but if the purpose of the amendment is to make judges accountable to what the people want, then how can we ignore

Senator BYRD. Not so much what the people want. That is not the thought that I had in mind. It is to give them, Federal judges, a sense of restraint-a sense of restraint.

Senator BAYH. From what, may I ask?

Senator BYRD. Judicial restraint, such as was exercised by Holmes and Brandeis and Stone and Frankfurter.

Frankfurter, one of my favorite Justices of all time, wrote eloquently on the subject of the need for judicial restraint. And I think this, the mere fact that a judge needs to come before the Senate at specified periods would tend to give him greater restraint, judicial restraint referred to by Justice Frankfurter.

Another thing is, over a period of time a judge will pass on many questions, many questions. It is very unlikely there would be just one question that would dominate the time that he came before the Senate for confirmation. I think the Members of the Senate would fairly judge his total record. I must say I am colored a little bit in this thinking by the experience I had in the Virginia Legislature. But if it works for 47 States, if a fixed tenure works for 47 States, why do we assume that it will not work for the Federal Government?

Senator BAYH. Of course, we have seen in recent years a great movement away from the short term, fixed tenure.

Senator BYRD. The fact is that there is a fixed tenure, and I think the chairman will agree with this, that there is a fixed tenure in one form or another in every State in the United States, with the exception of three.

Senator BAYH. But, as I am sure the Senator from Virginia will also recognize, there has been a great movement over the last few years from short, regularly prescribed terms to more and more longer terms and letting the judges run for reelection without even having opponents where the answer is "Yes" or "No," which almost always

Senator BYRD. My proposal is far less restrictive than that.

They do not even run. The name is automatically submitted. There is no competition for it.

Senator BAYH. I still do not have it clear in my own mind what we are restraining these judges from, unless we are trying to hold them accountable to public opinion or to establish the kind of judicial policy that the public wants. What are they to be held accountable for? I just cannot understand that.

Senator BYRD. Well, I think what I would suggest is that as it is now there is no accountability. Under my proposal there would be, by coming before the Senate for reconfirmation every 8 years. That would tend to bring back to the court the judicial restraints spoken of so frequently by Justice Frankfurter and Mr. Justice Hughes and Mr. Justice Stone and Mr. Justice Brandeis.

Senator BAYI. Of course, some of these great judges also talked about the tyranny of a majority, the transient majority, and the need for stability in the courts, and the need for the courts to be above the temporary emotions of the public.

But, please, what are we talking about, as far as restraint, judicial restraint?

Could you give me one example of what we are trying to restrain? If we are talking about competence, someone who is incompetent, mentally ill, I can understand that. But the business of restraining a judge, what are we restraining him from?

Senator BYRD. The purpose, Senator Bayh, is to have some means, some means of having this public official-and that is all he is, a public official with a very important position, but he is a public official-accountable as everyone in a democracy should be. I do not say that I am right, but in my judgment everyone in a democracy should be accountable to someone. You and I are accountable to the people of our State every 6 years; the Members of the House of Representatives are accountable every 2 years; the President is accountable every 4 years. Now, why is it not logical that the Supreme Court justices, the district judges and the circuit judges be accountable to somebody at stated periods?

Senator BAYH. I respectfully suggest that we are still not getting to the issue. If we accept your premise that a Federal judge should be accountable, I want to know, "Accountable for what?" What judgment do I make when I, as a Senator, look at his confirmation or reconfirmation?

Senator BYRD. Judgment as to whether he has adhered to the principles of our constitutional democracy.

Senator BAYH. And to do that I have to look at his individual votes. Senator BYRD. Well, you could look at his overall record.

Senator BAYH. I am only human, and to me the overall record is a component of individual votes, some of which are very emotional as far as the public is concerned.

If we are talking about accountability, ultimate accountability, of a Supreme Court Justice, I suppose his accountability is not really to us in the Senate, as those confirming, but is accountable to the people of the country.

Senator BYRD. Well, a Supreme Court Justice has no accountability to the people whatsoever.

Senator BAYH. But that is what we are trying to give him under your amendment?

Senator BYRD. I am trying to say that it does not appear sound to me today, with more and more power centralized in Washington, with more and more power being assumed by the individual Federal judges, it does not seem logical to me that they should continue under a system of complete lack of accountability to anyone for their decisions and their actions.

