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Senator Bayh. Well, I did not mean a commission. But now I sit here as a Senator and the only information I have relative to a judge when I start out, whether he is a Federal District Court Judge, an Appellate Court Judge, or a Supreme Court Justice, is that information which has been provided by an agency of our Government that is part of the branch of Government that makes the recommendation. Do I, to fulfill my responsbility which you suggest is not being fulfilled, need an independent source of information to fulfill the job?

I am not thinking of a commission necessarily. Mr. KURLAND. I think it can be accomplished through hearings. Obviously, as recent years have quite clearly revealed, the capacity of the Senate in hearings, and the Senate Judiciary Committee in hearings - to get data as to nominees to the Supreme Court has not been unduly restrictive.

The information that is relevant has been available. If the Committee is prepared to invest the time in developing that information, that is.

Senator Bayh. What part do you think the American Bar Association and their committee should play in that investigation?

Mr. KURLAND. I think they should be available for the purpose of testifying as to what they believe the lawyer-like capacities and experience of a nominee have been, but not as a screening device, as a witness. They should put forth such information as they have to those who have to make the decision, that is, the Senate Judiciary Committee.

Senator Bayh. As a Senator, I do not want any nonjudicial or nongovernmental organization serving as a screening device. On the other hand, I wonder if an organization such as the Bar Association cannot be of a tremendous service to us in the Congress and, indeed, to the President on those nominated to serve as a sort of a screen against the obvious political appointment that has no place?

Mr. KURLAND. I do not have any question but what they can provide the service, since the lawyers in the community are those who are the most to likely know about the nominee's character and ability.

What I am suggesting, however, is it is not their conclusions that should be relevant to your consideration but the reasons for their conclusions, those reasons should be supplied not merely as a proposition that they voted up or down on the potential appointee.

Senator Bays. You stressed one point in your testimony which seems to address itself to a common problem raised by my distinguished colleague from Virginia, Senator Byrd, in which you come to an opposite conclusion relative to the impact that the present amendment would have. Let me ask you to expand your thinking just a bit on that.

There is a considerable amount of concern, and perhaps justified, that there is an increased concentration of power in the Federal Government.

Now, as I recall Senator Byrd's argument, he thought this proposal, this concentration of power, would be lessened or at least that it would be or could be more satisfactorily dealt with by passing this measure, and am I right in interpreting your statement as disagreeing with that conclusion? I do not want to put words in your mouth. It seems to me you believe the total independence of the judiciary was one of the few checks we had?

Mr. KURLAND. Let me suggest that I think in terms of concentration of power you have to talk about two things: you have to talk about the movement of power into the national government and away from the State governments, and I think there is also the expansion of what Justice Frankfurter called the service State space, that almost every aspect of an individual's life is affected somehow or other by governmental action. And with regard to the latter, it seems to me that there is a necessity for some branch of government to perform the role of protecting the individual against intrusions by government, whether it is national or State government, or, indeed, whether it is the Executive or legislative branch. And I specify "Executive or legislative branch” because it is those two that really have the most direct capacity to impose duties and obligations and restraints on individuals.

It is, therefore, that I think we need a judiciary independent of those two branches to which individuals may appeal for protection of those liberties that are specified in our Constitution with which we all, I take it, agree. I do not know of any substitutes for an independent judiciary to perform that function.

Senator Bayh. Now, although there are some who recommend a need for this legislation as a means of curbing additional excesses, you suggest that with the growth of Federal power that perhaps we need a judiciary as it is now constituted to curb legislative and Executive excesses?

Mr. KURLAND. That is right. I think that the latter function is in the courts, and I think it must be recognized that it is all of the Federal courts who are engaged in it at the moment. So far as decisions in matters like Baker v. Carr or, indeed, the restrictive covenant cases that were referred to, the rationales are ones I find most unsatisfying to me in a world such as today's, and those decisions would be reversed by me. But I do not know how you get anybody to sit over the courts without destroying their independence, which I think is essential to the good work that they necessarily-well, not necessarily—but the good work that they have been doing.

Senator Bayh. The Baker v. Carr example is one that I have been personally involved in, and which I, respectfully, would have been on the other side of the argument. Our late and beloved colleague, Senator Dirksen, proposed a constitutional amendment on this topic. And a number of States have moved toward calling for a centennial convention on it, if there is this kind of activity toward amending the Constitution, it is not difficult for me to envision similar activity being directed at individual senators who were unwilling to stand up and take an issue on the reconfirmation of judges that were put forth.

Mr. KURLAND. I think so. I again would like to refer to Mr. Justice Frankfurther who said that a timid judge like a crooked judge is a lawless judge. We cannot afford timidity.

