bar association and other

sponsorship, in West Virginia, Arizona, Georgia and Ohio, and well supported movements are under way for either adoption or extension of merit selection in more than half of the states. There have been a few recent close defeats, in Pennsylvania, Maryland, North Dakota and in the Hawaii constitutional convention. In all these but Maryland the vote was close, and in Maryland the entire constitution was defeated on other grounds. You win some and you lose some, and the Merit Plan is winning more than it is losing because it gives the voters something they want.

[From the George Washington Law Review, March 1967]

THE CONSTITUTIONALITY OF REMOVAL AND MANDATORY RETIREMENT PROCEDURES FOR THE FEDERAL JUDICIARY: THE MEANING OF "DURING GOOD BEHAVIOUR" †

(By Robert Kramer* and Jerome A. Barron**)

Is the article III provision that judges are to serve "during good Behaviour" a grant of power to Congress to prescribe the behavior which is less than good? Or is it a means of prohibiting Congress and the Executive from tampering in any way with life tenure?

THE JUDICIAL REACTION

Expressions in decisions that "during good Behaviour" means life or permanent tenure are easily found. For example, Mr. Justice Peckham described the tenure of federal judges as "life tenure." Later Mr. Justice Sutherland referred to the status of article III judges as "life tenure," which he termed a matter of "constitutional compulsion." ." 2 These expressions typically arise in cases which do not involve article III judges but which use their status as a standard of comparison; taken at face value, they appear to preclude a judicial removal and mandatory retirement.

On the other hand, some cases use language that apparently supports a view that "during good Behaviour" implies a constitutional standard of service which would permit removal for lesser degrees of impropriety than those "high Crimes and Misdemeanors” which justify impeachment. McAllister v. United States 3 suggests that article III confers life tenure on federal judges subject to a condition of good behavior. For the Court, Mr. Justice Harlan speaks of "the principles of life tenure and good behavior established for judges of courts, in which the Constitution vests the judicial power of the United States." The implication from this language is that life tenure is conditioned by good behavior and that the two are not synonymous. Mr. Justice Field's dissent reveals that he too did not view life tenure and good behavior service as equivalent. He traced the source of the constitutional phrase "during good Behaviour" to the manner in which English judges of courts of record took their commissions following the Act of Settlement. These commissions were no longer granted durante bene blacito, at the pleasure of crown, but now quamdiu bene se gesserint, during the good behavior of the judge. But according to Mr. Justice Field, good behaviour was not an indefeasible life grant either in England, or after 1789, here. In other words, article III judges serve on a grant subject to a condition-good behavior. Under this approach, if good behavior is regarded as a contingency the non-occurrence of which may terminate the office, then "good Behaviour" has been assumed to mean any conduct which does not result in impeachment. In McAllister Mr. Justice Field referred somewhat ambiguously to the "conditional" nature of good behavior service under article III: "In my judgment good behavior during the term of [an article III judge's] . appointment is the only lawful and constitutional condition to the retention of his office." 7

This study was prepared by the authors at the request of the Subcommittee on Improvements in Judicia Machinery of the Senate Judiciary Committee, 89th Congress.

*Dean of the National Law Center, Professor of Law, George Washington University. A.B., LL.B., Harvard University. **Associate Professor of Law, George Washington University. A.B., Tufts University. LL.B., Yale University. LL.M., George Washington University.

1 Shurtleff v. United States, 189 U.S. 311, 316 (1903).

2 O'Donoghue v. United States, 289 U.S. 516, 549 (1933).

3 141 U.S. 174 (1891).

4 Id. at 190. (Emphasis added.)

Id. at 194.

U.S. Const. art. II, § 4 provides for removal from office "on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors."

7 McAllister, 141 U.S. at 195.