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As for myself, I am completely opposed to the proposal which, if adopted, would obviously have a most harmful effect on the independence of the Federal judiciary—one of the outstanding and most desirable features of our judicial system. Nothing would be worse than to politicize our judges into looking over their shoulders every eight years. I hope that your Committee will unanimously oppose the resolution. With kind regards, Very sincerely yours,

FRANCIS T. P. PLIMPTON.

COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK,

SCHOOL OF LAW,

New York, N.Y., May 11, 1972. Hon. Birch Bayi, U.S. Senate, Washington, D.C.

DEAR SENATOR Bays: Thank you for your letter of May 1 in which you ask for my comments on a proposed constitutional amendment, S.J. Res. 106, which would require reconfirmation of Federal judges every eight years.

If I can, I hope to send you somewhat more detaile comments for he subcommittee. I can say now, however, that S.J. Res. 106 is not only unwise but, if enacted, would be disastrous for our system of government.

One may begin with No. 78 of the Federalist Papers, which states the reasons of the Founding Fathers for providing lifetime tenure for Federal judges. Our experience has strongly borne out Hamilton's position, and to me it remains unanswered and unanswerable. Indeed, 180 years of experience has borne out the argument of de Tocqueville's Democracy in America, which goes beyond Hamilton's, that the peculiar genius of the American political system lies in the independent Federal judiciary, which balances the democratic political process. A judiciary that is subject to periodic review by elected officials cannot preserve its independent dedication to principle, immune from political pressures.

I think it fair to say that our independent Federal judiciary has been essential to preserve our civil rights; in recent years the decisions in the school desegregation cases, the reapportionment cases and many other constitutionally required but politically unpopular matters would have been impossible had this amendment been in effect.

I am writing this letter as an individual, as you requested. Within the Association of the Bar of the City of New York the matter falls within the jurisdiction of the Committee on Federal Courts, and I have asked the Chairman of that Committee to comment. Because it will require some time for that Committee to prepare a formal report and submit it for debate and approval, I am not sure that your timetable will permit this. In any event, I think that the issues are so fundamental and the answers so clear that one would anticipate that virtually all lawyers and legal scholars would agree in opposing this proposed constitutional amendment. Cordially,

SHELDON H. ELSEN, Adjunct Professor of Law.

NATIONAL CENTER FOR STATE COURTS,

Washington, D.C., May 18, 1972. Hon. Birch Bayi, Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary,

U.S. Senate, Washington, D.C. DEAR SENATOR BAYH: At the suggestion of Michael S. Helfer, Assistant Counsel to the Subcommittee on Constitutional Amendments, I am writing to set out my comments on Senate Joint Resolution 106.

The National Center for State Courts has undertaken the responsibility of assisting the states in the improvement of their court systems. Alterations in existing constitutional provisions regarding tenure, discipline and removal of Federal Judges do not come within the scope of that activity. It should also be understood that the Board of Directors of the National Center for State Courts has not had an opportunity to review the proposed constitutional amendment; therefore, the following comments are personal only.

Much experience has been accumulated by several states in recent years in regard to judicial selection, tenure and discipline. The trend has been away from the formerly prevailing pattern of partisan election of judges; varying methods of nonpartisan selection, accompanied by more secure tenure, have been substituted in several states. Characteristically, constitutional or statutory provisions establishing secure tenure have been accompanied by new procedures for discipline or removal of judges who become unwilling or unable properly to perform their duties. The prototype of modern systems for discipline and removal is that of California which has now been in effect more than ten years. This procedure assumes the ineffectiveness of impeachment to deal with the problem of misconduct or unfitness. It substitutes a procedure under which any person may submit a complaint to an independent commission concerning any claim of judicial misconduct or unfitness. The commission screens out obviously insubstantial complaints, conducts investigation or hearing when that is necessary, and can recommend to the state supreme court discipline, including removal or involuntary retirement.