Senator BAYH. I did not think of this parallel at the time I was discussing the matter with my colleague from Virginia, but, interestingly enough, we are presently going throught the constitutional amendment process in close sequence to a Supreme Court decision with which we could not abide. Since the enactment of the 14th amendment, the Supreme Court has been unwilling to interpret the word "person” in the due process and equal protection clauses to include women citizens of this country in the same way it includes racial and other minorites. And, as a result of this, for about 49 years there has been a movement through the legislative process to try to mend the Constitution. The Court was confronted in Reed and two other cases with an opportunity to interpret the 14th amendment to apply to women with full force. As a sponsor of the equal rights amendment in the Senate, I could envision, and really was hoping, that the Court would take away the reason for change. Instead of going all the way and reclassifying women as persons, however they just dealt with the unreasonableness of the specific classification at issue. And since then the Congress has gone ahead and approved the amendment so the ratification process can start, and it is starting. So I think we have pretty good evidence of our ability to say if the Court is wrong we can amend the Constitution.

Would you care to direct yourself to the possibilities of changing court decisions short of constitutional amendment, that is, by legislation?

Professor Freund touched on this topic, and I just wondered if you would care to offer your opinion?

Mr. KURLAND. It does make me very timid when you tell me Professor Freund has already spoken on the subject. If I say what he said, I have added nothing, and if I say something different from what he said, then I am wrong.

Senator Bayh. I am sure that he would take issue with you on that.

Mr. KURLAND. I think that the constitutional amendment process should, in fact, be limited as a process, that it should go only to basic deficiencies in the structure of Government of our country. As to the power of the legislature short of constitutional amendment to provide an interpretation of the 14th amendment, that is, through the 5th section of the 14th amendment, I certainly think that it is an area that will be burgeoning. That is, I think that the Court in the future may very well recognize that it is not the only body concerned with constitutional principles and that a legislative judgment as to constitutionality, as to the meaning of the Constitution, is something which is entitled to great weight. I do not believe that the legislature has utilized its legislative power sufficiently to reject decisions of the Court either in the statutory area or to a more limited extent in the constitutional area. But looking in a crystal ball is an unproductive thing as far as I am concered.

Senator BAYH. I think I should make one observation: The example of a constitutional amendment which I referred to, as the record will show, put you, our present witness, and our previous witness, Professor Freund, I think, on the opposite side of the merits of that given issue from me. But I was just using that as an example of the Congress' willingness to respond in the event the Court does not.

Mr. KURLAND. Most people take a dim view of legislating by the Court, except that which we would legislate ourselves.

Senator Bays. It depends on what criteria we use

Well, thank you very much, Professor Kurland. We appreciate your giving us the benefit of your thouthts.

Mr. Bernard Segal of Philadelphia whom we had hoped would be with us this morning is ill and cannot be with us. We will put his statement in the record as well as the letters we have received, and other material pertinent to this subject.

[The documents referred to follow:]


I appreciate and welcome the opportunity to present my views to the Subcommittee regarding the proposed Constitutional Amendment which would reduce the term of every Article III Judge appointed after adoption of the Amendment, to eight years with the right, at the termination of each eight-year term, to stand for reconfirmation by the Senate for an additional eight-year term.

I speak as a practicing lawyer with four decades of experience in Federal and State courts. In addition, during much of this period, I have been concerned with and actively involved in attempts to improve the quality of our judges, to produce better and more realistic salaries and working conditions for them, and to induce adoption of procedures for the removal, discipline or compulsory retirement of the judge who cannot perform his duties, whether due to physical or mental illness, advanced age, or lack of character or temperament.

I have served as President of the American Bar Association, President of the American College of Trial Lawyers and Chairman of the Board of Directors of the American Judicature Society. In all three posts, I gave a good deal of emphasis to reform in judicial selection, tenure, and compensation.

From 1956 to 1962, I was Chairman of the Standing Committee on Federal Judiciary of the American Bar Association (and I continue to attend all meetings of this Committee); from 1963 to 1969, I was Chairman of the Association's Standing Committee on Judicial Selection, Tenure and Compensation; and from 1962 to 1968, I served as a member of the Council of the ABA Section of Judicial Administration. I have been a member of the Federal Judicial Center's Study Group on the Work of the Supreme Court, appointed by Chief Justice Warren E. Burger, and before that I was Chairman of the American Bar Foundation's Advisory Committee on the Study of Congestion in the United States Court of Appeals. In 1953 and 1954, by appointment of President Eisenhower, I was Chairman of the Commission on Congressional and Judicial Salaries, created by the 83rd Congress, and currently I am a member of the Commission on Executive, Legislative and Judicial Salaries. At State and local levels, I have been Chairman of Bar Association Judiciary Committees, and I served by appointment of Governor William W. Scranton of Pennsylvania, as Chairman of the Judicial Nominating Commission which the Governor vested with power to submit panels from which he obligated himself to make his judicial appointments to fill vacancies created by new legislation.

In the several capacities I have named and in others I omit in the interests of time and space, I have had the privilege of appearing many times before Subcommittees of the Senate Committee on the Judiciary and on occasion before the full Committee. However, I have never addressed the Committee, or any of its Subcommittees, on a question which, with full deference to its distinguished sponsor, I regard as having a greater potential for harm than S.J. Res. 106. Except for the comfort I draw from the fact that the numerous prior proposed Constitutional Amendments to the same effect, most often originating in the House but sometimes in the Senate, have never been reported to the floor, I would be profoundly disturbed by S.J. Res. 106.

