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APPENDIX B.-HIGHEST STATE COURT JUDGES: SELECTION AND REMOVAL- Continued

Method of selection

Tenure

Address

Removal by impeachment

Cause 1

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II §§ 1, 2 and 4). Majority House; majority Senate (Art. XV §§ 1, 2, and 8).

2% of H cuse elected; 2% of Senate elected (Art. VIII § 11; Stat. 77-6-1).

2% House; % Senate (Art. II
88 13, 14).

House majority; % Senate mem-
bers present (§ 54).
House majority all members;
2% Senate elected (majority
members elected) (Art. V § 1).
Majority House; 2% Senators
elected (Art. IV § 9).

Assembly impeaches; Senate
tries, 2% members present
(Art. VII § 1).

House majority of all members;
Senate elected (Art.
§§ 17, 18).

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1 Unless otherwise indicated by a #, causes are precise quotations from the appropriate provisions.

Senator BYRD. Now, Mr. Chairman, former Gov. Mills E. Godwin, Jr., had wanted to testify today. He had made plans many weeks ago to be in Europe at this time and could not be here.

I have a statement that I would like to submit to the committee from former Governor Godwin in which he endorses Senate Joint Resolution 106.

And I will read the last two paragraphs of Governor Godwin's statement:

Judicial independence is held in trust for the people and only the people should determine whether they would like to exchange some judicial independence for more judicial accountability.

It is precisely because I believe so deeply that the people of the United States should make the determination as to whether they would like Federal judges appointed for a fixed renewable term that I support this bill.

And I might point out, Mr. Chairman, that Governor Godwin, like Mr. Justice Harrison, has had a unique career. He is an attorney; he served as a member of the Virginia House of Delegates; he served as a member of the Virginia Senate, and he served as Lieutenant Governor of Virginia, and, then, he served as Governor of the Commonwealth of Virginia.

[The prepared statement of Mills E. Godwin, Jr., reads in full as follows:]

STATEMENT OF MILLS E. GODWIN, JR., FORMER GOVERNOR OF THE COMMONWEALTH OF VIRGINIA

Mr. Chairman-I am happy to have the opportunity to submit my statement in favor of the Constitutional Amendment under consideration today.

At the outset, I would like to make it clear that during by years as a practicing attorney, FBI agent, State Legislator, Lt. Governor, and Governor of Virginia, I have never heard any criticism or objection to Virginia's system that requires appellate judges of the lower courts of record to be re-elected every eight years. During my service as a member of the General Assembly of Virginia, I had the opportunity to vote on initial election of judges as well as re-election of judges. As Governor of the Commonwealth of Virginia, I appointed and concurred in the re-election of countless judges. In not one instance during my service in such capacities did a judge ever fail to be re-confirmed. However, the possibility existed and continues to exist today for the legislature of the Commonwealth of Virginia to withhold reconfirmation. I feel that the existence of this reconfirmation process has been a good influence on the judges of Virginia.

To me, it is perfectly obvious that if our system is a valid one, the same argument that supports it would apply at the federal level.

I believe very strongly in an independent judiciary, but we must face the fact that legislative and Congressional failure to check the advance of judicial supremacy has resulted at times in the establishment of a judicial oligarchy.

The whole truth is that the only determent on a judge is his conscience and history conclusively establishes in some few instances this is not a deterrent.. The honest judge, and the judge who folows the dictates of the Constitution would have nothing to fear from Congress. The dishonest judge, or the one who substitutes his own ideology for the Constitution, should not be re-confirmed. It is a well established fact that life tenure for judges was not established out of consideration for the judges but rather out of consideration for those who were to be judged.

It was felt in England that those people being judged would receive a more objective hearing of their case if the judge were free from the power of the Kingto withdraw his judge's commission or cut off his pay. This English experiencewas the basis for life tenure in the United States. By granting this life tenure, we not only made them independent of the appointing authority but also independent of the People for whose service they are appointed.

All of our original states started with life tenure for their judges, but today forty-seven of our fifty states have fixed tenure for their judges. From this one

observation alone, one can only conclude that the People desire their judges to be responsible to the People, in most instances through their elected representatives in the state legislatures, after a fixed tenure of service.

In a democracy such as ours, of the people-by the people for the people, it seems to me a logical step for the people to re-affirm their faith at fixed intervals (through their elected representatives) in judges whose decisions affect their lives from before birth until after death.

All of my public life, whether in a legislative or executive capacity, I have been accountable to the people. From experience ranging from law enforcement-to advocate to Governor, I can testify that this accountability to the people is a weighty one as you gentlemen are aware. Under the existing system of life tenure for judges, there is no accountability to anyone at any time. I cannot reconcile this existence of non-accountability in a democratic system.

