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Senator Byrd, we appreciate your bringing this matter to our attention, and, as I think I told you earlier, in all fairness and honesty, I have great reservations about this proposal.

Senator Byrd. I am under no illusions in that respect, Mr. Chairman.

Senator Bayn. But I am equally dedicated to the principle that any such proposal should receive a thorough and objective study without those of us who are in charge of the proceedings having a completely closed mind on the subject.

Our leadoff witness—and it is a privilege to have you with us this morning—is our colleague Senator Byrd.

Senator Byrd. Thank you, Mr. Chairman.



Senator Byrd. Gentlemen of the Senate subcommittee. I appreciate the opportunity to appear before you today to discuss my proposal, Senate Joint Resolution, 106, to require that Federal judges be subject to reconfirmation by the Senate every 8 years.

In reading and listening to the able opening remarks of the distinguished chairman, I note that he brought out that when the Constitution was first written that there was unanimous agreement on the necessity of life tenure during good behavior, and the chairman said, **We are here today to discuss whether that judgment of our Founding Fathers ought now to be reversed.” I feel it should be reversed, and I feel that time marches and we need to look forward and not look backward, and I shall attempt this morning to give some reasons why I feel that this decision, made many, many years ago, should be changed now.

Is more and more power is centralized in the Federal Government, we need to appraise more critically the justification for life appointment of Federal judges.

I have had prepared a legal memorandum covering many of the points of law involved in the issue of judicial tenure. I believe it will be of interest and assistance to the subcommittee. I request, Mr. Chairman, that this memorandum be included in the record of this hearing at the conclusion of my testimony.

And, if the chairman would permit, I would like for it to be at the conclusion of all of the other insertions that I would ask the committee to include in the hearing record.

Senator BAYH. We will ask unanimous consent at this time to include all of the material that the Senator from Virginia desires to have included in the record in the order in which he prefers.

Senator BYRD. I thank the chairman.

At the outset, let me state that I fully realize the complexity of the problems involved in this issue.

I doubt that any proposed solution could be devised that would be endorsed by all. The questions involved are both basic and complex: Basic, in that they involve fundamental issues; complex, in that they have many ramifications.

It is a most difficult undertaking to seek to strike a reasonable balance between the principle of judicial independence and the principle of the accountability of public officials.

Nevertheless, I think the effort is worth making. There is widespread dissatisfaction with the existing system under which some judges are exercising dictatorial powers. I believe that a full and open discussion of the questions involved will be healthy and valuable. This hearing provides one opportunity for such discussion, and should the constitutional amendment I have proposed be acted upon favorably by the committee, the ensuing debate in the Senate and House will help to direct additional public attention to what I believe is one of the most serious problems in our democracy today.

Finally, of course, should the Congress approve the amendment, the forum of debate would be opened in the 50 State legislative bodies, and a true sounding of the feelings and opinions of the people would be possible. Regardless of the ultimate outcome of this national debate, I believe that it would encourage thoughtful scrutiny of the whole question of the proper role of the judiciary in a modern Nation committed to the principles of separation of powers and checks and balances.

Let me begin this discussion by outlining what my proposed amendment would do, and what it would not do.

I want to emphasize at the outset that I fully support the concept of an independent judiciary. The amendment I have introduced simply provides a method by which the courts might be made more accountable to the people.

The philosophy of this proposal I am making was perhaps best expressed by Thomas Jefferson, when he said:

In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Senator Bayi. Senator, momentarily, would you yield?
Senator BYRD. I will be glad to yield at this point.

Senator Bays. That is a famous Jefferson quote, and he is a native Virginian, and he has always been a hero of mine. Does the Senator have a direct quotation relative to Mr. Jefferson's opinion as to the necessity for the independence of the judiciary?

As I recall, the particular quotation you have read dealt with the people's relationship with the Government, with a big G. It could be inferred, I suppose, that he intended those words to apply to judiciary as well, but I just wondered.

Senator BYRD. Well, I would interpret it perhaps more broadly than first propounded by the chairman. I would think it would deal with all questions of power, and, certainly, the Federal judiciary is one of the great powers and a far greater power is possessed by it today than ever it did possess in the days of Jefferson or Randolph or Hamilton.

Senator BAYH. Please proceed.

Senator BYRD. My amendment provides that Federal judges serve in office for a term of 8 years, at the end of which term they would be automatically nominated for reconfirmation by the Senate, unless they requested otherwise. If reconfirmed by the Senate, the judges would serve for an additional 8 years.

If the political party should change, that would not affect automatic referral to the Senate for reconfirmation procedure. So, I want to emphasize that the fact that the executive branch of the Government may have changed hands politically would not adversely affect any judge in having his name submitted to the Senate for reconfirmation.

During the period of consideration by the Senate as to whether or not to give its advice and consent to the reconfirmation of any judge, that judge would continue in office. Moreover, his new, 8-year term of office would commence from the day after the date that the Senate approved the reconfirmation or from the day after the expiration of his earlier term, whichever date is later.

The amendment would not affect any judge sitting prior to its ratification.

Incidentally, one Member of the Senate came to see me yesterday and said that he favors this proposal but would like to see it applied to existing judges. But my amendment was not so applied.

In separate legislation not requiring a change in the Constitution, I propose that if a judge were not reconfirmed he would be retired at full pay. This would protect the financial independence of the judiciary. And I might say, from the reaction that I perceive from the public, the reaction has been highly favorable insofar as the constitutional amendment is concerned on limiting tenure but it has been highly critical of guaranteeing the judges' financial independence by statute should they not be reconfirmed.

This, then, is the basic mechanism which I am suggesting.

The question arises at once: Is this a radical proposal, out of keeping with American tradition, or is it rather a reasonable means of achieving accountability of judges without destroying their basic independence? I submit that it is the latter.

