6. Earl of Shrewsbury's Case, 77 Eng. Rep. 798, 804-05 (K.B. 1610). Coke refers to clerks of the court necessary to the operation of the court. He lists three means to lose office: abuse, non-use, refusing to hold it.

7. Harcourt v. Fox, 89 Eng. Rep. 680, 720 (K.B. 1692).

A custos rotulorum must appoint a clerk of the peace for life quamdiu se bene gesserint by 1 W. & M., c. 21, § 5 (1688). The court decided that the clerk does not lose his place by removal of the customs.

On writ of error to the House of Lords, Harcourt was upheld. He could be removed only if he did not perform his office. Fox v. Harcourt, 1 Eng. Rep. 107 (H.L. 1693).

8. Reg. v. Bailiff's of Ipswich, 91 Eng. Rep. 378 (1706).

A recorder forfeits his office for failure to attend sessions of the corporation because his office is a public office relating to justice.

9. Lord Bruce's Case, 93 Eng. Rep. 870 (K.B. 1728).

A quo warranto will not be issued against a recorder for a forfeiture by non-attendance.

10. Rex v. Richardson, 97 Eng. Rep. 426 (K.B. 1758).

A quo warranto was issued against Richardson to show by what authority he claimed to be one of the postmen of the borough of Ipswich. This was another case in which the court held that absence was not sufficient cause for removal.

11. Rex v. Wells, 98 Eng. Rep. 41 (K.B. 1767).

The tenure of a recorder was quamdui se bene gesserint. The court held the absence of the recorder from one session was not sufficient cause for forfeiture for nonfeasance.

VANDERBILT LAW REVIEW

CONVERT CONTINGENCIES IN THE RIGHT TO THE

ASSISTANCE OF COUNSEL

ABRAHAM S. BLUMBERG

(April, 1967, Vol. 20, No. 3)

Removal of Federal Judges-Alternatives to Impeachment

Impeachment is the heaviest pice of artillery in the congressional arsenal, but because it is so heavy it is infit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at.1

I. INTRODUCTION

Article II, section 4 of the Constitution provides that the President, VicePresident and civil officers of the United States may be removed on impeachment and conviction of treason, bribery, high crimes and misdemeanors. This provision is the Constitution's only express means for removal of federal judges from office. The inadequacy of impeachment for the task of controlling the behavior of judges seems abundantly clear. President Jefferson described impeachment as a "bungling way of removing judges . . . an impracticable thing-a mere scare crow 2 in 1807 he predicted, "impeachment is a farce which will not be tried again.' ." Experience with impeachment, and the recent case of Lhandler v. Judicial Council of the Tenth Circuit, have in large measure confirmed the validity of President Jefferson's opinions. Presently, there is considerable feeling that, in a system as large and as overburdened as the federal judiciary, a need exists for other procedures to deal with judges who are unfit for office through some fault of their own or through physical or mental disability."

11. BRYCE, THE AMERICAN COMMONWEALTH 211 (1st ed. 1876).

21. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 295 (1923).

Letter from President Jefferson to William Branch Giles, April 20, 1807, in II JEFFERSON, WRITINGS 1191 (1904).

4 SIMPSON, FEDERAL IMPEACHMENTS (1916), comments on the inadequacies of impeachment which history had revealed through the early 1900's. BORKIN, THE CORRUPT JUDGE (1962), comments on the inadequacy of impeachment which more recent history has revealed.

5 382 U.S. 1003 (1966). This case was described by one writer as an "attempt to circumvent the inadequacies of the present removal methods." Comment, 13 U.C.L.A.L. REV. 1385 (1966). For further discussion of this case see notes 17, 18 and 19 infra and accompanying text.

6 See Hearings Before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., pt. 1 (1966), and Report of the Committee on the Removal and Discipline of Judges, Section on Judicial Administration, A.B.A. (1964) [hereinafter cited as ABA Committee Report].

This article examines the inherent weaknesses both in the impeachment probes and in current alternative statutory procedures, including constitutional and practical questions involved in establishing an effective statutory procedure to deal adequately with incompetent judges. Finally the article suggests possible means to remedy these existing weaknesses.

