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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 judi

ciary 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 you— nor 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 constitutionally, 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 now 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 be that 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 BAYH. 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

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 awhile 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 BAYI. 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

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