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the Supreme Court ruled as to a restrictive covenant in deeds. It took a look at the requirement of judicial restraint and concluded that other constitutional decisions dictated that they could not say as a matter of constitutional authority or law---since they could not interfere with the matters dealing with land within a State, on a Federal level—they could not hold that restrictive covenants are unconstitutional. But the Court did not like them, so, what they ruled-contrary to anything that had ever been held before, although not overruling any decision I know of—was to say

All right, you can have your restrictive covenants in a deed and it is perfectly valid, but you cannot enforce it because to go to court would involve State action.

Now this is an idea that shakes me to my very foundation: that there can be any right which is not recognizable in the court of law one way or the other. It said to me, in effect, that the man with the biggest stick, if he can drive the other guy out, can then enforce his covenant, but he cannot go after a judicial determination on it. Now, this to me is the kind of judicial action to which I object, and it is totally foreign to the judicial function, and the Court should have said, “There is a way out of this. You can get rid of these things if you want, but we cannot do it on this basis." To say that State action, contrary to anybody's thought, involves Court action just opened a Pandora's Box. Fortunately they have not proceeded to follow this in other cases, but it was totally incongruous as a concept to me.

But to go back to your initial question, I think there is a difference in my philosophy, at least, in regard to basic constitutional rules when the Court has, by some later insight or because of new personnel said

No, we are sorry. The Constitution for a while meant that, and we said it meant that, but now we are convinced that it means something else on essentially the same facts.

I think most of your due-process cases, that sort of thing—equal protection can be handled, and it would not, in my opinion, encroach on this principle.

Senator BAYH. Of course, in some of those cases which have been interpreted by some who have been concerned about them as legislation, the Court has used equal protection and due process clauses as its bases for the movement in the new area.

Mr. SHUFORD. I say this area is a much grayer area. I think they can be handled without encroaching on the constitutional issue I raise. I still prefer to have those matters in that instance resolved statutorily. In all cases I much prefer to let the people state their wishes, and, then, if the Court finds that the people have spoken irrationally, irresponsibly, way beyond the confines of the Constitution, and that, in so doing, they have deprived some segment of our population of basic rights, the Court can then strike that down, that enactment, and I would not have it any other way.

I want the Court to be kept where it can strike down legislative enactment as being violative of due process or any other constitutional guarantee. As I say,

I am concerned that nobody should be without some control. A system similar to that proposed by Senate Joint Resolution 106 has existed in Virgina almost from the beginning of our history. It has worked well. Obviously, because it works well in Virginia is no guarantee it would work well nationally, but I think it is at least a valid precedent.

Senator BAYH. Also I hasten to add there is no guarantee that it would not.

Mr. SHUFORD. No; as I say, largely because of the reappointive power of our general assembly, our judges have exhibited an appropriate and healthy respect for the exercise of the legislative and executive functions. At the same time, our judges, in my considered judgment, have never felt intimidated nor evidenced any reluctance to decide any case according to their respective views of the law. They have simply eschewed, to a far greater extent than many members of the Federal judiciary, attempts to "make” law. They have given due respect to the right of the people, through their elected representatives, to choose what is best, unless such choice was plainly unconstitutional. In return, I have never known of a case in Virginia in which one of our judges has been challenged or even criticized—that is, by the body which has the reconfirmation or reappointive power—legislatively because of the content or result of a decision. The only significant legislative criticism of judges has been due to well supported charges of a lack of judicial temperament and rudeness from the bench. There have been no instances of failure to reappoint, despite some strenuous challenges.

Senator Bayh. Now, you just cannot say that about Members of the United States Senate vis-a-vis Supreme Court judges of the United States; can you?

Mr. SHUFORD. I would not say there have been no instances in which judges were not elected. I said "reelected." I make a very clear distinction here, Senator, in that I think that the Senate has a right, an absolute right, if not a duty to interrogate thoroughly prospective appointees, because, in any event, even under this proposed appointment they would be going on for 8 years, and I think you should try to find out all you can about them, but you have respected certain limitations in questioning these people. However, I would hope that the Senate’s sense of propriety would dictate that it follow the procedure or the custom that has prevailed in Virginia once they are on there, that a judge is almost automatically reconfirmed. In fact, in Virginia, he has been, after a positive showing of some unjudicial attitude on the bench, a substantial unjudicial attitude. This is my concern, and, as I say, I would expect the U.S. Senate in the Federal judge relationship to be the same as in Virginia. I cannot assume that this body would, under the circumstances, act less responsibly, and I made up a few notes on Professor Freund's observations.