II. THE MISBEHAVING JUDGE

A. Inadequacy of Impeachment

Supreme Court Justices are so few in number and so often in the public eye that their misbehavior is readily susceptible to the impeachment process. But since impeachment is only available for rather serious misconduct, it is too remote a remedy to insure the efficiency or honesty of inferior court judges. For example, if a neglectful judge is constantly behind in his caseload, a censure from an official body might be appropriate, but impeachment is neither desirable nor available. History assures the judge in office that Congress will hesitate to proceed against him unless his misbehavior is severe, and even if Congress decides to investigate a judge, its procedure is so slow and cumbersome that parties are forced to litigate before him long after his misbehavior has rendered him unfit for office.10

9

The impeachment procedure is unfair to the judges as well. Impeachment trials have not been free of either political bias or tactics which would be improper in a true judicial proceeding.111 Furthermore, the legislative triers of an impeached judge have more pressing matters which consume their time, and therefore may be forced to acquit or convict the accused with only a superficial knowledge of the evidence presented.12

B. Presently Available Alternatives

Currently, two alternative statutory procedures are available to control misbehaving inferior court judges. One is aimed solely at the removal of a judge who accepts a bribe; 13 however, since many acts other than accepting bribes render a judge unfit for office, this provision's narrow scope limits its utility. A second procedure 14 authorizes the judicial council in each circuit to make orders for the administration of business in the circuit and requires the district judges promptly to carry these orders into effect. There is, however, no judicial council to make orders promoting the efficiency of judges of the Court of Claims, Customs Court, Court of Customs and Patent Appeals, or of judges of the circuit courts themselves. Further, the scope of the council's order-making power is uncertain, and legislative history clearly indicates the judicial council cannot order a judge removed from office.16

7 Simpson, op. cit. supra note 4, at 30-60, 51.

Currently, there is provision for 442 inferior court judges: 84 Circuit Court of Appeals judges, 28 U.S.C. 844(a) (1964), as amended, 80 Stat. 77 (1966); 337 district court judges, 28 U.S.C. § 133 (1964), as amended, 80 Stat. (1966); 7 Court of Claims judges, 28 U.S.C. § 171 (1964), as amended, 80 Stat. 140 (1966); 5 Court of Customs and Patent Appeals judges, 28 U.S.C. § 211 (1964); 9 Customs Court judges, 28 U.S.C. § 251 (1964).

Only 8 judges have been impeached thus far. Borkin, op. cit. supra note 4, at 198-99.

10 Id. at 633.

11 Carpenter, Judicial Tenure in the United States 101-54 (1918).

12 In one impeachment trial at one point there were only three Senators on the floor to hear the proceedings. Time, March 16, 1936, p. 18.

13 18 U.S.C. §201 (1964). This section of the code includes within it the provision which originally was 1 Stat. 117 (1790). 1 Stat. 117, which remained substantially intact until 1962, dealt only with judges who accepted bribes. See 18 U.S.C. § 207 (1954). In 1962 this provision on the bribery of judges was consolidated with the provision on the bribery of other governmental officers. S. REP. No. 2213, 87th Cong., 2d Sess. 7-8 (1962). Some commentators question whether the successful application of this provision results automatically in the removal of the guilty judge. See note 32 infra.

14 28 U.S.C. § 332 (1964): "Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect all orders of the judicial council."

15 The Court of Claims and the Court of Customs and Patent Appeals are now definitely article III courts. Glidden Co. v. Zdanok, 370 U.S. 530 (1962). Probably the same is true of the Customs Court. WRIGHT, FEDERAL COURTS 31 (1963).

.

16 "Some people have urged that the bill does not have teeth in it, that you really cannot do anything with a judge who will not decide cases. At least, it does this: If, after all the admonition that may come from the circuit judges, a district judge still persists in neglecting his work. in an extreme case it would seem to me a perfectly just cause for the remedy and method of impeachment." Testimony of Harold Vanderbilt on the bill which was to become 28 U.S.C. § 332, which he helped draft. Hearings on S. 188 Before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 1st Sess. 18 (1939).

Recently, the Judicial Council of the Tenth Circuit orderea District Judge Stephen J. Chandler to refrain from hearing cases." The United States Supreme Court declined to determine the judicial council's power to promulgate such orders; 18 however, a strong dissent urged that the judicial councils have no such disciplinary authority, and insisted that the sole disciplinary device is impeachment.19 Furthermore, the lack of elementary procedural safeguards to protect the judge's rights casts doubt upon the validity of the order-making procedure as a disciplinary device. In effect, the judicial council used this provision as a basis for suspending a judge through a proceeding both instituted and decided by that council without affording the judge an opportunity to be heard. The Chandler case revealed one further weakness in the order-making provision. If a district judge does not wish to carry out the council's order, this provision supplies no sanctions with which the judicial council can enforce its demands. In such a situation, the only present sanction is impeachment.20

