decision which was pronounced in 1964. It is submitted that we have before us the very problem which disturbed Mr. Jefferson.

In Jefferson's leter to Abigail Adams in 1804, he expressed his fears of allowing the judiciary to pass upon the validity of enactments of other branches of government. He feared that to allow the courts to decide constitutional questions, not only for themselves but for the other branches of government, contained the seeds of judicial despotism. Under his interpretation of the Constitution.

"That instrument meant that its co-ordinate branches should be checks on each other."

Jefferson's fear of judicial despotism or judicial usurpation is no less to be feared today. It is equally self-evident that the courts, be they the Supreme Court or the lower Federal Courts, are by their example great teachers in interpreting and handing down constitutional law. If the judge decides that his views are to be written into law, how is it then that we live under the rule of law--not of men? Can we continue to say that the courts exercise only judgment, not will, as Hamilton claimed? How then can the rule of law be explained?

It is submitted that the various excursions of the Supreme Court and the Federal judiciary into various areas of policy making and administrative directives have damaged the traditional concepts of the function of the courts and the rule of law in the eyes of American citizens.

In the area of criminal law, for example, the past decade has witnessed the transformation of the Federal Constitution into a code of rules, practices, and detailed procedures as intricate as many congressional enactments. Any yet, we, and the people, are told that the court is merely interpreting the Federal Constitution.

The list of recent examples of judicial policy making could grow much longer. But I trust that these few illustrations suffice to characterize the nub of the problem.

But in addition, there are other compelling reasons for periodic review of the tenure of the Federal judiciary. Not only should the acts of judges be reviewed to determine whether they practice proper judicial restraint in dealing with the powers and authority of the coordinate branches of government and the rights and powers of the States and the people. I refer to questions of health, demeanor on the bench, age, and attitude toward responsibility and willingness to perform the work assigned with diligence and dispatch. I realize that there exists the power of impeachment for misbehavior, but in my opinion only the grossest kind of conduct would ever be dealt with in an impeachment proceeding. The impeaching process is fraught with very grave doubts and uncertainties, whereas a periodic review for judicial fitness would, in my judgment, give greater assurance of proper judicial conduct.

As a further justification for the tenure provision in the Federal Constitution, Mr. Hamilton argued that the provision—

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. . . is conformable to the most approved state constitutions, and among the rest, to that of this State." (N.Y.)

If this be conceded to be a valid justification for tenure during good behavior at that time in the history of our country, then it may logically be said that at this time the tenure provision for Federal Judges should be altered to conform to the majority of the state constitutions putting a time limit on tenure. I am advised that today only three States in the Union, Massachusetts, Rhode Island and New Hampshire, provide life tenure for their judges. It is apparent, therefore, that the overwhelming majority of States consider that life tenure during good behavior is unwise and that there should be a time limitation on a judgeship.

I hold to the view that a person who possesses the character, training, experience and firmness of conviction, requisite for the proper administration of the judicial process, will not be concerned that he may, in his judicial pronouncements, offend the political sensitiveness of members of the Senate. Such a man would rather surrender his judicial position than to give expression of views that he could not conscientiously embrace. I am confident that the Senate would not withhold confirmation of a judge for an additional term because he differed with the political or philosophical views of a majority of the Senate.

In considering whether it be appropriate to add yet another amendment to the Constitution, I believe it must be admitted by all minds that any change ought to offer at least reasonable promise of a better future than the present holds. Any change incorporated into the Constitution should embody fundamental law. This amendment, I believe, offers reasonable grounds to believe that it is a mode of

attaining a better balanced Republic. It will serve to put limits on the exercise of the judicial power.

Once again, we are benefited by the thoughts of Thomas Jefferson, who said: "I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."

In essence, I believe that this amendment goes toward the preservation of the best features of our constitutional democracy and our heritage of limited and rsponsible government. Macaulay, the British statesman, rightly observed: "Reform, that you may preserve."

APPENDIX

Judicial Activism. Examples of support for judicial policy-making are to be found in Eugene V. Rostow, Usurper or Faithful Watchdog?—The Supreme Court in the American Constitutional System, Notre Dame Lawyer 573 (1958). See also, Robert A. Dahl, Decisionmaking in a Democracy; The Supreme Court as a National Policy-Maker, 6 Journal of Public Law 279 (1957). Critique. One of the most relevant critiques of the "finer vision" said to be exercised by the courts is contained in Charles S. Hyneman, The Supreme Court on Trial, Atherton Press (N.Y.) 1963; see, Chapter 20, Frontiers of Judicial Power, p. 261–275.