Senator BAYH. May I, before you go ahead—I wonder if I could interrupt again?

Mr. SHUFORD. That is all right, sir.

Senator BAYH. I concur in that. Perhaps I am not a totally objective witness here, but I would suppose that the U.S. Senate would act as responsibly as the Virginia Senate, and vice versa. But here, really, by the passage of this kind of amendment, are we not changing what the definition of "responsibility” is?

For example, instead of being a distinguished member of the bar, suppose you are representing the State of Virginia, or the State of Indiana, in the U.S. Senate. Suppose you felt, in the depths of your



soul, that Shelley vs. Kraemer, which I think was the prominent case to which you referred a moment ago, or Baker vs. Carr, another landmark case, were very irresponsible, and that, indeed, these decisions gave that court the powers you describe as the supreme law of the land. And suppose that you thought that, by your own testimony, somebody ought to have the right to say: "Judge, maybe you are wrong?"

Now, would you not, as a Member of the Senate, have a responsibility to exercise your influence to see that that representation on the Supreme Court is changed? And would you not, just taking the political thing out of it, have—indeed, are we not giving you—the responsibility to take those steps if, in your heart, you feel that that judge acted, by your definition, nonjudicially and moved into the area of legislation ?

Mr. SHUFORD. Yes, sir, I think, in broad context, yes, sir. We could discuss this at quite some length, because there are answers that would depend on the issues posed.

For example, would we be complaining to you about a decision of the Supreme Court which reversed a prior constitutional decision? In which case I would base it on one ground, and I think the Senate action in that would not be interfering with the proper independence of the judiciary. In my view, Senate Joint Resolution 106 would not confer

power to reverse the decision. If the people want to reverse it, they can reverse it.

If, on the other hand, I simply objected to a landmark decision which was not really reversive of any prior ruling, I think my grounds would be totally pulled out from under me, because I do not envision, because we have not experienced it in Virginia, the Senate of the United States trying to tell the Court what to decide when the matter is properly before it and open to decision without binding precedent

Senator BAYH. You see, you get very close to going back to stare decisis forever. I do not think you want that. I have had a great personal involvement in some confirmation questions—involvements that have been some of the least enjoyable from the standpoint of a feeling, if you will, in my 18 years of legislative experience. But I have been involved in this whole business of confirmation and have seen first hand how it works.

We can go back and look at the confirmation hearings of Mr. Justice Brandeis: In my memory, confirmation battles have covered the spectrum. Criticisms which were directed at Justice Fortas-before some of the ethical questions were brought to light—and there were questions about the most recent nominee, Mr. Justice Rehnquist. I was concerned about some of Justice Rehnquist's positions on some of the basic issues of individual rights. His approach was quite different from that of the distinguished jurist, member of the bar from your State, Mr. Justice Powell with whom he was kept in tandem. It was my contention that these two men would look at the issues differently.

And, if you will look at the way the votes have been cast since then, that has happened in some significant cases. And if, indeed Justice Rehnquist and Justice Powell were to come before me for reconfirmation, I might well have to take the same position again, and do everything I could to see that Mr. Justice Powell was reconfirmed, and because of the deep convictions I have, I might feel responsible to fol

on it.

low the same course of action, with great reluctance, relative to Mr. Justice Rehnquist.

Mr. SHUFORD. I would hope, Senator-and maybe it is a fatuous hope I would think and I would hope, sir, that in such an instance, knowing that there is a review of this judge coming up, that he is not there for life, that first there would be a slight lessening of the personal concern with philosophy. In other words, I, personally, have disliked many decisions, but I am not at all of a mood to criticize the judge because he saw things differently, provided he approached them in a judicial manner and did what I think was proper workmanship on the job from the bench. Now, this is a hard line to draw.

Senator Bayh. It is an awfully hard line, and there are degrees of philosophy, and I do not suppose we ought to pursue this. We will be here all afternoon.

Mr. SHUFORD. That is right, sir.