The inadequacies of impeachment and present alternative statutory methods indicate the need for an improved procedure dealing with misbehaving inferior court judges. Before any improvements can be suggested, however, it is necessary to consider whether the Constitution allows any alternative to impeachment. C. Constitutional Question

Legal commentators have said that impeachment and conviction by Congress is the only constitutionally permissible method to remove a federal judge.21 Under this theory the statute empowering a court to remove a judge for accepting a bribe is unconstitutional and only constitutional amendment can improve the present defective removal procedure. There is, however, another theory that the Constitution, in addition to expressly providing for Congressional removal of a judge by impeachment and conviction, impliedly allows the judicial branch itself to remove a misbehaving judge.23 There are two sound bases for this view. First, at common law in England there were methods by which the executive, the legislature and the judiciary could remove judges.24 In the United States, the basic constitutional doctrine of separation of powers would have prevented

17 On December 13, 1965, the Judicial Council made such an order to District Judge Stephen J. Chandler Orders of the Judicial Council of the Tenth Circuit, Matter of Chandler (Special Session, Dec. 1965). Chandler requested the United States Supreme Court to stay this order. The majority refused to grant a stay on the ground that the order was only interlocutory. Chandler v. Judicial Council of the Tenth Circuit, 382 U.S. 1003 (1966). The majority found that the order was interlocutory because the Judicial Council indicated that Judge Chandler would receive a hearing at which he could be represented by counsel to contest the order. The Council issued this order. Order of the Judicial Council of the Tenth Circuit, Matter of Chandler (Special Session, Jan. 1966). On February 10, 1966, the Judicial Council cancelled the hearing because "no judge of the Western District of Oklahoma [Chandler] wishes to be heard. ." Order of the Judicial Council of the Tenth Circuit, Matter of Division of Business in the Western District of Oklahoma (Special Session, Feb. 1966). The Order of February, 1966 also restored all civil, bankruptcy, and criminal cases that had been assigned to him as of December 28, 1965, but made no provision for assignment of additional cases. On the order, thus modified, a petition for writ of prohibition or mandamus is still before the Supreme Court.

18 Chandler v. Judicial Council of the Tenth Circuit, 382 U.S. 1003 (1966). The majority did not reach a decision on the merits. See note 17 supra.

19 Justice Douglas joined Justice Black: "I think the Council is completely without legal authority to issue any such order . . . with or without a hearing . . . and that the Constitution forbids it." Id. at 1004. 20 See note 17 supra.

21 This statement was apparently first made by Alexander Hamilton in the Federalist papers: "The precautions for their judges'] responsibility are comprised in the article respecting impeachments. This is the only provision on the point which is consistent with the necessary independence of the judicia character, and is the only one which we find in our own Constitution in respect to our own judges." The Federalist No. 79, at 492-93 (Lodge ed. 1888) (Hamilton). While Hamilton's views on the Constitution are important, they are not decisive. The Supreme Court definitely rejected Hamilton's view that officers appointed by the President and Senate are only removable by the President and Senate. Myers v. United States, 272 U.S. 52 (1926).

This statement has also been made in several law review articles, notably Brown, The Impeachment of the Federal Judiciary, 26 Harv. L. Rev. 684 (1913); Otis, A Proposed Tribunal: Is it Constitutional?, 7 U. Kan. City L. Rev. 1 (1938); Note, 51 Harv. L. Rev. 330 (1937). Only the Otis article, however, took, the view that any other method of removal definitely would be unconstitutional. The Otis article relied on the Federalist statement, the constitutional provision that the House of Representatives had the sole power of impeachment and the Senate had the sole power to try impeachments and the fact that "high crimes and misdemeanors" can be interpreted to cover practically all misbehavior. Finally, this statement is made in the ABA Committee Report, supra note 6. The Report's view is based mainly on the Otis article. 22 The ABA Committee Report, supra note 6, proposes such an amendment.

23 Shartel, Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution, 28 Mich. L. Rev. pts. 1-3 485, 723, 870 (1930). On three occasions bills based on this view have been introduced in Congress. H. R. 2271, 75th Cong., 1st Sess. (1937); H. R. 9160, 76th Cong., 3d Sess. (1940); H. R. 146, 77th Cong., 1st Sess. (1941). H. R. 2271 and H. R. 146 were favorably reported to the House, H. R. Rep. No. 814, 75th Cong., 1st Sess. (1937); H. R. Rep. No. 921, 77th Cong., 1st Sess. (1941), and passed the House, but failed in the Senate. H. R. 2271 and H. R. 146 received the approval of the A.B.A. 62 A.B.A. Rep. 127 (1937); 65 A.B.A. Rep. 78-80, 100 (1940).

