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lawyers become federal judges. By exercising our power to refuse to advise and consent to unqualified judicial nominees, the Senate has raised the overall level of competence of our judges. Indeed, it seems to me that by allowing only the best qualified persons—in terms of professional competence and integrity-to reach the federal bench, the Senate can eliminate a substantial portion of existing discontent with the judiciary. For highly qualified judges can be counted on to follow precedent, law, and reason carefully and faithfully.

Perhaps I should indicate the reasons for my deep concern about requiring reconfirmation of federal judges. Since the beginning of our Nation, the independence of the judiciary from the vagaries of politics has been a cornerstone of our constitutional democracy. S.J. Res. 106, I fear, would undermine that independence. For no Federal judge facing a difficult, controversial or emotional case could ever forget that his decision might he held against him when his nomination for reconfirmation came before the Senate. Subtle or blatant, the views of the Senate, particularly of the Senators from the State in which the judge sat, would come into the picture. And to that extent, the fearless, impartial decision-making we so justly prize in federal judges, would be lost.

Alexander Hamilton, writing as “Publius” in The Federalist No. 78 more than 184 years ago, defended Article III's grant of life tenure this way:

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensible in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other, be fatal to their necessary independence.

Hamilton's remarks seem as apt today as they were in 1788. Federal judges are called to decide both the most serious questions of the government's power under the Constitution—as the Supreme Court is now considering the power of the government to put a man to death-and the most ordinary case of completely private rights-a simple contract dispute, for example. No matter what the issue, however, the best guarantee of impartial justice which man has devised is security for the decision-maker from the political consequences of his decision. My good friend and colleague Senator Sam Ervin spoke to this point in a slightly different context when he said :

To my mind, an independent judiciary is perhaps the most essential characteristic of a free society. From long experience as a practicing attorney, a trial judge, an appellate judge, and now a legislator, I have had an ample opportunity to observe and appreciate the safeguards embodied in the separation of powers doctrine so wisely formulated by our forefathers.

There are times, of course, when those of us in Congress, as well as other citizens, disagree with a judicial decision, and think that public policy ought to take a different track. But it does not follow from this that we should tamper with the independence of the federal judges who made the unpopular decision. For there are many other ways for us to alter Supreme Court decisions with which we disagree. If the case was decided on statutory grounds, for example, the Congress need only pass new legislation to change the decision. Even if the case rested on constitutional grounds, there are still many situations in which Congress can act by legislation to obviate legitimate objections to the decision. Moreover, the Court can be, and sometimes has been, persuaded to change its own decision, when in light of circumstance of better argument it is proper to do so. Finally, a constitutional decision can ultimately be altered by the Congress and the States, or by the people themselves, by amending the Constitution pursuant to Article V.

Of course, we cannot and should not amend the Constitution to deal with temporary problems or at a time when emotion or politics might cloud reason. Nor should we amend the Constitution until the course of Supreme Court decisions on the point in question is clear, and a substantial consensus of informed opinion has grown over a period of time that it is necessary to do so. We must study carefully and dispassionately all proposed changes in our Nation's most fundamental document, as we will study the proposal before us today. But, on occasion, the Constitution must be amended to overcome judicial decisions: we did so in 179.) with the 11th Amendment (prohibiting federal courts from hearing suits by a citizen of one State against another State); we did so in 1913 with the 16th Amendment (granting Congress the power to lay and collect income taxes): and I hope we will do so in 1972 by ratifying the proposed 27th Amendment, the Equal Rights Amendment.

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There is one final point to mention. Without the guarantee of life tenure, there is a distinct possibility that men and women of the highest integrity and legal ability, the very persons we must have on the federal bench in these turbulent times, would not be willing to make the sacrifices involved in becoming a judge.

For all these reasons I am currently concerned about the provisions of S.J. Res. 106. It seems to me that the proposal asks the American people to sacrifice the very real values of judicial independence and to risk politicization of the judiciary, without guaranteeing us any significant improvement in the court system.

Before we begin the hearing let me share with you a story, arguably in point, found in Madison's record of the Debates of the Constitutional Convention of 1787. The delegates were discussing the way in which judges should be selected. Dr. Benjamin Franklin took the floor to stress that the mode of selection was “a point of great moment.” He proceeded to tell his colleagues, according to Madison's Debates, about what he claimed was the “Scotch" method of selection.

In Scotland, Dr. Franklin said, "the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and shåre his practice among themselves."

I should add that the three plans the delegates were debating-presented by Randolph of Virginia, Pinckney of South Carolina, and Hamilton of New Yorkdiffered as to the method of the appointment of judges, but were in unanimous agreement on the necessity for life tenure during good behavior. We are here today to discuss whether that judgment of our founding fathers ought now be reversed.

Senator BAYH. Staff research on the history of the issue before us brought to light an interesting story I want to share with you. At the time our Founding Fathers were in Philadelphia debating the very matter we now have before us, namely, the means by which Federal judges, members of the Federal judiciary, should be chosen and the term for which they should serve—there were three basic plans before them. One was presented by Delegate Randolph of Virginia, and the others by Delegate Pinckney of South Carolina and Delegaté Hamilton of New York.

