Despite these reforms in the Mother Country, the royal prerogative controlled judicial selection and retention in the Colonies. One reason put forth for royal appointments was the dearth of judicial talent among the Americans. As a result of continued royal interference, especially in New England, the Declaration of Independence contained in its indictment of George III:

"He has made judges dependent on his will alone, for the tenure of their offices and the amount and payment of their salaries."

With this background it is not surprising that the colonists who had been oppressed by both parliamentary and royal power should have searched for a means of preserving an independent judiciary as a bastion against the other branches of government.

Charles Warren characterized the good behavior proposal as "a cardinal principle with the colonists."

In Virginia, Thomas Jefferson's Constitution of June 12, 1776 commanded an absolute separation of powers. The same document provided for appointment of judges by the Senate and House of Delegates to serve during "good behavior.” 3 In the other fledgling states experimentation with the judiciary was the norm: Connecticut, Rhode Island and Vermont elected judges annually; New Jersey and Pennsylvania elected them every seven years; Georgia combined a system of appointment for a term and election by the legislature. Like Virginia-New Hampshire, South Carolina, North Carolina and New York provided life tenure. After extensive debate on the question of life tenure, Massachusetts followed Jefferson's Virginia plan."

Since Virginians were the prime leaders of the Constitutional Convention of 1787, it is not surprising that Governor Edmund Randolph's plan for the federal judiciary provided for service during "good behaviour." James Madison is credited with authoring this section.1o

Madison later wrote:

"The tenure by which the judges are to hold their places is as it unquestionably ought to be, that of good behavior." "1

Though there was considerable debate in the Philadelphia Convention about who should appoint judges and how they should be removed, there was little comment about tenure.'

12

Hamilton was quite outspoken on this point:

...

"The standard of good behaviour, for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government . . . If; then, the courts of justice are to be considered as the bulwark of a limited Constitution against legislative encroachment, 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 duty."

"13

The debates of the Virginia Convention of 1788 provide the most insight into the Constitution of any contemporary document, due in part to the fact that a shorthand reporter was employed. That gathering, which approved the Constitution by only 10 votes, was the scene of extensive debate on Article III. Patrick Henry and James Madison were in agreement as to the value of life tenure as a check on the legislature, though Henry warned of the proposed federal appellate power.1

14

Thus it can be seen that here was widespread acceptance of the good behavior standard at the time of the adoption of the Constitution. It must be noted though, that in every case it was assumed that the federal judiciary would play a limited role and that the Judiciary would be totally overshadowed by the other two branches.

5 S. Ervin, Separation of Powers, supra at 112.

6 Warren, The Making of the Constitution, 532 (1928).

Const. of Virginia, 1776, § 5.

87 Federal and State Constitutions 3817, House Doc. 357 (59th Cong., 2nd Sess.).

Ellis, The Jeffersonian Crisis, 7 (1971).

10 Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 Ford L. Rev. 1, 16 (1970).

11 The Federalist, No. 39.

12 S. Ervin, Separation of Powers, supra at 114; Warren, supra at 328-29.

13 The Federalist, No. 78.

14 Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 539-41 (2nd ed 1896).

The First Congress passed the Judiciary Act of 1789 giving effect to Article III's provision for lower federal courts. During the debate on this measure, Congressman Smith of South Carolina reminded Congress that what was being done could not easily be undone.

"The judges are to hold their Commissions during good behavior, and after they are appointed they are removable only by impeachment; in consequence the system must be a permanent one.'

99 15

By 1800 the country was embroiled in its first crisis. The Federalists under President Adams had passed the infamous Alien and Sedition Acts which were challenged by the interposition resolutions of Virginia and Kentucky in 1792: Federalist judges Jay, Cushing, Wilson and Iredell were utilizing the bench to expound political propaganda in charges to grand juries.1 The Federalist lame duck Congress on February 13 passed the Judiciary Act of 1801 which created separate federal circuit court judges and greatly increased federal jurisdiction. The discontent of the strong Jeffersonian areas of Virginia, Kentucky, Tennessee and North Carolina was further heightened by the act.17

The appointment of John Marshall, an outspoken enemy of Jefferson, along with other Federalist "midnight judges" was the capstone of Federalist iniquity as far as the new president-elect was concerned.