Judicial independence is held in trust for the people and only the people should determine whether they would like to exchange some judicial independence for more judicial accountability.

It is precisely because I believe so deeply that the people of the United States should make the determination as to whether they would like Federal Judges appointed for a fixed renewable term that I support this Bill.

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Senator BYRD. Now, Mr. Chairman, Mr. Earl Q. Gray of Ardmore, Okla., has submitted a statement in support of Senate Joint Resolution 106. Mr. Gray is the 1971-72 chairman of the National Conference of Bar Presidents.

I want to emphasize that Mr. Gray is speaking in his capacity as an individual and not in his capacity as chairman of the National Conference of Bar Presidents.

His credentials, which I would like to read into the record, are impressive:

University of Oklahoma, A.B.; University of Chicago, cum laude, Phi Beta Kappa; president, Oklahoma Bar Association, 1964-65; president, Oklahoma Bar Foundation; member, three-man committee to investigate members of the Oklahoma Supreme Court; chairman of the Oklahoma Committee for Administration of Justice; member of the ABA Committee on Judicial Selection, Tenure and Compensation; Oklahoma State Delegate to the American Bar; and finally, Mr. Chairman, chairman of the National Conference of Bar Presidents. I understand the committee has a copy of Mr. Gray's remarks. [The statement submitted by Mr. Gray follows:]

BIOGRAPHICAL INFORMATION-EARL Q. GRAY, Esq., ARDMORE, OKLA. University of Oklahoma, A.B. 1910. University of Chicago, J.D. Cum Laude, 1913, Phi Beta Kappa, Order of Coif. 1957, President, Oklahoma Bar Association. 1964-1965, President, Oklahoma Bar Foundation. 1960-61, Member of three-man Committee to Investigate Members of Oklahoma Supreme Court, 1964–65, Chairman, Oklahoma Committee for Administration of Justice. 1967-72, Member ABA Committee on Judicial Selection, Tenure and Compensation. 1963–72, Oklahoma State Delegate to American Bar. 1971-72, Chairman of National Conference of Bar Presidents.

STATEMENT OF EARL Q. GRAY OF ARDMORE, OKLA., REGARDING S.J. RES. 106 OFFERED BY SENATOR BYRD OF VIRGINIA

I will not preface this statement with any reference to my own record. I will furnish Senator Byrd with a brief biographical sketch. He may use part of it or none of it as he wishes. I should, however, make clear that I speak for myself only and not for any group or organization of which I may be a member.

The proposed joint resolution would alter the provision of the constitution which gives members of the Federal Judiciary life tenure and bring their tenure up for review after each 8 years of service. I would definitely favor such a constitutional amendment.

When I was in a one room grade school in the Texas Panhandle, the teacher and our small textbook on "Government" told us that there were three branches of the government; executive, legislative and judicial, each independent of the control of the other and that their independence was protected by the constitution. Years later the members of the Law Faculty at the University of Chicago told us much the same thing, but one instructor after relating a decision of the Supreme Court added, "and there is no appeal from that Court on this earth." We, of course, knew that. We did not look at it as a warning of things to come, as we might have done. For many years what the teachers had told us about the independence of the three separate branches of the government remained substantially correct.

The constitution says nothing about any such warning. The requirement of the warning was an enactment of a constitutional amendment by the five man majority of the Court. The requirement that he would be furnished a lawyer at the expense of the state during the investigation proceedings if he is unable to pay one was also an enactment of new law by the five men.

The Supreme Court had always had the power to decide first whether they had jurisdiction and then to decide the issues as they wished; and their decision was final-no appeal on this earth. Prior to and during my law school days, they in general exercised judicial restraint. They quite well stayed within the guidelines of prior decisions of their own Court, gave reasonable consideration to decisions of other courts, respected the rule that powers not granted to the Federal government were reserved to the state, ruled business to be interstate commerce only when it was moving interstate, gave reasonable credence to state-court judgments, did not unwarrantably free state-convicted criminals, deferred generally to state court interpretation of their own laws and constitutions and followed other time tested rules.

Justice Cardozo said:

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains."

Chief Justice Charles Evan Hughes said:

"We do not write on a blank sheet. The Court has its jurisprudence, the helpful repository of the deliberate and expressed convictions of generations of sincere minds addressing themselves to exposition and decision, not with the freedom of casual critics or even of studious commentators, but under the pressure and within the limits of definite official responsibility."