As a member of the California Judiciary, I can assure you that there is widespread satisfaction with the operation of this procedure in my State. Although discipline has rarely been imposed formally, several retirements have occurred during the course of private investigations by the Commission on Judicial Qualifications. The strength and public stature of the judiciary has been enhanced; at the same time, there has been no hint of political interference with the independence of our judiciary. Similar results have been obtained in Texas, New Mexico, Colorado, Maryland and several other states.

It is with this background that I read Senate Joint Resolution 106. It provides for termination of the service of a Federal Judge at the end of an eight year term, if he fails of renomination or reconfirmation. No standards for renomination or reconfirmation are stated. The proposal goes directly contrary to the modern trend in favor of secure tenure coupled with a fair and effective procedure for discipline or removal. Moreover, it appears likely that the adoption of the proposed amendment would gravely undermine the independence of the Federal Judiciary by subjecting the continued tenure of the judges to extinction on an essentially political basis: First, by the President through his failure to renominate and second, by Senators through their failure to reconfirm. At the same time, no provision is made for discipline, removal or involuntary retirement of any Federal Judge on the ground of misconduct or incapacity.

To summarize, it seems to me that the proposed constitutional amendment needlessly threatens the independence and quality of the Federal bench without effectively meeting any need that may exist for a new procedure of discipline and removal. Sincerely yours,

WINSLOW CHRISTIAN.

NOTRE DAME LAW SCHOOL,
Notre Dame, Ind., May 19, 1972.

Hon. Birch BAYH,
U.S. Senate, Washington, D.C.

DEAR BiRch: You asked me for comments on S.J. Res. 106.

I have discussed that proposal with colleagues learned in constitutional law and federal courts and receive from them the strong impression that Senator Byrd's proposal to require reconfirmation of federal judges every eight years would be unwise.

I can say for myself that I have always regarded the federal judiciary as a bastion of objectivity. It is my observation of practicing lawyers that one rarely even suspects favoritism or political influence_let alone corruption—when he is dealing with a federal judge.

One would hope, of course, that this were true of all judges. The main reason it is not, in my opinion, is that so many state-court judges are simply not able to be above the storm. They must bear in mind -and if they need not, self preservation being what it is, they dothat their tenure in office depends upon voters, or powerful supporters, or public favor, or all three. Those factors are powerful dampeners of judicial courage. The judge is rare indeed who can ignore them.

The federal judge is more often free of these influences. My impression is that most lawyers well recognize the factors Senator Byrd is concerned about—the pervasive invulnerability of a federal judge—but that very factor is a source of judicial strength. Most of us, I think, believe the strength is worth the risk of too many years on the bench. Sincerely,

Thomas L. SHAFFER,

Dean.

INDIANA UNIVERSITY,

School of Law,

Bloomington, Ind. June 1, 1972. Hon. Birch Bayi, U.S. Senate, Senate Ofice Building, Washington, D. C.

DEAR SENATOR: I apologize ahjectly for the lateness of my anwser to your letter of May 1. However, my comments will not be of enough significance that they would have made any contribution had they been sent before May 15.

Having no personal interest whatsoever, I strongly oppose the proposed constitutional amendment proposed by Senator Byrd. You and I are familiar with the origin and history of the federal judiciary; so there is no reason for me to recount that here. However, I am not impressed with the reasons given for this kind of tampering with a system which has worked more than reasonably well for more than one hundred seventy five years.

There is another feature of the proposal that seems odd to me. Senator Byrd reports that he has introduced a bill that, if under his proposed amendment a judge is not re-confirmed, he will be retired at full pay. If this is good, why not incorporate it into the amendment itself? On the other hand, if a judge, under the proposal, is not re-confirmed for a valid reason, why should he continue to draw full pay for twenty, thirty or even forty years?

It seems to me that the most effective way of insuring a competent federal judiciary is the careful investigation by the United States Senate of any proposed judge at the time of his initial nomination. You have helped prove that twice quite recently. Any proposal requiring periodic re-confirmation tacitly admits that the Senate did not properly perform its function earlier. With warm personal regards, I am Sincerely,

LEON H. WALLACE.

THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK,

New York, N.Y. June 1, 1972.
SENATOR Birch BAYH,
Chairman, Subcommittee on Constitutional Amendments, Commiitee on the Judiciary,

U.S. Senate, Washington, D.C.