The Jeffersonian Democrat Congress of 1801 undertook to repeal the Judiciary Act of 1801 and abolish the new judgeships as well. John Taylor of Caroline was quoted with approval by Senator Breckinridge of Kentucky when he said:

"[Good behaviour] was invented in England to counteract the influence of the crown over the judges. And we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords and Commons, and ours by no similar or easy process. "The tenure, however, is evidently bottomed on the idea of securing the honesty of judges while exercising the office, and not upon that of sustaining useless or pernicious offices for the sake of the judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of government which necessarily devolves upon it, and is beyond the foresight of a constitution because it depends upon variable circumstances.'

99 18

The Jeffersonians carried the day by a single vote and abolished the new courts; Jefferson then turned to the task of ousting the judges.'

19

In 1803 John Pickering of the District Court of New Hampshire was impeached and removed from office for offenses ranging from violation of the law to drunkenness.20

The President then looked to the root of the problem, the Supreme Court. In 1803 John Marshall thwarted Jefferson's attempt at removal of the "midnight judges" by ruling that the Supreme Court had no jurisdiction to review the matter, and in dictum asserted the Court's power to hold acts of Congress unconstitutional. Faced with the powerful language of the Federalist Supreme Court in Marbury v. Madison, John Randolph of Roanoke introduced a bill of impeachment against Justice Samuel Chase. On the same day the Senate convicted Judge Pickering, the House, in what was to have been the prelude to Marshall's downfall, impeached Justice Samuel Chase. The Senate defied Jefferson and acquitted the justice.22

23

Stymied by these events, the erratic but brilliant John Randolph of Roanoke introduced an amendment which would have provided for the removal of judges upon the address of both House of Congress. This form of removal of judges was much simpler than impeachment and was the principle means of removing British judges." John Dickinson of Delaware had proposed this in lieu of impeachment

15 S. Ervin, Separation of Powers, supra at 118.

18 F. Frankfurter and J. Landis, Business of the Supreme Court, (1927) as cited in Kurland, Tenure of Federal Judges, 36 U. Chi. L. Rev. 665–666 (1969).

17 Ellis, The Jeffersonian Crisis, 16 (1971).

18 Kurland, Tenure of Federal Judges, 36 U. Chi, L. Rev. 665, 673 (1969).

19 Ibid., at 678.

20 Ferrick, Impeaching Federal Judges, supra at 26-28.

21 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

22 Ferrick, supra at 28.

23 Kurland, supra at 694.

24 12 & 13 Wm. III c. 2 (1701).

25

at the original Constitutional Convention. This method is in effect in the British Commonwealth today as well as in Massachusetts.20

No action was taken on the proposal.

After Aaron Burr's acquittal on charges of treason, President Jefferson reversed his stand of 1776 in favor of life tenure, and in 1807 recommended the adoption of a Constitutional amendment limiting tenure to a specific term of years. Senator Tiffin of Ohio offered the amendment for the administration, but it was not reported out of committee."

This apparently ended Jefferson's attempt at judicial reform.

Other Presidents also had misgivings about the extent of judicial power. Andrew Jackson's rebuke to the Court: "John Marshall has made his decision, now let him enforce it" has become a classic maxim of our federal system."

29

Presidents Lincoln, Theodore Roosevelt, Taft, and Franklin Roosevelt at one time or another all expressed doubts as to certain aspects of the judicial system. By the middle of the 19th Century, the institution of life tenure for state judges began to be questioned. As noted above, Virginia and most of the other 13 states granted life tenure to their judges in 1787. John Marshall's colleague and ideological partner Joseph Story (Associate Justice 1811-1845) pointed out that only 5 of the 24 states in the Union (1820-1836) did not grant life terms. Nevertheless, he felt compelled to conduct a stinging attack on the concept of fixed terms of federal judges.30

In 1850 Virginia abandoned life tenure and inaugurated the practice of popular election of judges." (In 1870 Virginia established its present system of judicial judicial election by the General Assembly for terms of 8 and 12 years.)

32

Today, only Massachusetts, Rhode Island and New Hampshire provide for life service.

Reflecting the growing spirit of democracy of the mid-19th Century, Andrew Johnson as a Congressman in 1845, and as a Senator in 1860, proposed to end the federal life tenure system. In 1868 as President he stated:

"It is strongly impressed on my mind that the tenure of office by the judiciary of the United States during good behavior for life in incompatible with the spirit of republican government, and in this opinion I am surely sustained by the evidence of popular judgment upon this subject in the different States of the Union."

