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accountability on the other. I think it is very hard to draw parallels. No one is suggesting that the Federal judges be subject to either nationwide election for renewal of their terms, or, in the case of district judges, to statewide elections. That would be a parallel change, but no one is proposing it. I think the placing of the power in the hands of one chamber of the legislature in many ways heightens the politicization of the process because it becomes the subject of sharp division; it becomes the subject of considerable pressures brought to bear on legislators by interested constituents; whereas, in any general election, the issue is probably a fairly diffused one, and the expectation is there will not be any great controversy over renewal of the term. I do not think one can expect that result if you place the function in the hands of a debating body like the Senate-and I presume that it would not be advanced unless it were meant to be employed from time to time—and I think it is a mistake to pose the issue as that of a fixed tenure.
I would not be opposed to a fixed tenure of a generous term, either measured by a mandatory retirement age or a maximum length of service. The vice is not the imposition of an end to the term of service short of death or resignation; the vice is in submitting the extension of a short term, a relatively short term, to one chamber of a politically constituted body.
I think all would agree, if you look at desirable lengths of terms, that on the Supreme Court of the United States it requires a considerable period for a justice to come abreast of the work. That is the testimony of all members of the Court past and present; namely, that the work of the Supreme Court is so different in its nature that prior judicial experience is not a very significant advantage to them in learning to cope with the job. It takes a number of years, really, in order for a member of the Supreme Court to feel himself fairly comfortable in coping with these very basic issues. And, therefore, a term or 8 years, nonrenewable, would be much too short. I think a case could be made for a generously longer term, say 15 or 20 years, and certainly a case could be made for a mandatory retirement age at a generous age, whether it be 72 or 75. But that is a wholly different proposition from the necessity of coming before a political body to renew their relatively short term of service.
Senator Bayu. Well, thank you very much, Professor Freund. We really appreciate you taking the time to be with us. Once again you have performed a significant service to our committee.
Our next witness is Mr. Paul Mason Shuford who has been eloquently and appropriately introduced by our colleague from Virginia, Senator Byrd.
Mr. Shuford, we appreciate your taking the time to testify before the committee.
STATEMENT OF PAUL M. SHUFORD, RICHMOND, VA. Mr. SHUFORD. Mr. Chairman, thank you very much.
I appear before you simply as a practicing attorney, deeply concerned, as I know you are, with the proper administration of justice.
I have no novel suggestions to offer, and certainly I am not so fatuous as to believe that I can add to your knowledge or awareness
of the many problems which our country faces in this very critical and delicate area of concern. It is my hope that I may lend some support to the thrust of Senate Joint Resolution 106, a support based primarily on 24 years of the active practice of law and a continuing-and I like to think a sometimes constructive participation in the governmental and political affairs of my native State.
If I may, Senator, from time to time I may depart from my prepared testimony to try to answer a question or questions in areas of discussion brought up by you or the previous witness.
In my view, the establishment and maintenance of a proper and efficient system for the administration of justice is not dependent upon any one concept or class of persons. Certainly it is not something that should be left entirely to lawyers. Notwithstanding that profession's greater involvement in and more intimate knowledge of the many intricacies and subleties of the law. Lawyers have a special rule, obviously, but the overall responsibility is one that must be shared by everyone, particularly those in positions of political leadership and authority. This is especially true in connection with that particular aspect of the problem brought into focus by Senate Joint Resolution
This aspect to which I refer is perhaps best encompassed within the familiar phrase "balance of power," as that phrase is applied to the interaction of authority between the legislative, executive, and judicial branches of Government. Too often, I fear, our concerns with questions related to this "balance of power" are seen as being purely political in nature, a view that regrettably tends to highlight the presumed selfish and partisan elements involved in such concern to the derogation of the more noble elements implicit in expressions of concern for a better administration of justice. Yet the former is essentially and unavoidably intertwined with the latter.