24 Common law methods of removal were: Executive-Prior to the Act of Settlement most judges held office at the pleasure of the king. Legislative-Impeachment, address, bill of attainder. Judicial-Quo Warranto, Scire Facias. Shartel, supra note 23, at 881-83.

the use of these methods by the executive or the legislature if the framers had not provided otherwise by formulating the impeachment procedure. However, the absence of an express constitutional provision for executive removal of judges implies a rejection by the framers of this possibility. Likewise the framers impliedly rejected all methods of removal of judges by the legislature, except impeachment, since impeachment was the only method expressly provided. Yet, because the basic doctrine of separation of powers would not apply to prevent removal of judges by the judicial branch itself, the failure of the framers expressly to provide for this method of removal in the Constitution does not necessarily imply its rejection.

Second, the separation of powers concept stresses the independence of the three branches of government. Independence logically requires not only freedom from interference by the other branches but also freedom for each branch to perform those tasks assigned to it by the Constitution. James Madison recognized this truth when he argued the importance of strictly construing a legislative check on the executive, since a broad construction would hamper the President in the performance of his executive power.

There is another maxim which ought to direct us in expounding the Constitution. . . It is . that the three great departments of Government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this Constitution . we must suppose they [the departments] were intended to be kept separate in all cases in which they are not blended, and ought, consequently, to expound the Constitution so as to blend them as little as possible.25

Just as article II, section 1 vests in the President the executive power, article III, section 1 states:

The judicial powers of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

At the time of the framing of the Constitution removing judges was a traditional exercise of the judicial power 26 and a removal procedure would seem clearly to fall within the constitutional definition of the judicial function-that is, hearing cases and controversies.27 If Madison's observation may be extended to apply to the separation of the legislative and judicial branches, the doctrine of separation of powers would require a narrow construction of impeachment as a legislative check on the judiciary, and allow the removal of judges by the judicial branch in a proper judicial proceeding.2

28

On the other hand, the concept of separation of powers does not prevent Congress from conferring on a court, by statute, jurisdiction to conduct a proceeding to remove a judge. Outside of the relatively narrow original jurisdiction of the Supreme Court, the Constitution entrusts to Congress the task of determining, within specific guidelines, the jurisdiction of the federal courts. This principle has been accepted since it was first espoused in Cary v. Curtiss: 29

tion, is possess

the judicial power.

although it has its origin in the Constitudependent for its distribution. upon. Congress, who power of investing them [courts] with jurisdiction. Since the Constitution gives the legislative branch the task of conferring jurisdiction upon the courts, it would not be inconsistent to say that the separation of

251 ANNALS OF CONG. 497 (1789).

26 Shartel, supra note 23, at 882-83.

27 U.S. CONST. art. III, § 2. A proceeding to remove a judge from office would be a case or controversy since it would involve a decision of controverted questions of law and fact and a controversy betwren the United States and an office holder over the title to an office.

28 If this construction of the Constitution were accepted, the power of the judicial branch would be more nearly co-ordinate with the power of the legislative and executive branches. Article I, § 5, provides that Congress may remove its own members and Myers v. United States, supra note 21, held that the President could remove members of the executive branch. One commentator has observed that as long as impeachment is the only way a judge can be removed, judges will be dependent on Congress and be forced to court congressional favor. SIMPSON, op. cit. supra note 4, at 73.

29 44 U.S. (3 How.) 236, 245 (1845); WRIGHT, FEDERAL COURTS 24 and cases SIMPSON, op. cit. supra note cited 4, at 24 n.26. Even in an area-rules of procedure-where some have contended that the Supreme Court had an inherent power, the Court has agreed that action by Congress is not an interference by the legislature in the judicial branch, Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941) (Congress has undoubted power to regulate the practice and procedure of federal courts), despite Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 ILL. L. REV. 276 (1928). Such power in Congress is not so great as some apparently fear. See e.g., Otis, supra note 21. Congress is limited because it must confer jurisdiction on an article III court. For a general discussion of the requirements for an article III court, see WRIGHT, FEDERAL COURTS 24-32 and cases cited therein.

powers concept on the one hand indicates only a limited power in the legislature to remove a judge and a fuller power to remove in the judiciary, but on the other hand does not prevent the legislature from conferring upon the judiciary the jurisdiction to exercise this power.30

The members of the first Congress, including many framers of the Constitution, evidently believed the Constitution permitted removal of judges by the judiciary. They passed a law 31 which apparently 32 provided that a court could remove from office a judge who accepted a bribe.