DEAR SENAtor Bays: Our Committee's comments on a proposal of Senator Harry F. Byrd, Jr. of Virginia which would require that federal judges be subject to a reconfirmation procedure every eight years (S.J. Res. 106) are set forth in the annexed Report. Very truly yours,

BARRY H. GARFINKEL.

REPORT OF THE FEDERAL Courts COMMITTEE OF THE BAR ASSOCIATION OF THE

CITY OF NEW YORK ON A PROPOSED AMENDMENT TO THE CONSTITUTION TO REQUIRE RECONFIRMATION OF FEDERAL JUDGES EVERY Eight YEARS (S.J. Res. 106) Senator Harry F. Byrd, Jr. of Virginia has proposed an amendment to the United States Constitution which would require that federal judges be subject to a reconfirmation procedure every eight years (S.J. Res. 106). For the reasons set forth below, this Committee opposes the proposed amendment to the Constitution as unnecessary and undesirable.

the ve

Few would quarrel with the proposition that amending the Constitution is an undertaking which requires very substantial justification. We submit that no showing has been made, either in Senator Byrd's brief remarks reporduced in the March 15, 1972 Congressional Record or anywhere else, that the Founding Fathers' belief in the desirability of judicial independence has proven ill-founded.

It is true, and it has always been true, that in many cases individuals will be critical of the courts for going too far, for requiring too much, for acting too expeditiously. It has always been equally evident that others will speak critically of

same courts for precisely the opposite reasons. Decision-making is an inherently disputable process when matters of constitutional interpretation or national importance are in issue. Aware of this, the framers of the Constitution nonetheless settled upon tenure for federal judges during “good behavior,” a term which most commentators agree was not intended to subject the federal courts to congressional review. [E.g., Kurland, The Constitution and the Tenure of Federal Judges: Some Notes From History, 36 U. Chi. L. Rev. 655, 697 (1969) ; Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 Ford L. Rev. 1, 51-52 (1970); Shipley, Legislative Control of Judicial Behavior, 35 Law & Contemp. Prob. 178, 201 (1970); and see the dissenting opinion of the late Mr. Justice Black in Chandler v. Judicial Council, 398 U.S. 74, 141-42 (1970).]

The arguments for an independent federal judiciary are well known and need not be repeated here. A member of the Subcommittee on Constitutional Amendments, Senator Sam J. Ervin, Jr. of North Carolina, recently reviewed the history of Article III of the Constitution and summarized it in this way:

The Founding Fathers knew that the form of government they established would not create a judiciary composed of judicial angels who could do no wrong. They knew that the activities of a few judges might handicap the operation of the system, but at the same time they realized that individual liberty is best protected by an independent judiciary composed of judges who are subject to the Constitution alone. They had learned the lesson of history, and attempted to build safeguards into our system which would prevent its repetition. We must not reject their wisdom—and destroy our own freedoms—by regarding the Constitution they drafted as a piece of ancient parchment which can be folded and rearranged to suit the whims of individual men.

Ervin, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108, 127 (1970). It is hardly necessary to impress upon this Subcommittee of the Senate the importance of the balance of powers in our federal system among three co-equal branches of government. The assertion by Senator Byrd that “[n]othing in our system at present exists to control these judges” is a statement not borne out by the Constitution. Federal judges are nominated by the Executive Branch and are subject to confirmation by the Legislative Branch. All final decisions by District Judges are reviewable as of right in the Courts of Appeals and, depending upon the nature of the case, as a matter of right or discretion in the Supreme Court. Thus, the arbitrary conduct of one judge may always be reviewed by at least one multi-member appellate court. On questions of statutory interpretation where Congress disagrees with the federal courts, Congress may amend the particular statute. It is only in matters of constitutional interpretation that the federal courts have—or, more accurately, the United States Supreme Court has—the final say. Even so, the Congress may legislate within the constitutional perimeters set by the Court and, in the event of severe tension, may seek to amend the Constitution itself. Finally, in extreme cases of “high crimes and misdemeanors, the remedy of impeachment is available. The Constitution, therefore, provides ample remedies to correct the abuses of judges who step outside the law.