Obviously, "balance" to which I refer does not imply an identity of power but rather a balance which, in the overall context, does most to serve the people. Only in a limited sense can it be said that citizen justice is ultimately dependent upon the courts. Partly from initial governmental concept and partly from development, we have come to accept a certain "ultimacy" in judicial decrees and in certain limited areas, that is, those pertaining to the protection of certain basic-and I do mean "basic"-personal rights such as have been alluded to by reference to the Miranda case, for example, I feel this is both proper and preferable to alternative approaches. My concern, however, is directed at the great and growing evidence that acceptance of a properly limited doctrine of judicial supremacy has been and is being expanded into a doctrine of absolute and unlimited judicial supremacy. To the extent that view controls our affairs, we are necessarily deprived of the free exercise of our "political" rights, rights which, though semantically and practically distinguishable from our "judicial" rights, that is, the personal rights that come up between man and man, are just as essential a part of our total package of "rights" as any category of rights that can be imagined.
Senator BAYH. May I interrupt?
You seem to distinguish here between personal rights and decisions of the courts involving other sorts of rights?
Mr. SHUFORD. I think definitely they are distinguishable, though not by any hard and fast rule. What I am referring to is litigation be
tween private parties, or sometimes between one party and the State that would give rise to such a case as the Miranda case which, of course, created quite a stir. But these are on a different plane, it seems to me, from some of the other cases, dealing with class actions broad constitutional questions; and I will allude to them later and answer any questions. What I am saying is: "justice” is not limited to judicially determined matters. Social justice, economic justice, political justice, all are, or should be, as fully, if not more generally, dependent upon legislative enactment and executive action than on judicial decrees. It is in the sum total of these rights that, in company with those "personal” rights which are more properly subject to individual judicial determination, comprise the full package of our rights and privileges as citizens. It is cause for grave concern, then, whenever any one branch of Government undertakes to arrogate to itself a supremacy of power which would diminish the power of the others to freely exercise their respective responsibilities to the electorate-power that should be limited only by the clear terms of the Constitution and the will of the people are expressed at the ballot box.
I will not belabor this philosophical approach further. Suffice it to say that my concern for the proper and efficient administration of justice necessarily involves a concern for matters political, as well as judicial, and, accordingly, that it embraces a concern for the "balance of power” questions posed by Senate Joint Resolution 106.
The more precise purpose of my statement is to express to you my conviction that a periodic reappointment and/or reconfirmation, however you want to term it, of judges by the executive and/or legislative authority-of course, in this resolution, it is reconfirmation by the Senate-does serve a very valid purpose in helping to preserve this essential "balance of power” without, in my opinion, reducing the essential freedom of the judiciary to dispense justice fearlessly and impartially. It is our right as citizens to be not totally dependent on judicial action. It is only one aspect of the justice we are entitled to. We are, for example, entitled to a great deal of concern by this very body in the field of rights and privileges. As long as judges obeyed the very hallowed practice and principle of judicial restraint, there are no practical reasons, as opposed to esoteric ones, of course, to consider the issue which is now before us. I think the time has come, however, when that is no longer true.
I could never countenance, and I would oppose with all the vigor and resources at my command, any proposal for the popular election of judges, even though I know many States follow such a practice. I do not want judges to be answerable to the popular, perhaps even the emotional or passionate, will of the moment. What I do want is to see that there shall be no person or class of persons in authority who are beyond the effective control of anyone or anything other than their own notions of what is best for the people of these United States. In regard to the subject of control, it has been stated here, of course, that the Congress has the power to do many things to exercise some degree of control over the judiciary. For the most part with the sole exception of reenactment of statutes to obviate court objections, I have grave reservation about the exercise of those powers; that is, the removal of jurisdiction, the control of the purse, that sort of thing. That to me is far greater interference with the exercise of independence by the judiciary and the stability of the judicial process than would be the proposal which I think we have here before you today.
Under no stretch of the imagination could the proposal before younor any statements in support thereof_be construed as any effort to interfere with the proper independence of the judiciary. Indeed, the amendment, if adopted, could never serve to diminish a proper independence—as opposed to an arrogant assumption of undelegated power, unless the Senate of the United States were to act in an irresponsible and irrational way. Senate Joint Resolution 106 would not serve to make any Federal judge dependent upon or subservient to the will or emotions of the people, of even the elected officials, of his district or circuit, but only to make him periodically answerable for the overall performance of his judicial duties to the entire Senate of the United States. Since those with ultimate legislative or executive authority, that is, those who are expected to exercise a certain amount of activism on behalf of the public to embrace these rights and privileges and to further them as I have indicated, are subject to the direct will of the people, I deem it a salutary thought that those in judicial authority-who are, in my opinion, not supposed to be activist doers but rather restrained protectors—should be subject to some counterbalancing authority or power in order to preclude an absolutely uncontrolled activism on their part.