Speaking of this effort Professor Kurland states:

"His other proposals for constitutional amendment included direct election of the President and Vice-President, provision for succession to the office of the President, and direct election of Senators. Two of his recommendations for constitutional change have been effected, one-relating to the electoral college— may be on its way to effectuation, and the fourth is again the subject of serious consideration by Congress." "35 (emphasis added)

Throughout this discussion two points remain inviolate. First, the Judiciary as the third branch of government must retain its independence. Second, while retaining its independence, the Judiciary must be subject to the same degree of checks as are the other two branches.

36

37

38

Theoretically Congress and the Executive may check the actions of the courts in several ways: 1) impeachment 2) Removal of appellate jurisdiction of the Supreme Court in general or in particular cases 3) Abolition of lower courts entirely as in the case of the Judiciary Act of 1801 and the Commerce Court in 1912 4) Alteration of the size of the Supreme Court as occurred during Reconstruction 5) Executive refusal to enforce the decrees 6) Congressional refusal to appropriate money for the operational expenses of the court.**

S. Ervin, Separation of Powers, supra at 114.

L.R.S. material; Constitution of Massachusetts (as amd) Part I, Article XXIX; Constitution of New Hampshire Article 73 (1966 amd).

Kurland, supra at 694.

R. Jackson, The Supreme Court in the American System of Government, 11 (1955).
Ibid at 78; Kurland, supra at 695.

303 J. Story, The Constitution of the U.S., § 1620, (W. Story ed. 1858).

Constitution of Virginia of 1850, Article VI, §§ 6, 10.

Constitution of Virginia of 1870, Article VI, § 5.

L.R.S. material. Table of State Judicial Tenure.

6 Messages And Papers of the President, 645 (Richardson ed. 1897).

Kurland, supra at 695.

U.8. Constitution, Article II, § 4.

Er Parte McCardle, 7 Wall (74 U.S.) 506 (1868).

Act of February 13, 1801, c. 4, 2 Stat. 89 (1801).

Kurland, supra at 683-87.

40 Article III, 1 assures that judicial salaries will not be reduced during their tenure.

Taken as a whole these draconian measures appear more than sufficient to assure that the Judiciary does not transgress its allotted bounds, yet with the exception of curbing the appellate jurisdiction and abolition of specific lower courts, these actions are all remedial in nature and are directed to limited situations.

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 has not provided a very useful means of policing the judges. After the Chase debacle, Jefferson referred to the impeachment process as “a bungling way of removing judges . . . an impractical thing-a mere scarecrow." "1 Lord Bryce, in his observations on 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." 49

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." 43

44

Only twelve times in our history has the House of Representatives voted to impeach federal officials; in only four of these cases has there been a conviction. Only fifty-five federal judges have been the subject of Congressional scrutiny— seventen resigned and eight were censured."

45

Commentators have wrangled for years as to what constitutes an impeachable offense for the judiciary, and in every case before the Senate great amounts of time have been devoted to this question. The 1912 trial of Judge Archbald of the short lived Commerce Court seemed to establish that a breach of "good behaviour" was a impeachable offense in itself and that the "high Crimes and Misdemeanors" spoken of in Article II, § 4 applied to other officers.**

In the last impeachment trial before the Senate, that of Judge Ritter in 1936, Senators Borah, La Follette, Frazier and Shipstead stated:

"It is our view that a Federal judge may be removed from office if it is shown that he is wanting in that "good behavior” designated as a condition of his tenure of office by the Constitution although such acts as disclose his want of "good behavior" may not amount to a crime.” “7

Even allowing for this stricter standard of behavior for federal judges, impeachment has not proved to be a workable device for bringing about judicial responsibility.

Another approach was reflected in the court-packing efforts of the Reconstruction Congress and President Franklin Roosevelt. These measures did not pretend to be anything but remedial in nature.

An offshoot of the 1930's controversy was legislation introduced by Representative Howard Smith of Virginia, a former judge:

"First, I will call your attention to the constitutional provision, which provides that Federal judges shall hold office not for life but during good behavior. We have rather come to assume that they hold office for life. They do not. They hold office, under the Constitution, only during good behavior. The purpose of this bill is a court to judicially try the question of the good behavior of a Federal judge against whom impeachment charges have been preferred. Under the procedure set up in this bill we would proceed just exactly as we do today up to the point where an impeachment in voted by the House of Representatives. In other words, impeachment charges would be filed against a district judge. They would go to the Committee on the Judiciary, and that committee would consider the matter thoroughly and investigate it, and it would come into the House and be debated, and we would vote upon an impeachment resolution just as we have always done. After the House has voted the impeachment resolution, then under this bill the procedure changes. Under this bill a court is set up, consisting of three judges of the circuit courts of appeals, to be selected by the Supreme Court 41 Note: Removal of Federal Judges-Alternatives to Impeachment, 20 Vand L. Rev. 723 (1967).