As I recall, the original draft of the Constitution provided for the selection of judges to be made by the U.S. Senate alone, In any event, “Madison's Debates” tells us of a speech by the good Dr. Benjamin Franklin. Now this story may or may not be true, but at least it is appropriately recorded in the "Madison's Debates."

As the delegates were discussing the ways in which the choice of judges should be made, the good Dr. Franklin took the floor and stressed that this debate was "a point of great moment.” He proceeded to tell his colleagues that he had another method that could perhaps be used, called the "Scotch" method of selection. In Scotland, Franklin said, "the nomination proceeded from the Lawyers who always selected the ablest of the profession in order to get rid of him and share his practice among themselves.”

As I said, there were three plans that the delegates were debating at that time, presented by Delegates Randolph, Pinckney and Hamilton. These plans each contained a different method for the appointment of judges, but the plans were in unanimous agreement on the necessity of life tenure during good behavior. Our purpose for being here today is to discuss whether that judgment of our Founding Fathers ought to be reversed.

I would like to insert a memorandum from the Library of Congress on the "Tenure of Federal Judges."

[The information referred to follows:]

THE LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE,

Washington, D.C., April 17, 1972. To: Senate Constitutional Amendments Subcommittee, Attention: Michael

Helfer.
From : American Law Division.
Subject : Tenure of Federal Judges.

This is in response to your inquiry and our conversation regarding the proposed limitation of the terms of federal judges as set out under S.J. Res. 106.

Presently, U.S. District Court Judges, Circuit Court of Appeals Judges, and Supreme Court Judges (the judges of the so-called Article III Courts) are appointed under the provisions of Article II, § 2 of the U.S. Constitution :

"The President ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Article III judges are said to have life tenure since, according to Article III, SI:

“The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behavior, and shall at stated Times, receive for their Services, a Compensation, which shall not diminish during their Continuance in Office."

Article III judges are subject to removal from office under the provision of Article III, § 4:

"The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes, and Misdemea nors."

Any change in the tenure provision “during good Behavior" would require a Constitutional Amendment. There are pending before the 92nd Congress at least 15 resolutions proposing Constitutional Amendments of one sort or another which would affect either the manner in which federal judges and/or Supreme Court judges are selected or limit the length of their terms. Those resolutions are as follows:

1. S.J. Res. 106—Provides for 8 year terms for Supreme and inferior court judges.

2. H.J. Res. 38/Provides for 10 year terms for Supreme Court Judges.

3. H.J. Res. 82—Provides for 8 year terms for Supreme and inferior court judges.

4. H.J. Res. 153—Provides for 6 year terms for Article III judges.

5. H.J. Res. 186——Provides for 10 year terms for Supreme and inferior court judges.

6. H.J. Res. 286—Provides for 10 year terms of Supreme and inferior court judges.

7. H.J. Res. 436-Allows Congress to provide for the manner of selection and terms of lower court federal judges.

(H.R. 10763)--(Provides for the expiration of present terms and 6 year election of judges thereafter pursuant to H.J. Res. 426.)

8. H.J. Res. 499_Provides for 10 year terms of Supreme and inferior court judges.

9. H.J. Res. 699—Provides for 10 year terms of Supreme and inferior court judges.

10. H.J. Res. 749—Provides for 7 year terms of Supreme and inferior court judges.

11. H.J. Res. 1059---Provides for 6 year elected term of lower court judges.

12. H.J. Res. 1077—Provides for 6 year terms of Supreme and inferior court judges.

13. H.J. Res. 1120—Provides for 10 year terms subject to 5 year approval by voters for Supreme and inferior court judges.

14. H.J. Res. 1121--Provides for roter approval after 12 years for district court judges.

15. H.J. Res. 1140—Provides for 10 year terms of Supreme and inferior court judges.

The above list is only meant to summarize the proposed Constitutional Amendments. Many other proposals provide for similar terms but have other differences.

In addition to these proposed Constitutional Amendments, there is at least one bill pending before the 92nd Congress relating to the manner of selection of Supreme and inferior court judges. H.R. 13474 creates a Commission which would make recommendations to the President for the filing of judicial vacancies. The President would be required, if he did not nominate in accordance with the Commission's recommendation, to transmit to the Senate with the nomination “a statement of his reasons for failing to nominate a person recommended by the Commission for such appointment."

Senate Joint Resolution 106 would provide for the following Constitutional Amendment:

"ARTICLE"§ 1. Notwithstanding the provisions of the second sentence of $1 of article III of the Constitution, each judge of the Supreme Court and each judge of inferior court established by Congress under $ 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 judgeship which he hoļds 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.

"82. The terms of office established by $ 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.”

Senate Joint Resolution 106 would provide a scheme for the appointment of "Article III” judges whereby the term of office would be limited to eight years after which time a judge could be renominated and reconfirmed for an additional term.

Although much has been written about federal judicial tenure, most articles relate to topics such as judicial disability, senility, retirement and removal of federal judges. Very little has been written about the desirability of reducing service of federal judges from life (“during good Behavior") to a period of years.

