manifest tenet of the Constitution void. Without this, all the reservations of particular rights or privileges would almost amount to nothing,..."

The Federalist goes on:

"That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws."

Certainly, I submit, our history reflects an acceptance of these arguments and a commitment to them. However distasteful the actions of the Federal judiciary may have been from time to time, the American people, through their legislators, have opposed any incursions on that judicial independence that they have regarded as essential to the concept of American constitutional democracy. Thus, the most powerful leaders in our history have been thwarted in their attempts to curb judicial independence. Jefferson failed in his attempts to bring the judiciary to heel; Jackson in his. The radical leaders of the reconstruction Congress could not persuade of the desirability of limiting the judicial power. And Franklin Delano Roosevelt's court-packing plan met defeat in this very body.

In this era when Government has, for better or worse, entered into control of and participation in so much of the lives of every American, the need for an independent judiciary becomes greater not less. It is in the judiciary that the individual and the minority can sometimes find succor from impositions that no governmental agency should have the right to impose. I do not mean by this, of course, that the judiciary alone is capable of protecting our liberties. But I do contend that it is only with the participation of an independent judiciary that the other branches of our Government will assure the rights of the individual against the behemoth of government. An independent judiciary is a necessary if not a sufficient condition of our liberty.

A renewable term, as proposed in Senate Joint Resolution 106 seems to me the most destructive of devices for limiting the independence of judges. For, it must be remembered, that such authority as the judicial branch of our Government may have, vis-a-vis other branches of the Government, is totally dependent on the force of public opinion. And so, whether or not judges would, under the proposed scheme, actually make their decisions with a concern for legislative approbation by way of reappointment, it is likely to become true that the public would regard this as the basis for their decision. Only if the purpose of the proposal is further to sap the strength of the judiciary should a renewable term be regarded as desirable.

There is some recent experience with judicial terms renewable at the will of the legislature that I will put to you, although it is geographically remote. In 1951, judges of the German constitutional court were given renewable 8-year terms, renewable at the decision of the legislature. After 19 years of experience with this system, it was abandoned in 1970 in favor of a fixed 12-year term.

A short, fixed, nonrenewable term would make more difficult the problem of securing men of appropriate talents to undertake the job. But at least those who did would not be performing it with the knowledge that they would some day be accountable to the political predilections of a majority of the Senate for their continuance in office.

Indeed, I am of the view that we already have too much of this problem by reason of the fact that we now permit "promotions" from within the Federal judicial system. For there are some lower court judges who indulge their task with recognition that, if they please the appointing powers, they may receive a new or better position. If I had my way, I should provide that, in order to preserve the independence of the Federal judiciary, a Federal judge should be forever barred from any other post in national government, judicial or nonjudicial, elected or appointive.

I am, I think, sufficiently on record to show that I am not an unqualified admirer of the efforts of the Federal judiciary. I am, by study and experience, committed to the desirability of and need for judicial restraint. But I am equally of the view that that restraint must be self-imposed; that the imposition of external restraints such as those contained in this resolution would be far more disastrous in its effect than even the most headstrong judiciary.

In fact, the existent deficiencies of the judiciary, as I see them, are in no small measure attributable to the failure of this body to exercise the discretion that, from the beginning, the Constitution committed to it. Too often, the Senate has treated and continues to treat Federal judicial appointments as though they were mere matters of patronage to be dispensed at the whim of the senators from the State of origin of the appointee. I submit that a look at the records of this Committee will reveal how lightly most hearings on judicial competence of nominees are actually treated.

So long as you have given me the courtesy of this forum, I would like to impose one suggestion for change in judicial tenure that I think is appropriate. And I believe that it is one that will not interfere with the essential of judicial independence. I refer to the desirability of a compulsory retirement age for judicial personnel. For history has shown us that, so long as retirement is a matter of discretion with the individual jurists, there are some who will sit as judges long after they have lost the capacity to do so. The history of the Supreme Court is replete with examples of Justices whose mental or physical conditions precluded them from exercising the arduous functions that must be performed by Federal judicial officers. I cannot, of course, deny that many of our judges-Learned Hand is certainly a sterling examplehave continued to serve with distinction long after any arbitrary retirement age would have called for their departure. But I have reluctantly come to the view that the price of physical or mental debility among some judges is too high a price to pay for the continuance on the bench of those few whose excellence is not dimmed by age.

I conclude by exhorting you to reject S.J. Res. 106. Its benefits are dubious at best; its costs are likely to be exorbitant. We cannot afford the strains in our constitutional system that this subordination of the judicial power would effect.

Thank you, Mr. Chairman.

Senator BAYH. Thank you, Professor Kurland.

What retirement age would you suggest?

Mr. KURLAND. I would suggest 70, but I could not logically justify 70 rather than 75 or 65.

I suppose one might examine the history of courts that we know and find our at what age this problem of senility is really likely to become

acute.

I must point out that this suggestion is not a new one. Indeed, Mr. Chief Justice Hughes between his terms on the Court suggested a compulsory retirement age, but then he stayed in office long after that retirement age that he had proposed earlier. I think the question of what age it should be is a harder one than whether there comes a time when retirement might be compelled.

Senator BAYH. What, using a senatorial term, seniority or experience do you feel is beneficial to a judge?

In other words, how long does it take to learn the trade?

Mr. KURLAND. Well, I expect it differs according to the personal experience and the different jobs. It would seem to me quite clear, from the limited experience that I have that a new Supreme Court Justice takes about 2 years to fit himself into the post before he feels comfortable with the job.

Senator BAYH. And you would not be concerned in setting some sort of a retirement age, 70, 72, 75, say?

Mr. KURLAND. Well, I do not think the problem of time for adapting to the new post would be a reason for not imposing retirement age, unless the retirement age were extraordinarily low. Most of our judges or justices are appointed in their 50's, I think and nobody is suggesting a 55 retirement date.

Senator BAYH. You direct some admonitions at this committee on the subject, and I think they probably have merit, relative to the rather cavalier manner in which we treat certain judicial appointments, particularly at the lower court level. These sometimes come back to haunt us when those who are treated lightly at the lower court level are then subjected to more severe scrutiny at the higher court level. when they are appointed to a different post. Do you have any specific suggestions as to what we in the Judiciary Committee or in the Senate as a whole could do to get around this lack of a full consideration?

Mr. KURLAND. I do not think there is anything here but a failure to take the time to do it. If I may say so, it is nothing more thar a failure to take more seriously the appointment, to regard as just ene more appointment of just an individual Senator, rather than one that really requires the approval of the whole Senate.

Senator BAYH. Do you feel that we need any kind of committee. investigations, staff investigations, independent from that which is conducted by the FBI or the Justice Department to try to get a legislative prospective, or would that only be asking for trouble?"

Mr. KURLAND. I do not think there is any need for a special commission.

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 BAYH. 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