42 Bryce, The American Commonwealth, 158, 194 (MacMillan ed. 1908).

43 W. Wilson. Congressional Government, 275-76 (1901).

4 G. Ford, Impeachment—A Mace for the Federal Judiciary, 46 Notre Dame Lawyer 669-70 (1971).

45 See gen., J. Borkin, The Corrupt Judge (1962).

46 Kelly and Wylie, The Congressional Impeachment Power As It Relates to the Federal Judiciary, 46 Notre Dame Lawyer 678, 686 (1971).

47 Ibid. at 690.

of the United States. Those judges would then proceed to try the question of the good behavior of the judge whose good behavior has been questioned, and if upon trial of that cause they determine that his behavior was other than good behavior, he would then be removed from office; but no other penalty would attach."

19 48

This bill and the one introduced by Senator Tydings in the 90th and 91st Congress 49 would establish a commission of judges, in the nature of an Article III court, to police the judiciary. The controversy generated by this measure has been enormous.50

51

A definite cloud was thrown over this proposal by Chandler v. Judicial Council (Chandler II). There a federal district judge in Oklahoma was stripped of his cases by the Tenth Circuit Judicial Council. The Supreme Court twice evaded the question, but Black and Douglas, J.J., issued ringing warnings in dissent:

"[T]here is no power under our Constitution for one group of federal judges to censor or discipline any federal judge and no power to declare him inefficient and strip him of his power to act as a judge.'

99 52

The inefficiencies and failures of each of these methods of increasing judicial accountability compel us to consider other alternatives.

In 1787 the British provided four methods of removing judges: impeachment, the writ of scire facias which, like our quo warranto proceeding, would inquire into the legality of the judge's right to office, a bill of attainder, and address of Parliament. In this country the first has proven useless, the second would be unduly complicated, and the third prohibited by the Constitution.

53

54

The fourth, removal by address of Congress, has been suggested, but no Constitutional amendment to this end has progressed very far. In its favor, removal of judges by a simple address of Congress would at least be preferable to the tortures of the impeachment process.

Douglas, J. has stated:

"Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other Judge. He commonly works with other federal judges who are likewise sovereign. But neither one alone nor any number banded together can act as censor and place sanctions on him." 56

This view of judicial independence has led many to question to concept of lifetime appointments.

As noted above, President Andrew Johnson believed that the concept of life tenure was antithetical to our ideas of democracy.

Senator Robert M. La Follette in 1912 denounced the judicial oligarchy, which, armed with life tenure, had emasculated the progressive legislation of the early 20th Century.57 In his proposed Republican Platform of 1920, La Follette stated: "We denounce the alarming usurpation of legislative power, by the federal courts, as subversive of democracy, and we favor such amendments to the Constitution, and thereupon, the enactment of such statutes as may be necessary, to provide for the election of federal judges, for fixed terms not exceedings 10 years, by direct vote of the people." 58

We must face the fact that the Congressional failure to check the advance of judicial supremacy has resulted in the establishment of a true judicial oligarchy. This tendency on the part of the federal courts has been counter to the philosophical movement on the part of the rest of the body politic, as reflected in the fact that seven of the last thirteen amendments to the Constitution have been directed toward broadening our democracy."

59

Concurrently, every state, save three, has adopted fixed terms of years for its judiciary.

48 81 Cong. Rec. 6158 (1937).

49 S. 1506, 91st Cong. (1st Sess. 1969).

50 See gen: G. Ford, op. cit.; Comment: The Limitations of Article III on the Proposed Judicial Removal Machinery: S. 1506, 118 U. Pa. L. Rev. 1064 (1970); S. Ervin, Separation of Powers op. cit.

51 398 U.S. 74 (1970).

52 398 U.S. 74 at 137 (Douglas, J. dissenting).

53 Judicial Removal Machinery, 118 U. Pa. L. Rev. 1067, n. 14. (1970).

54 U.S. Constitution, Article I, § 10.

55 Supra at 7.

56 Chandler (II), 398 U.S. 74 at 136.

57 LaFollette, The Political Philosophy of Robert M. LaFollette 179-180, (1920).

58 Ibid., at 419.

50 Amend. XIII-antislavery: XV-franchise for former slaves: XVII-direct election of Senators; XIX-women's franchise: XXIII-District of Columbia franchise; XXIV-poll tax removal; XXVI-eighteen year old franchise.