The courts have never determined whether the Constitution permits a method of removal of judges other than impeachment.33 However, the Supreme Court has determined that the express provision for impeachment does not prevent the President from removing civil officers within the executive department,34 or judges from removing administrative officers within the judicial department.35 If the Supreme Court were presented with a statute which provided a method whereby a judicial body could remove a judge from office for misbehavior, there would thus be a good basis for holding that statute constitutional.

D. Constitutional Requirements for an Improved Alternative

Assuming that the Constitution allows removal of judges by the judicial branch, it is necessary to explain more fully the constitutional requirements for such a proceeding. There are at least three such requirements.

First, the doctrine of separation of powers requires the proceeding for removal to be exclusively within the judicial branch.36 This means, for example, that the attorney general could not be permitted to initiate a removal proceeding since such authority might provide him with the power to harass a judge with whom the executive disagreed politically. Such harassment would be an unconstitutional interference in the affairs of the judicial department.

On the same basis neither the Judiciary Committee of the House nor the House of Representatives itself could initiate such a proceeding. Impeachment is an exception to the overriding policy of separation of powers, and the express provision in the Constitution must be viewed not only as a grant of power to Congress but as a limitation on this power. The impeachment procedure was made somewhat cumbersome so that the legislative branch could not remove a judge simply because of his political views.37 Therefore, to permit the House to initiate removal proceedings other than impeachment would allow it to participate in a proceeding somewhat less difficult than that expressly provided, thus defeating the policy behind the specific restriction embodied in the Constitution.

Second, because the proceeding should be exclusively within the judicial branch, only judges with good behavior tenure could preside.38 Thus, laymen or attorneys, though allowed to function in an investigatory capacity, could not sit on a tribunal to determine a case.

Third, the proceedings for removal should have the fundamental requisites of a fair trial: 39 (a) the judge should have an opportunity to be fully informed of

30 Compare: Madison saw no inconsistency in saying that the Congress could create an executive depart ment which would aid the President in performing his executive function but could not limit the ability of the President to perform his executive function by limiting his power to remove members of that department. 1 ANNALS OF CONG., 496 (1789).

31 1 State. 117 (1790) (now part of 18 U.S.C. § 201 (1964)), provided: "Every judge of the United States, who... accepts. money, or other bribe... shall be fined and imprisoned at the discretion of the court, and shall be forever disqualified to hold any office of honor, trust, or profit under the United States." 32 ABA Committee Report, supra note 6, cites Burton v. United States 202 U.S. 344 (1906), for the proposition that this "statute does not operate, ipso facto, to vacate the seat' of the convicted judge." However, Burton only held that a similar provision did not operate, ipso facto, to vacate the seat of a Senator for the reason that a Senator was not an officer under the United States Government. Id, at 369. A logical inference is that, had the Senator been an officer under the United States Government, the provision would have, ipso facto, vacated the Senator's seat. A judge is an officer under the government of the United States, U.S. CONST. art. II § 4, Burton would, therefore' seem to be authority for the proposition that 1 Stat. 117 provided an alternative method of removing judges for accepting bribes.

33 Several decisions in dictum or dissent have stated that a federal judge could be removed only through impeachment and conviction. Chandler v. Judicial Council of the Tenth Circuit, supra note 18, at 1003 (dissent); Wingard v. United States, 141 U.S. 201, 203 (1891) (dissent); Clark v. United States, 72 F. Supp. 594 (Ct. Cl. 1947) (dictum).

34 Myers v. United States, supra note 21.

35 Reagan v. United States, 182 U.S. 419 (1901); In the matter of Hennen, 38 U.S. (13 Pet.) 230 (1839). 36 Myers v. United States, supra note 21, at 116: "From this division on prínciple, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended. . . .

37 Thus the framers rejected removal by address for the reason that "judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Gov." 2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION 429 (1911).

§ 7.

38 All judges of courts within the judicial branch hold office during good behavior. U.S. CONST. art. III,

39 Powell v. Alabama, 287 U.S. 45, 68 (1932); ICC v. Louisville & N.R.R., 227 U.S. 88, 93 (1913); The Reno, 61 F.2d 966, 968 (2d Cir. 1932).