Several questions might be raised in connection with a proposal like S.J. Res. 106. Does, for example, the phrase “... shall hold office during good behavior for terms of eight years ...” contemplate that judges would continue to be removable by means of impeachment during their eight year terms? Or, has another basis tor impeachment (namely, bad behavior) been added to the list of treason, bribery or other high crimes and misdemeanors. The generally accepted view of the term "during good Behavior" as presently used in the Constitution, is that it is another way of saying that judges hold office "for life subject only to removal by impeachment.” Under the proposed amendment of S.J. Res. 106, judges would have 8 year terms rather than life tenure. And the question of whether or not "good behavior” means the same thing in this context could affect the basis for removal of judges, for "bad behavior" may well entail a great deal more than what is presently contemplated by "treason, bribery and other high crimes and misdemeanors."

The proposed amendment contemplates applicability to all Article III judges, except for those presently holding office. This would eventually require the confirmation of over 400 federal judges in every eight year period.

Regarding possible opposition to the amendment, it might be anticipated that federal judges, the organized bar and several minority groups, among others, will express deep concern over such a proposal.

Their opposition may relate to the purpose, advanced by present tenure of federal judges, which allows the federal judiciary to be politically independent and immune from Congressional and Executive pressure in making decisions. See generally, “The Independence of Federal Judges.” Hearings before the Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, 91st Cong., 2nd Sess., April 7 and 9, May 7 and 8, 1970. The proposed change might well result in direct Congressional and Executive influence in cases pending before judges concerned about their reappointment to office. Having judges who can exercise independent, unbiased, non-prejudicial judgment makes “equal justice under law” possible.

By having eight year terms, judges may, in effect, be forced to "campaign" for office by doing political favors for the President and Congress. Such a frequent reconfirmation process could result in a larger turnover of judges on the basis of party affiliation and patronage. New party control of Congress or the executive could mean the judges would all change. Replacement of large numbers of judges could be difficult and expensive to manage.

Frequent turnovers on the bench might not allow judges sufficient on-the-job experience to become efficient and adept at their duties and might make transition periods difficult from the view of administration of court dockets and case disposition. For example, how near the end of a judge's term could a lengthy trial be assigned to him with assurance that it would be completed ?

Respect for the judicial system might also be placed in severe jeopardy, if the basis for judicial action were to become the personal political ambition of the judge rather than the unbiased, deliberative and equal application of the law, exercised with judicial wisdom and restraint.

Maintenance of high standards of judicial conduct and judicial ability could become more difficult. Frequent reconfirmation of large numbers of judges or confirmation of new nominees would make evaluation extremely difficult. Constant turnover could inject popular momentary passions into the judiciary:

Advocates of such an amendment might argue that such a change would make federal judges more responsive to contemporary ideas and attitudes. Such a process could allow for more responsiveness to the electoral process by giving the elected representatives a periodic opportunity to review judicial performance. Advocates might also argue that the present sanction on judicial conduct, impeachment, has been ineffective and infrequently involved. The necessity for renomination and reconfirmation could provide an opportunity for reconsideration of such factors as judicial temperment, age and physical or mental disability.

The extent to which Congress has considered such proposals in the past is not clear and could not be adequately researched within the time constraints of your request. It can be said, however, that in recent years, proposals like this have not received significant Congressional attention.

Even though little has been written directly concerning a proposal for limited tenure of federal judges, such a change involves a fundamental shift in the division of power presently held by the three coordinate branches of government. The proposal of such a major change in the organization of the federal judiciary would of course be surrounded with great controversy and numerous arguments—both pro and con.

We have'attached copies of the following articles relating to judicial tenure, which may be of interest as background information :

(1) “Judicial Tenure in the American Constitution : English and American Precedents" by Martha Andes Ziskind, 1969 Sup. Ct. Rev. 135.

(2) "The Constitution and the Tenure of Federal Judges: Some Notes from History" by Philip B. Kurland, 36 U. Chi. L. Rev. 665 (1969). (AP-135)

(3) "Disciplining Federal Judges : Is Impeachment Hopeless ?" by Preble Stolz, 57 Cal. L. Rev. 659 (1969). (AP-148)

(4) "Impeachment of Civil Officers under the Federal Constitution" by Leon R. Yankwich, 26 Geo. L. J. 849 (1938). (AP-136).

(5) "Federal Judges—Appointment, Supervision, and Removal-Some Possibilities under the Constitution" by Burke Shartel, 38 Mich. L. Rev. 870 (1930). (AP-132)

(6) "Impeachment of Judges and 'Good Behavior' Tenure" by Raoul Berger, 79 Yale L. J. 1475 (1970).

(7) “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, 35 G. W. L. Rev. 455 (1967). (AP-137)

(8) "Judicial Discipline and Retirement—the California Plan" by Jack E. Frankel and “Judicial Selection and Tenure-the Missouri Plan” by Glenn R. Winters, companion articles beginning at 58 Illinois Bar Journal 510 (1970).

(9) "Highest State Court Judges: Selection and Removal" a chart prepared by the American Law Division, June 22, 1970.

ROBERT D. POLING,

Legislative Attorney.

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