On the other hand, what does seem clear to us is that to require federal judges to answer to the Senate—and therefore to the electorate—would gravely and unwisely shift the balance of power among the branches of government. For example, to require the Justices of the Supreme Court to submit every few years to what would become an election campaign, whereby they would be forced to place themselves in nomination and to justify their decision and their writings of the past, would inevitably be to embroil the judiciary in partisan politics and to destroy its independence.

Because we believe that the proposed amendment has not been shown to be necessary, would encourage mediocrity, and would destroy the desirable independence of the Federal judiciary, we strongly urge that the S.J. Res. 106 be disapproved.

[Dated: June 1, 1972.[

COMMITTEE ON THE FEDERAL COURTS

Jeffrey A. Barist
Robert S. Blanc
Elizabeth Bonner Head
Alvin K. Hellerstein
Robert H. Hermann
Geoffrey M. Kalmus
Edward Labaton
Pierre Nelson Leval
Robert A. Meister

Barry H. Garfinkel, Chairman

Michael W. Mitchell
Peter H. Morrison
Harvey D. Myerson
Richard E. Nolan
Bernard W. Nussbaum
Charles P. Sifton
David P. Steinmann
Jay H. Topkis
Martin P. Unger

SEPARATION OF POWERS: JUDICIAL INDEPENDENCE

(Sam J. Ervin, Jr.*)

I

THE HISTORICAL PERSPECTIVE

When the Founding Fathers gathered in Philadelphia in 1787 to draft the United States Constitution, the concept of separation of powers was a fundamental political maxim which dominated the thinking of many of the members of the Constitutional Convention. A substantial number of the draftsmen arrived predisposed toward creating a government separated into three co-equal branchesthe executive, the legislative, and the judicial.

The separation of powers doctrine grew out of centuries of political and philosophical development. Its origins can be traced to the fourth century B.C. when Aristotle, in his treatise entitled Politics, described three agencies of government: the general assembly, the public officials, and the judiciary.1 In republican Rome, there was a somewhat similar system consisting of public assemblies, the senate, and the public officials, all operating on a principle of checks and balances. Following the fall of the Roman Empire, Europe became fragmented into nationstates, and from the end of the Middle Ages until the eighteenth century the dominant governmental structure consisted of a concentrated power residing in hereditary rulers, the sole exception being the development of the English Parliament in the seventeenth century.3 With the birth of Parliament, the theory of three branches of government reappeared, this time embodies in John Locke's Two Treatises of Government (1689), where these three powers were defined as "legislative," "executive,” and “federative.” 4 Locke, however, did not consider the three branches to be co-equal, nor were they designed to operate independently.5 Locke considered the legislative branch to be supreme, while the executive and federative functions-internal and external affairs, respectivelywere left within the control of the monarch, a scheme which obviously corresponded with the dual form of government prevailing in England at the time, the Parliament and the King. 6

The doctrine was refined and expanded by Baron de Montesquieu, whose Spirit of the Laws appeared in 1748 and was well known to many members of the Constitutional Convention. The Frenchman based his theory on his understanding of the English system, which, since the time of Locke, had generated a more independent judiciary and a tendency toward a greater distinction among the three branches. In discussing the importance of clear delineations of power among the three branches, Montesquieu wrote:

When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical

manner.

*United States Senator from North Carolina.

1 ARISTOTLE, POLITICS, book IV, ch. 14. See generally Robinson, The Division of Governmental Power in Ancient Greece, 18 POL. Sci. Q. 614 (1903). 2 J. BRYCE, MODERN DEMOCRACIES 391 (1921). 3 See generally Fairlie, The Separation of Powers, 21 Mich. L. REV. 393 (1922). 4 J. LOCKE, TREATISE OF CIVIL GOVERNMENT AND LETTER CONCERNING TOLERATION 97-99 (Sherman ed. 1937).

5 Id.
6 Fairlie, supra note 3, at 396.

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