Senator BAYH. Well, I can see you feel very strongly about that. Senator BYRD. And I feel equally strong, if I may say so, about the independence of the judges, but I think we have got to strike a balance. Senator BAYH. Try one more time to show me an example of how we could make judges accountable and the need to make a judge accountable.

To me, as a Senator, I would have to make him accountable not to me personally but to whether I feel he is responsibly performing his duties, duties he has to my constituents or the Nation as a whole, and to do that I have to look at his votes on individual issues.

Now, if I do that, and the judge who is casting those votes knows that I do that, how does that fail to lessen his independence?

Because, if I am going to make him accountable, if we are giving him accountability, we are making him accountable, and if we are restraining him then we have to make him accountable to something, to some criteria, and restrain him from some type of act.

That is what I cannot understand, how you can carry on one responsibility without lessening the other.

Senator BYRD. Well, as I have mentioned several times, I agree that it is very difficult to strike a fine balance between independence and accountability. I think, at the present time, it goes too much to the side of independence, and I would like to see it brought back to the center a little bit more and have some accountability.

Senator BAYH. Well, thank you. I appreciate the opportunity to discuss this with you. I hope we can do it some more.

Senator BYRD. Well, I thank the able Senator from Indiana, and I appreciate your courtesy in permitting me to take so much time this morning.

Senator BATH. That is quite all right. The Senator from Virginia is a worthy and tenacious advocate of the points in which he believes. The next witness this morning will be Professor Paul Freund of Harvard Law School, Carl M. Loeb, university professor, and I ask unanimous consent to put excerpts of his biography into the recordand I say "excerpts," because Professor Freund has been an amicus curiae to this committee on a number of occasions and has been very helpful to us, and I have had a chance to study his biography in depth and to know him personally, and his entire biography would be very voluminous.

[The excerpts referred to follow:]

BIOGRAPHICAL INFORMATION-PAUL A. FREUND

Professor Freund is Carl M. Loeb University Professor at Harvard Law School. He was a law clerk to Mr. Justice Brandeis and served in the Solicitor General's Office before teaching at Harvard. Professor Freund is the author of a number of scholarly articles and books, including The Supreme Court of the United States (1961) and On Law and Justice (1968). He is also editor-in-chief of the History of the Supreme Court and a co-editor of Cases on Constitutional Law.

Senator BAYH. Professor Freund, we appreciate your taking the time to come and be with us this morning.

STATEMENT OF PAUL A. FREUND, CARL M. LOEB UNIVERSITY PROFESSOR, HARVARD LAW SCHOOL

Mr. FREUND. Thank you, Mr. Chairman. I appreciate the opportunity to express my views on the proposed amendment, and I would like to read a short statement, and then submit to questions. Perhaps I am a biased witness, because I serve under this system of tenure myself, like that of Federal judges during good behavior, except that we have a mandatory retirement age. The purpose behind each system is quite similar: namely, to promote maximum independence of mind, and there are safeguards in both systems. As far as academic tenure is concerned, it is, as I say, limited by age and also subject to termination for grave misconduct or neglect of duty.

With respect to the judiciary, I will have more to say in detail about the methods by which the judiciary may be held responsible.

I am opposed to a constitutional amendment that would undermine the independence of the judiciary. The framers of our Constitution repudiated a number of elements of the British system-the monarchy, a unitary state, an unwritten constitution. But they took care to establish for the Republic a Federal judiciary protected by life tenure, or tenure more precisely during good behavior, an institution designed to secure the rule of law and the liberties of the citizens against the political pressures and passions of the day.

The British Act of Settlement of 1701 established that the judges would serve during good behavior, and not at the pleasure of the Crown.

For almost 300 years that institution has stood firm and admired. amid all the shifting tides of British politics, and for almost 200 years it has stood firm as a basic principle of the American system. Not only are our Federal judges protected against Executive interference, the framers carefully circumscribed the risk of legislative interference, also in the light of history, by making the impeachment of a judge a solemn, quasi-judicial procedure.

