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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 cynicism 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

a 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

United States becomes the lightning rod, and the Supreme Court of the United States is often blamed for the lightning. One hardly remembers what the State court decided in important and sensitive constitutional issues that have been decided by the Supreme Court of the United States.

Moreover, the election procedures that I have described was seen as a safeguard against the possibility of a tyrannical or disabled judge. Whatever the merits of that system as a modification of a purely elective judiciary, it has little resemblance in purpose or effect to the proposal before the committee. The present proposal would greatly increase the political pressures on Federal judges. It would put their continued tenure in the hands of a small body of legislators judging under inexplicit standards subjected to inappropriate pressures, and injected into the business of lawmaking at just the wrong point. I have spoken mainly of the Supreme Court because I daresay if we had no Supreme Court this proposal would not be advanced for the lower Federal judiciary.

But let me add that, with respect to the district court judges, the problem of reconfirmation would be complicated by the practice of senatorial courtesy; whether his continuance would be at the pleasure of a single Senator from his State, one can only conjecture.

However sparingly the power might be exercised, its very existence jeopardizes the principle of an independent judiciary upon which the rule of law rests. There is no overriding need that would justify this jeopardy. It is to be hoped that the members of the Senate would find the power proposed to be given to them as unwelcome as it is dangerous to our legal order.

Thank you, Mr. Chairman.

Senator Baru. Professor Freund, I appreciate, as I said earlier. your taking the time to let us have your expertise. You concluded on a note that is rather interesting, but a very practical note. I discussed with my friend from Virginia the way in which the Senate, in its responsibility given in this amendment, would try to provide restraint and accountability. The Senator from Virginia said-and I concur in his judgment--that we should not feel that we necessarily have to agree with specific philosophy or specific decisions of a given judge in order to confirm him in the first place, or reconfirm him in the second place. And I wonder how we, as Members of the Senate, if we were given this responsibility to deal with the problem--the most sensitive of which now is in the education area, as it has been since Broun v. Board of Education-how we could, indeed, resist the tremendous pressure that would be exerted on those to whom we must be accountable to look at specific decisions of a judge whom we were trying to hold accountable?

I guess that is what you mean when you said an "unwelcome power"?

Mr. FREUND. Yes; as in welcome as it would be dangerous. I think it should be distasteful to Members of the Senate to be saddled with this task-distasteful because they will be subjected to enormous political pressures. And there are no standards in which they can take refuge: there is nothing to confine their discretion. We have a sample of the problem, but only in microcosm, in connection with a recess appointment where there is a confirmation hearing later. It is true that there have been occasional recess appointments, but it is also true that that


practice is a very dubious one and a very dangerous one, in my judgment, with respect to the Supreme Court at least.

I recall that in a time of considerable political tension in the country, in the period of President Eisenhower's first term, Justice Brennan—as he then was—received a recess appointment, and when he was nominated and hearings were held, he was subjected to very intense questioning about his views on communism and various ramifications of that issue by a Senator from Wisconsin. It was not one of the Senate's most glorious hours.

How to limit that kind of thing is uncertain.

Senator Bayh. If we talk about a reconfirmation hearing, as I recall sitting

Mr. FREUND. There were cases pending in court, if I may add, on these very issues, and to attempt to separate out questions about views on particular pending cases or particular recent decisions from views of a more general or political nature such as might be asked of an original nominee who had not been on the court-that effort to separate, of course, breaks down, and it is very difficult to talk about one's general philosophy without implicating one's views on actual cases pending before a court on which one is sitting.

Senator Bayh. When we are talking about senatorial response to public hue and cry we are not talking about just a response to base political power. For I think there are areas in which men of good faith have very decided differences of opinion. One could feel very strongly in opposition to a series of decisions made by the Supreme Court and thus would be, if you will, dutybound from a philosophical view point, not just from political pressure, to op ose the nominee. How can a judge defend himself in a reconfirmation hearing from questions directed at the details of specific cases that he had already decided?

Is it fair to make a distinction between the confirmation of a judge who has not sat on cases and hear him say, as several have, I think wisely, "Well, Senator, I do not think I should answer that question; it deals with the specifics of a case that may come before me?”—is it fair to make a distinction between the position that judge has when he is about to be confirmed and the position he finds himself in when he comes around, say 8 years later after having sat on and decided a number of cases which are then fair game?

Mr. FREUND. I think there is a considerable difference.

The experience of the judge who has served is likely to be that of having a specific record scrutinized. The position of a nominee who has not served on that court is likely to be that he is examined in a much more un focused, diffuse way. Indeed, as the Senator knows, it was not until Felix Frankfurter was nominated in 1939 that the practice began of inviting the nominee to appear before the committee. Until 1939, with a minor exception in the case of Harlan Stone, who was Attorney General, it was the practice not to have the nominee appear at all before the committee. Of course, statements were submitted on his behalf, questions were answered by spokesmen on his behalf, but the delicacy of the situation then, in that posture, was recognized by not asking the nominee to appear.

Well, we have passed that hurdle, and I am not now arguing one way or the other as to that. But it seems to me a giant step from that to the examination of the judge's record, or even as to his character


istics or attributes on or off the bench in what could be a very tempting political atmosphere. The answer may be that we must have confidence in the Members of the Senate, but, as Thomas Jefferson said in the passage which Senator Byrd quoted, it should not be a question of confidence. The Constitution, itself, should fix the guarantees. We should not be at the hazard of placing confidence in the self-restraint of the Senate, given the political pressures that are bound to exist.

Now, it may be said on the other hand that we do impose confidence in the judiciary under our system. And my answer to that is that the finality of judicial decisions is much less than is superficially presumed. I will not go over my testimony, but I tried to point out the various areas and ways in which even decisions of the Supreme Court can be overcome if there is a very considered, focused, and sufficiently strong movement to do so.

Senator BAYH. In other words, as I recall your testimony, it is your judgment in the particular area such as the commerce clause—as a good example of the case-where the Congress, by new legislation, has, in essence, dealt with the problems that were raised by the Supreme Court without even going the constitutional amendment route?

Mr. FREUND. That is entirely right, and I would add that I think the Congress has a great deal of power which lies unexercised in that area, as well as in the Bill of Rights area.

We need not go into the substantive questions, for example, questions of State taxation of interstate commerce, but there have been many studies made in Congress and no comprehensive legislation. I think such legislation would be welcomed by the Supreme Court itself. Even in the Bill of Rights area, in the much controverted Miranda opinion, in at least two passages which have been too little noticed, the majority opinion states that if there are equally effective means other than that which we have indicated, to achieve the same end, namely, to help assure that confessions would be vountary, you are at liberty to adopt such equally effective means. I would like to see much more legislative experimentation in the area of safeguards in the criminal process, and the Supreme Court issued an open invitation to come up with something constructive which may not be the same as the guidelines laid out in the Supreme Court opinion.

Senator BAYH. I noticed that the Supreme Court said "or under any other system that may be devised," so it is almost an invitation to the Congress or the States.

Mr. FREUND. Yes.

Senator BAYH. One last thought, Professor Freund.

You mentioned uncontested election of the State judiciary, and Senator Bvrd stressed the fact that all but three States had requirements for limited tenure. Could you give us a brief summary of your judgment as to which direction the States appear to be going?

Is it toward more accountability or less accountability?

Mr. FREUND. Well, I think they are moving toward a depoliticization of the process. The States I had in mind were California and Missouri, and there may be others, which adopted the practice of the uncontested renewal election, and this was thought to be considerable advance over what had existed before: namely, a political election. It was a compromise between security of tenure on the one hand and

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