If I may, for a moment: The question was raised several times as to what the thrust of the resolution was. I cannot speak for Senator Byrd. This statement is entirely my own, but the thoughts that occur to me, sir, are that primarily we are concerned (1) with shall we say the ethical fitness of a judge to serve; that is always there, but (2) probably we are more concerned with what I consider to be acts of the judiciary which are not judicial in nature, the making of law. I would allude to only two questions or two cases of some years ago that have now become rather widely accepted so they are not longer an issue, rather than the more immediate ones that are still, because of emotion, presently debated. First, I have always been disturbed philosophically over a problem that I cannot resolve. Our Constitution defines what the law of the land shall be, and nowhere does it say that a judicial decree is the supreme law of the land. Yet, we have become so used to accepting a court exposition as to what the Constitution holds as the supreme law of the land that, in effect, a decision, if it is to be what we say it is, must be nothing more than an elaboration or an explanation of the Constitution; thus, in a real sense, it as much the Constitution as the Constitution itself.
If that be true, then, we have only one way that properly is provided for us to correct that. If the Court makes a mistake constitue tionally, we can amend it. What I am suggesting to you is that the Supreme Court too often ignores this clear limitation. The 1954 school cases represent clearly an instance in which the Court said, in effect :
We are impatient; we do not believe we want to wait for the people to change the Constitution. Times have changed. So, we are going to nour find that the Constitution is not what it was then but it is what we say it is now.
Now, I have been practicing law too long not to know that this is not something new on our scene. I simply think that it has begun to get out of hand. I do not know how you resolve that. But my choice, my preference, would me if we do not like a decision of the Supreme
Court on a serious constitutional question, then, let us set the mandatory procedure in motion, cumbersome though it may be, because that is the very purpose of its cumbersomeness. Let the people decide if they do not like what the Court said. It should not be up to some court to say “We do not like the Constitution that way; so, we want to make it mean something else.” I prefer to put the answers back with the people rather than
the shifting body of any court. Senator Bayu. Before you go back to your statement on this point, if I might just interrupt a moment?
I just want to make sure I do not put an unreasonable interpretation on what you just said. You are referring to Brown v. The Board of Education, I suppose, and the others that followed them in the education era. Without specifically referring to this but in looking at the Court's responsibility more generally, does and should any sitting court, this Court now with nine men, meet the test that you prescribe to it of not legislating but just performing a judicial function in society? Should a court adhere to stare decisis from now to the end of time?
Once a decision has been made, is that the decision, the only decision that that court can reach?
Mr. SHUFORD. If your question is limited to constitutional matters, I think I could perhaps field it better: I believe in stare decisis. I do not think it is an immutable rule or principle. There are times properly-particularly those areas which embody common law conceptsin which stare decisis is properly looked at anew by the courts. I am much more concerned with this specific issue related to broad constitutional questions, because I do believe the framers said: “Yes, here is the Constitution, and it is the will of the people as stated, and if it is to be changed only the people shall change it.” And what I am concerned with is a shifting Constitution by the will of a limited number of people not answerable to anybody but with life tenure who can say “No, we are going to change it."
Now, I know Professor Freund takes issue with me on this. We have discussed it before.
Senator BAYH. You would put the due process and equal protection clauses in that area—that the courts should always follow decisions it made in another era?
Mr. SHUFORD. Not quite so much, sir, for the simple reason, that due process is by nature a growing concept; it is a vague concept, and I think it does allow room for growth and expansion. I am hung up, very frankly, and I have not resolved it fully in my own mind, as to whether a decision under the identical facts of a case, raising a due process question for example, is subject to reversal. I think most of the problems we have had, and most of the cases in which the Court has made landmark and, I think, basically, good decisions, even though there has been a loud public outcry about many of them, could have been reached solely on the facts, new facts, new times. These have changed, but due process has not changed. The concept, simply, is that the facts in today's society are so different that due process no longer demands this but something else; that, to me, is not a change in the Constitution.
Let me give one little example--and I cannot refer you even to the name of the case, Senator, which has disturbed me probably on two accounts about as much as any that I can recall. It was a case in which