Even under conditions of very real provocation, Americans have perceived the dangers of weakening the principle and practice of judicial independence. The fate of President Roosevelt's court reorganization plan in 1937 is too recent to require recounting. Earlier, the Progressive Party's appeal for the popular recall of judges and of judicial decisions was likewise rejected, though at both periods the Court was giving short shrift to measures of social and economic legislation that were prized by popular sentiment and that, in fact, ultimately prevailed in the courts as well.

It would be fatuous to deny that the Supreme Court from time to time has rendered decisions that have not stood the test of time, or of sober second thought. But we have to weigh the alternative means of coping with this problem and assess risk against risk. In nonconstitutional cases involving Federal law the Congress can always overcome a decision of the Court by ordinary legislation. In the constitutional sector itself, there are important areas where Congress can similarly overcome an unacceptable decision: Whether particular State laws unduly burden interstate commerce, for example, is a question that Congress can resolve as the final arbiter. And even in the area of the Bill of Rights, Congress can often qualify a decision of the Court by providing a different, if equally effective, method of securing a basic right. In addition, the Court itself is open to persuasion for the reconsideration of doctrine. This has always been true, and the Court has frequently yielded, as Justice Brandeis put it, to the lessons of experience and the force of better reasoning. Finally, of course, highly egregious decisions, like Dred Scott or the Income Tax cases, can be overcome by constitutional amendment.

All of these methods of review and change have in common the quality of full deliberation focused on specific issues. They are processes that inject flexibility into our legal system without eroding the confidence of the people in its essential rationality. Contrast the implications of the proposal for reconfirmation after 8 years. Here the focus is on an individual judge who is being assessed without any standards or guidelines by one Chamber of the Congress. Whether he is being judged on the record of his decisions as a whole or on one issue, or on

his personal attributes on or off the bench, is left at large. The public, naturally enough, will see the process as a political one in the grossest sense, as an opportunity for partisan chastisement, coercion, and even the creation of vacancies for new appointments. Even if a particular Senate shows admirable self-restraint, the Constitution should not be weakened by placing the independence of the judiciary at the hazard of the self-restraint of legislators who have the power to destroy that independence.

Indeed, the very existence of the power would undercut that independence. It is not necessary to suppose that judges would deliberately violate their convictions and vote in a way thought to be more pleasing to the legislature. A strong-minded judge might, on the contrary, take an unpopular position in order to demonstrate his courage. Either way, the injection of the factor of senatorial favor would deflect the processes of justice. Aggravated instances would be those cases in litigation-and some are now pending, you know--where the prerogatives of the Senate itself are involved.

Even the internal procedures of the court could be affected. A member due to come up shortly for reconfirmation might not be assigned the writing of opinions in sensitive cases. To spare the court and the country the spectacle of a judge being interrogated on a sensitive judicial decision, the decision itself might be put off until there was no reconfirmation proceeding impending, or so it might seem to the public. Always the motivations of the judges would be suspect, and cynieism would be fostered.

I said earlier that it was unclear whether the proposal was aimed at an appraisal of a judge's views, or at an examination of his attributes on or off the bench. If the former, there are, as I have pointed out, many ways of bringing about change in legal doctrine within the procedures afforded by our system. If there is a strong sentiment that there should be a greater rate of changes in the composition of the court, a constitutional amendment setting a mandatory retirement age or a maximum length of service, say 20 years, would be a much more defensible measure. If the present proposal is directed more specifically at the competence or integrity of a judge, and if the impeachment procedure is thought inadequate, there is open the possibility of creating a tribunal to hear charges against a judge, such as has been established by constitional amendment in several States. There is all the difference in the world between a solemn hearing of charges on sworn evidence and a diffuse, uncontrolled periodic debate in a legislative chamber over whether a judge shall be permitted to continue in office. To adopt the latter course would be to turn back the clock of Anglo-American constitutional traditions 300 years.

I am aware that in some States where the judges are appointed for a fixed term they must go before the electorate, in an uncontested election, for their continuance in office. But the situations are not parallel. Those procedures arose against a background of an elective judiciary, and were actually a means of affording greater security of tenure and less political involvement than had prevailed before. Moreover, State courts decide mainly common law issues. When on occasion they decide issues affecting groups who may be unpopular or despised, those cases are, as a matter of course, destined for the Supreme Court of the United States. It is there that the lightning strikes. The Supreme Court of the