Long ago, De Toqueville concluded that the independent Federal Judiciary represented the peculiar genius of the American political system. This sentiment has been echoed many times since then. When the American Bar Association first established Law Day USA as a vivid contrast to the May Day of the Communist world, the Association pointed out that freedom and justice for the individual, grounded in a just system of laws and protected by the courts, is America's main claim to moral leadership in the world community. Since the ultimate guardian of these basic freedoms is our judicial system, we cannot maintain our claim to moral leadership unless we demonstrate the superiority of that system—its efficiency, its effectiveness. In that system, the judge is necessarily the keystone. As a great President of the American Bar Association, former Chief Justice Vanderbilt of New Jersey, observed many years ago:

“The basic consideration in every judicial establishment is the caliber of its personnel. The law as administered cannot be better than the judge who

expounds it. ...' My own experience amply affirms this observation; and so I believe that the essential question in evaluating the proposed Amendment is whether it may reasonably be expected to improve the quality of our Federal Judges and of the

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justice they render. I am firmly convinced that not only would the Amendment not lead to any such improvement, but on the contrary, it would have grave detrimental effects on both.

Students of the subject agree, I think that three elements are essential to obtaining judges of outstanding quality: impartiality, independence and immunity. Without these, the personal qualifications we seek in a judge-his character, his honesty, his wisdom, his learning, his courage-are of little import or value.

Of these three essentials, it is independence which forms the base of the triangle, for without independence, a judge cannot be partial, he cannot be immune. Our Founding Fathers recognized this. Both Madison and Hamilton stressed the need for independence of the judiciary. Indeed, Hamilton, in the Federalist papers, developed at length the theme that under our Constitution containing certain limitations to protect the liberties of the people, the complete independence of courts of justice is peculiarly essential. He pointed out that although individual oppression may now and then proceed from the courts, the general liberty of the people can never be endangered from that quarter-so long as the judiciary remains distinct from both the legislator and the executive, and he concluded that “Nothing will contribute so much as this [i.e., life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."1

How then do we insure the separation of our judicial branch from the other branches of government? If the judicial power is truly to be removed from the executive and the legislative branches, then we must start by removing the selection and tenure of judges as far as possible from the processes of partisan politics. Indeed, if there is any single principle upon which there is almost universal agreement among organizations of the legal profession and leading scholars in the law, as well as important citizens' groups, it is that placing judicial selection within the partisan political process strikes at the heart of an independent judiciary and demeans both the judge and the court of justice in which he presides,

In our Federal Judicial system, life tenure for judges has been the keystone of judicial independence. While life tenure is not the rule in most of our States, a very marked trend in recent years has been for States to establish merit selection and merit tenure plans for judges. In the decade of the 60's alone, twelve States adopted one or another or both such plans. The surge of State's instituting these programs in recent years reflects the yearning of citizens to take and keep their judges out of politics. 2

In our Federal system, experience over the years has taught us the wisdom of the Founding Fathers' concept. The life tenure provided for Federal judges has attracted men of quality and independence to the Federal Bench and has insulated Federal judges from political considerations that State judges have often, although decreasingly, been prey to. As I have indicated, students of our judicial system are virtually unanimous in the view that there is a direct relationship between life tenure and the comparatively high quality of our Federal Bench. Obviously, however, although life tenure will attract leading members of the legal profession to the Bench, there is no guarantee that lawyers of high character and ability will be tendered appointment. A great deal of progress has been made in establishing procedures to improve the quality of appointees to the Federal courts. The American Bar Association, with the support of the organized Bar of the Country, has played a strong leadership role in this regard. Under a system announced in the closing months of 1952 by Ross L. Malone, then The Deputy Attorney General (subsequently President of the American Bar Association), and made effective by Attorney General Brownell, followed with progressive improvements by every Attorney General since then-William P. Rogers, Robert F. Kennedy, Nicholas de B. Katzenbach, Ramsey Clark, John N. Mitchell and Richard G. Kleindienst-, the rule has been that no person will be nominated by the President for a lifetime judgeship without his name having first been submitted by The Deputy Attorney General to the ABA Standing Committee on Federal Judiciary for its investigation and report.3 Without elaborating on

1 Federalist Papers, No. 78: The Federalist 503 (Mod. Lib. Ed. 1941). 2 It is an arresting fact that, with a minor exception, the only other places in the world where the judges are still elected are the Soviet Union and the satellite countries.

3 This does not apply as to nominations of Justices of the Supreme Court at the present time. Beginning with the nomination of Justice William J. Brennan by President Eisenhower and running through the rest of his Administration and the Administrations of Presidents Kennedy and Johnson, a similar procedure was followed in the case of nominations for the Supreme Court. President Nixon initially announced that he would not consult anyone except the Attorney General, but he later agreed to submit a panel in connection with each vacancy (rather than a single individual), and he did so. For reasons which have drawn much public comment and need not be repeated here, he concluded that he would exclude nominations for the Supreme Court from the procedure which, however, he continued to have the Attorney General follow in all other cases. The Senate Judiciary Committee continues, as it has since 1945, to request the views of the ABA Standing Committee on Federal Judiciary as to all nominees for Federal courts, including the Supreme Court.

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