These statements gave evidence of rules which the Supreme Court accepted as guidelines. Some relaxation of these limitations became evident after Franklin D. Roosevelt appointed several members of the Court. Then after the death of Chief Justice Vinson in 1953 the Court rapidly lost sight of those guiding principles.

In 1966 came the notorious Miranda Decision (Miranda vs. Arizona-16 L. Ed. (2) 694), a 5 to 4 decision. Chief Justice Warren wrote the opinion for the 5. He pronounced the rule that any person held for interrogation by officers must be warned in advance clearly and in unequivocal terms that he has a right to remain silent, that anything he said might be used against him and that he has a right to an attorney before answering. Without this prior warning the confession could not be used in evidence.

Though the case is known by but one title, there were, in fact, four cases involved from four different states. All four were reversed.

The decision was opposed by the four states involved in the four cases, by 27 other states which joined to support the four states involved, and by the United States. On the other hand, no one supported the decision as rendered except, of course, the convicted men.

Justice White, dissenting, stated that, "This Court, as every member knows, has left standing literally thousands of criminal convictions"-based at least in part upon such confessions.

Justice Harlan, dissenting, stated that, "The Court had jumped the rails." That the Court knew it had jumped the rails-enacted new law, soon became evident. In the very next case of the kind coming before the Court, Johnson vs.

New Jersey. 16 L. Ed. (2) 882, the Court announced that it would give the decision in the Miranda case only prospective effect and not retroactive effect. If the decision stated the law on the day it was announced, it stated the law of the day before, one year before and ten years before. Logically it should have been applied to every prior conviction.

So as appears, the country school teacher, the grade school textbook on “Government" and the law school faculty are no longer correct. The Judicial branch has taken over the Legislative field. The Miranda case is just one of many where the Court "jumped the rails."

Qualifying Jurors for the Death Penalty

In 1968 in Witherspoon vs. Illinois, 20 L. Ed. (2) 776, in a 6 to 3 opinion the Court held that the practice followed previously for more than 100 years of "Qualifying jurors for the death penalty" by asking whether they were constitutionally opposed to it was all wrong and in violation of the constitution. The question was in substance merely asking them whether they would be willing to return a verdict under the existing law. As long as the state must accept jurors constitutionally opposed to a death penalty, there will be no such verdicts. Since then no person has been legally executed.

THE POLL TAX

In 1937 in Breedlove vs. Suttles, 82 L. Ed. 252, the Court with Charles Evans Hughes as Chief Justice has unanimously sustained the poll tax as valid. In 1966 in Harper vs. Virginia, 16 L. Ed. (2) 169 in a 6 to 3 decision written by Justice Douglas, they decided exactly to the contrary and ruled the poll tax unconstitutional.

PRAYER IN SCHOOL

In 1962 in Engle vs. Vitale, 8 L. Ed. (2) 601, the Court outlawed the practice of daily prayer in school although the prayer was undenominational and its participation on the part of the students was voluntary.

BIBLE READING

In 1964 the Court, in School District of Abington, Twp. vs. Schempp, 10 L. Ed. (2) 844 held that the reading without comment of verses from the Bible and the recitation of the Lord's Prayer by the students in unison was in violation of the constitution.

COMMUNISITS IN GOVERNMENT

In 1966 in Elfbrandt vs. Russell, 16 L. Ed. (2) 321, the Supreme Court reversed the Supreme Court of Arizona and held that Arizona could not discharge an employee who refused to take an oath which stated in net effect that he was not a Communist. Whatever Communist Arizona had in its employ Arizona was required to keep. This was a 5 to 4 decision with Justice Douglas writing the opinion.

WELFARE WITHOUT DELAY

In 1969 the Court, in Shapiro vs. Thompson, 22 L. Ed. (2) 600, held that welfare was a constitutional right and with bland disregard for the practical consequence of its edict held that the denial of welfare payments to newly migrated welfare seekers pending a period of residence was a denial of “equal protection of the law."

These and other decisions make it most evident that the majority of the Court during those years took jurisdiction of whatever they wanted to take and ruled whatever they wanted to rule. They exercised no judicial restraint. They did not allow themselves to be restricted by the lack of basis in the statutes or in the constitution nor by earlier decisions of their own Court.

It is said that Queen Victoria when Prince Albert died bewailed, "Now there is no one to tell me 'No'." There was and is no one to tell the majority of the Court "No." So they did as they pleased. The people might object, the Congress might object, the executive might object but object was all they could do. No one could change it. It stood with the same binding effect as if it were well grounded in the statutes and constitution and in all prior decisions. When Justice White told the others that "as every member of the Court knows" the Miranda decision is

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