Senator Bayi. But, for example, Louis Powell, I have known for a long time. I knew him when he was president of the American Bar Association, and I suppose both of us, both of us, would agree that in some areas we have significant philosophical differences. But if you look at the way Louis Powell voted on this recent case relative to illegitimate children, and the way Mr. Justice Rehnquist voted in an 8-to-1 decision, I think there you get beyond the place of reasonable differences in philosophy to the place where I am concerned about the way the Justice thinks in terms of some of the basic concepts that go beyond the normal distinction between liberal and conservative or right wing and left wing.

Mr. SHUFORD. I doubt anybody could ever divorce himself from that kind of thought process, Senator. I suggest it is one that must be controlled, and I would hope, having arrived at the position in the United States which to me is an extremely high one, that it can be one which is exercised properly. And I am not talking about, as I say, getting in a situation whereby any judge would be subject to the will of the Representative or Senator from his district; I am talking about the whole body, and when that question comes up before the whole body, the same thing will happen. If there is a serious challenge made to a judge from any source, as happens now in original confirmations, you will find the bar associations, the National, State and local, and many professors such as Professor Freund and Professor Kurland, who are eminent authorities, you will find a host of people that will render support, guidance, and information and come forth to the Senate in trying to keep its deliberations as to what is proper.

Now, going back to this decision you mentioned on which Mr. Justice Powell and Mr. Justice Rehnquist split, I can find logic in both positions. Very frankly, I think in either of them there were legislative answers to that simply by statutory enactment, because the thing involved was something over which there is a great deal of Federal purse control, and these things can be handled in ways by the Senate that would not force the Senate to take out its disagreement on the office itself and say "All right, because we do not like what you decided, we are going to subject you to the possibility of denying confirmation." I think it can be handled in a totally responsible way, and my experience has been that this is true.

Senator Bayh. I was not using that particular case, that one particular

case, as being the kind of thing that would necessarily bring a

judge down, but just to show that there are distinguishable differences in philosophy.

Mr. SHUFORD. And all I am saying is that I think it very apt that the Senate, upon reflection on any of these cases, would find the decision was not all that difficult. In other words, I would hope the decision in the Senate in any of these would be on: Has the man acted judiciously? whether I like the philosophy or not. In all but the Supreme Court decisions, they are subject to review, in any event.

Mr. Bayh. Having sat here and listened to some of my distinguished colleagues address themselves to the thrust of Baker v. Carr and Brown v. Board and Miranda and to Justice Marshall and Justice Fortas and the later Justices following, Justices Burger, Blackmun, on both sides, I cannot be sure. This is not trivia. This is a matter of great responsibility. A judge has the responsibility to say “I do not care. If I think this is unconstitutional, I am going to strike it down even though I am coming up 8 years from now.”

Mr. SHUFORD. I think he will. I think that we underestimate the Federal judiciary and the Senate if we assume something contrary to that under this proposal.

Now, there are many proposals suggested on the floor of the Senate about which I have read, and which I would be completely opposed to, directed toward disciplining or controlling the judiciary. I am not one of those. I have spent too many years at the practice of law, and I love it, and I do not want to see its proper independence in any way interfered with. I do not think Senate Joint Resolution 106 does it, if I may say so, and my last couple of paragraphs may give you some idea of why I do not think it will be used very much.

Virginia's trial judges are subject to reelection or reconfirmation every 8 years; our appellate judges every 12 years. As a practical matter they enjoy life tenure. But I am convinced that this is due in no small measure to the fact that our judges eschew any legislative prerogatives, and I am equally convinced that many of them, at least, have eschewed such a legislative role primarily because they know they are not forever beyond the reach of the legislature. In other words, it is a psychological thing to me, and a good one. It is part of the system of checks and balances. This Senate and the House of Representatives, repeatedly debates this issue; that is, whether or not they should do a certain thing or whether or not it is beyond their proper role, or function or power. It is an issue which you debate with yourselves, and I think this is something that the judiciary does, and it is something that because there is an obvious limitation upon your power, people are more conscious of it.

In conclusion, I respectfully submit that each branch of Government has an equally important, though different, responsibility to the American people in regard to the preservation and protection of our liberties. When this equality is threatened by any of these branches, it is incumbent upon the other two to restore it, without in any way seeking to establish a superior position on the part of either of them. This I conceive to be the purpose of Senate Joint Resolution 106. I believe this would be its results, if adopted, because I think the psychological impact of knowing a man is not beyond the power of anybody or anything as long as he lives—and that is what we have now—will have a salutary effect on his demeanor, which will reduce the need for the

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