Recent Examples of Judicial Policy-making. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed. 2d 600 (1969). This case stands for the proposition that one year waiting requirement of New York for welfare recipients was unconstitutional in that it controverted the "fundamental" right to travel. See also, a discussion of the "new equal protection cases" in Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966). State Constitutional Revisions. The People of the Commonwealth of Virginia ratified a new Constitution to replace the former one of 1902. The basic principles set forth in the Introduction of the Commission on Constitutional Revision are considered relevant and applicable to the present proposed Amendment. Acknowledgement is made to the editorial staff of the Commission in the research which set forth the Jefferson and Macauley citations. See, Report of the Commission on Constitutional Revision, The Constitution of Virginia, p. 8-12.

Writings of Thomas Jefferson, ed. Paul L. Ford (New York, 1892), X, 43. Hansard's Parliamentary Debates, 3rd ser., II (London, 1831), p. 1203. The statement was made on March 2, 1831, in the debate on the First Reform Bill.

Senator BYRD. Mr. Kuykendall endorses this proposal.

We also have present, and I will not presume upon the chairman's prerogative to determine when he will testify, but I do want to say that present today is an outstanding attorney from the State of Virginia, Mr. Paul Mason Shuford. And Mr. Shuford is the president of the bar association of the city of Richmond, an association composed of approximately 900 lawyer and judicial members, membership in which is open to all lawyers maintaining an office in the metropolitan area. It has an outstanding record in the field of judicial support and reform and has long been recognized for the leadership it provides in matters of social and civic concern, such as legal aid, lawyer referral, Richmond community action program, and others.

Mr. Shuford has been a practicing attorney for over 24 years and is a partner in the firm of Wallerstein, Goode, Dobbins, & Shuford. He has been admitted to practice in all the State and Federal courts in his area, and has been a member of the bar of the Supreme Court of

the United States since 1952. He is a member of and has served on numerous committees of the American Bar Association, the Virginia State Bar, the Virginia Bar Association, and the American Judicature Society. He has taught classes at Washington and Lee University Law School and at the Richmond College of Law, and under the nom de plume of "Cato" was the author of a regular weekly editorial column dealing with legal matters, which was the recipient of a "Silver Gavel Award" for its outstanding contribution to the public understanding of law.

Mr. Shuford was graduated from Washington and Lee University and its law school, where he was a member of Phi Beta Kappa and the Order of the Coif. He served in the Army Air Corps in World War II and received the Distinguished Flying Cross twice, the Air Medal three times and the Purple Heart.

Mr. Shuford is one of the finest citizens of our State and one of` the finest persons that I have known, and I am very pleased that he is able to be at this committee meeting today.

I thank the chairman for his patience and his courtesies.

Senator BAYH. Well, I appreciate your testimony, Senator Byrd, and I am looking forward to hearing Mr. Shuford.

Our next witness, Professor Freund, has a previously planned appointment, so I am going to let him come and testify, and then have Mr. Shuford come, if I may.

Senator BYRD. Thank you; yes.

Senator BAYH. If I might just ask you a couple of questions-
Senator BYRD. Sure.

Senator BAYH [continuing]. So I will have a little better definition of what your concern is. Your testimony, and I think maybe the thrust behind this proposal, brings to our attention the possible conflict between two basic theories of the judicial branch: one being accountability and the other being independence?

Senator BYRD. Yes.

Senator BAYH. You seem to feel that your proposal provides one without lessening the other. I wonder, however, if it is fair to say that we may be talking about something even a bit more basic than accountability vis-a-vis independence of the judiciary?

Do you prescribe to the general philosophy that we should have three independent branches of government?

Senator BYRD. Most certainly, yes. That is one reason I think this amendment is necessary.

Senator BAYH. In other words, you are not concerned that requiring judges to come back to the Senate would at least give the legislative branch a sort of continuing audit over the judicial branch?

Senator BYRD. Well, of course, a person cannot get on the court at all without the approval of the legislative branch. That is basic to our system.

Senator BAYH. Of course, that it a little bit different than coming back every 8 years; is it not?

Senator BYRD. Coming back every 8 years is a means of giving some accountability to some group

Senator BAYH. I understand that. I am just trying to see if there are other things that perhaps we should consider.