In the first place, the facts show that 47 out of 50 States—47 out of 50 States now have fixed tenure for their own judiciary. Only Massachusetts, Rhode Island, and New Hampshire now provide life tenure for State judges.

It is interesting to observe that the present arrangements in the States are largely the result of changes based on experience. Most of the original States provided life tenure for judges, and the trend toward fixed terms did not make great headway until well into the 19th century. As late as the 1820's, 19 of the then 24 States still maintained life terms.

So the present condition, with only three States retaining the life tenure system, is the result of a fairly modern development.

The experience of Virginia may be of significance. Originally the State constitution provided for life tenure. In 1850, a revised constitution established the practice of popular election of judges. Twenty years later, Virginia converted to the present method of election by the general assembly for specific terms of years.

The present Virginia system, which is directly parallel to the method which I have proposed for the Federal judiciary, has worked well. Even though elected by the.general assembly, the Virginia judi

ciary never has hesitated to assert its independence. The Virginia Supreme Court has exercised its long-established power to strike down legislative enactments.

I have, Mr. Chairman, a letter from the executive secretary of the Supreme Court of Virginia which I would like to read into the record at this point.

DEAR SENATOR BYRD: This is a reply to an inquiry from your office concerning whether or not any elected member of the Supreme Court of Virginia, in recent years, has been defeated when his name was presented to the general assembly for reelection.

I have thought about the matter, and I cannot recall, within the last 40 years, that any elected member of the court has not been reelected when his term expired. There has been, to my knowledge, one instance when a judge who was given an interim appointment to the supreme court was defeated in his bid for election. This was the case when Hon. Stafford Whittle was elected about 1900.

I hope this information will be of some value to you. If I can help in any other way, please let me know.

With kind personal regards and best wishes, Sincerely, Hubert-Hubert D. Bennett. . · The experience of Virginia indicates that any fears of lack of independence on the part of judges who are subject to legislative reconfirmation are without foundation.

Indeed, I know of no documented assertion that the independence or integrity of the judiciary has been compromised in any of the States as a result of fixed tenure. If the committee has such evidence, I would hope it would make it a part of the record of these hearings. [The letter follows:]


Richmond, Va., May 15, 1972. Senator IIARRY BYRD, Jr., old Senate Office Building, Washington, D.C.

DEAR SENATOP. BYRD: This is a reply to an inquiry from your office concerning whether or not any elected member of the Supreme Court of Virginia, in recent years, has been defeated when his name was presented to the General Assembly for reelection.

I have thought about the matter, and I cannot recall, within the last forty years, that any elected member of the Court has not been reelected when his term expired. There has been, to my knowledge, one instance when a judge who was given an interim appointment to the Supreme Court was defeated in his bid for election. This was the case when Honorable Stafford Whittle was elected about 1900.

I hope this information will be of some value to you. If I can help in any other way, please let me know. With kind personal regards and best wishes, Sincerely,

HUBERT D. BENNETT. When we stop to think about it, why should any official in a democracy have lifetime tenure? In the modern world, only kings, queens, emperors, maharajahs—the U.S. Federal judges—hold office for life.

It would seem to me that the trend toward fixed tenure in the States is in line with the overall movement in American government toward a more broadly based democracy. Several of the 20th-century amendments to the Constitution have reflected this movement, including the 17th amendment, providing for the direct election of senators; the 19th amendment, guaranteeing the right of women to vote; and the 24th amendment, abolishing the poll tax.

In addition to constitutional amendments, much of the statutory legislation enacted by the Congress in recent years has provided for increased participation by the people in government, notably including the fields of elections and the environment.

Each of these amendments and laws has, to some degree, represented a departure from past practice—not, indeed, a departure from traditional values, because democratic values are the core of our political system—but a change from practices that had become established through the years. If we are to have a broadly based political system, a participatory democracy, if you will, then we must not be afraid of change.

I do not fear change. Most certainly, I do not fear change which is based upon the will of the people.

I think all of the amendments to the Constitution, with the exception of the 18th amendment-prohibition—the putting of prohibition on the individual citizen-I think all of the amendments to the Constitution with that exception have been desirable amendments.

And the able chairman of this committee presented and had enacted a most desirable amendment.

I particularly favor the 17th amendment, providing for the direct election of U.S. Senators, which, Mr. Chairman, was à substantial departure from the original Constitution adopted in order to widen participation in the democratic process.

I think the time has come, Mr. Chairman, to consider another desirable addition; namely, the elimination of life tenure for Federal judges.

I say again: Why should any public official in a democracy have lifetime tenure?

I do not conceive this to be a liberal-versus-conservative issue. Senator Robert M. LaFollette, Sr., of Wisconsin, perhaps one of the leading progressives of this century, in 1920 denounced "the alarming usurpation of power by the Federal courts.” He called for constitutional and statutory changes to end lifetime tenure for Federal judges.

Certainly, I see no reason why the question of lifetime appointment for judges, as opposed to a reasonable system of reconfirmation, should not be submitted to the people of this Nation.

I want to emphasize again that favorable action on my proposal by the committee and by the Congress would do only one thing: it would simply permit the question of a constitutional change to be determined by the general public through their elected representatives in the 50 States.

It is true, of course, that the framers of our Constitution provided for life tenure for judges, conditioned only on good behavior.

But in this as in every case where one considers a change in the Constitution, one must bear in mind that the men who constructed the framework of the Constitution also provided for its repair; they themselves devised a system for amending our basic law. They had that special wisdom which understands the limitations of time and placethe wisdom to know that there was that which they did not know.

It goes without saying that the reason why this hearing is possible, the reason why this very subcommittee exists, is that we have an orderly method for considering improvements in the organic law of the United States.

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