Senator BYRD. Yes. I would not foreclose anything else. But this is the

Senator BAYH. Look at William Rehnquist, for example the most recent nominee who went there at about age 45. Hopefully, he will remain in good health and serve there 30 or 40 years. As much as I opposed his confirmation, I hope that my concern about his views. prove to be unfounded, and I hope that he serves there for a long period of time with good health. I hope he does. But suppose that is not so, suppose he makes decisions with which I deeply and fundamentally disagree. Under the existing system, he is a good deal more independent from a Birch Bayh or a Harry Byrd or whoever it might be, than he would be if he had to come back here every 8 years; is he not?

Senator BYRD. Yes, I would say so. Most certainly, and that is exactly why I think that this amendment or this proposal should be adopted or something similar to it, because the Federal judge is today, speaking of the courts and the Supreme Court and the Circuit Courts and the District Courts, they are accountable to no one. They have a lifetime appointment. They can take virtually any action they desire, and there is no one to whom they must account for their actions. And I just doubt, in this day of more and more heavy centralized power in the Federal Government including the Federal judiciary, whether the people are not running a very grave risk as the years go by to have any official of government in a position of lifetime appointment without accountability. I want to say and emphasize that I agree it is very difficult to strike a balance between independence and accountability. This proposal seeks to do that. But I want to say frankly that I think it is very difficult to strike that very fine balance.

Senator BAYH. Let me ask you to expand your thoughts, again, relative to this business of accountability.

One of the major purposes of the judiciary, whether State or Federal, is to provide justice, is it not? And I wonder if it might not be an element of justice, of due process, for an individual to be protected from the accountability of the court to a majority of the U.S. Senate? Senator BYRD. Well, he is not protected in his original appointment. Now, why should he be protected throughout his entire lifetime from any accountability?

I think there should be accountability, and I think the place to have the accountability is through the elected representatives of the 50 States in the U.S. Senate.

Senator BAYH. Of course. But having sat on several confirmation hearings and listened to the nominees respond, they are very carefuland I think, within their province-very careful not to respond to questions or give their opinion relative to issues on which they might have to vote as members of the court. They are not held accountable or forced to give their views on specific issues on which they might reasonably be required to vote if confirmed.

Senator BYRD. They are not held accountable for anything they do

now.

Senator BAYH. Well, quite the contrary. I think, by your own testimony, they can be impeached if their conduct becomes contrary to the standard established in the Constitution. And I wonder if it is fair to

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say that there is no way we can change judicial decisions without going through the five steps that you mentioned and enumerated in your testimony?

This is one thing that really concerns me quite a bit. I do not suppose you would disagree with me that the normal procedure for amending the Constitution, the two-thirds of both houses of the Congress and three-fourths of the State legislatures is a reasonably stable way of amending the basic law of the land?

Senator BYRD. Yes, I approve of that way of amending the basic law of the land.

Senator BAYH. If you look at some of the issues that are the most volatile where you have the narrow 4 to 5 margin, and instead of going to the people for constitutional amendment, in essence, you change one judge by failing to reaffirm him by the vote of one Senator, and that really sort of lessens the safeguards for amending the Constitution; does it not?

Senator BYRD. Well, I think that is—I think the Senator is taking a very extreme case. I think that

Senator BAYH. Well, now

Senator BYRD. I have found, in the Virginia Legislature where I served for 18 years, in the Virginia Senate, we dealt with this question almost every legislative session, and I do not find-I did not find-the men there to use a political view in regard to reconfirmation. I do not think the vast majority of the Members of the U.S. Senate would take such a view as that.

Senator BAYH. If you define "political" in the narrow partisan sense, I would concur. But if we define "political" as more in a theoretical sense of a study of the issues of the times you would reach a different result. Let us take some of the most volatile issues that you and I have wrestled with and on which we may have very decidedly different opinions take the issue of Miranda, or let us take the issue of perhaps even busing. This has not been defined enough that I would know where you and I might draw the line. Let us take some of these issues on which we have differences of opinion within the party, would we not as individuals, you as one Senator and me as another, look at the position of the given judge that was coming before us for reconfirmation and examine his position on these very volatile social issues of the time?

Indeed, if we are trying to achieve accountability, would it not be our responsibility to do that very thing?

Senator BYRD. I do not think

I do not concede it to be in the area of requiring that a judge hold precisely the views of any Senatoror anywhere near the views of a particular Senator who must vote on his confirmation. I voted for individuals that I do not have any rapport at all with on their own philosophy, but I do not think I have a right to vote against a public appointee merely for that reason. I think it is only when, in those cases, a judge is clearly going beyond the bounds he should go that there would be justification in voting against his reconfirmation.

Senator BAYH. It just seems to me that if the purpose and perhaps. I have not interpreted correctly the intent of my friend from Virginia,