RECONFIRMATION OF FEDERAL JUDGES HEARING BEFORE THE SUBCOMMITTEE ON OF THE COMMITTEE ON THE JUDICIARY NINETY-SECOND CONGRESS SECOND SESSION ON S.J. Res. 106 PROPOSING AN AMENDMENT TO THE CONSTITUTION OF YEARS Printed for the use of the Committee on the Judiciary UNIV 21-183 DEC 1975 U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1973 CONTENTS Byrd, Hon. Harry F., Jr., U.S. Senator from Virginia_. Shuford, Paul M., attorney, Wallenstein, Goode, Dobbins, Shuford, Richmond, Va.; president, Bar Association of the City of Richmond, Kurland, Philip B., professor of law, University of Chicago Law School, STATEMENTS SUBMITTED FOR THE RECORD Godwin, Hon. Mills E., Jr., Governor of the Commonwealth of Virginia.. Gray, Mr. Earl Q., attorney, Ardmore, Okla. Kuykendall, J. Sloan, senior partner, Kuykendall, Hall & Whiting, Win- chester, Va.; president of the Virginia Board of Bar Examiners, former president of the Virginia State Bar Segal, Bernard G., senior partner, Schnader, Hamilton, Segal & Lewis, Philadelphia, Pa.; former president of the American Bar Association, president of the American College of Trial Lawyers, chairman of the Bar Association of the City of New York, report of the Federal Courts Committee on a proposed amendment to the Constitution to require reconfirmation of Federal judges every 8 years. (S.J. Res. 106) -- Battisti, Hon. Frank J., "The Independence of the Federal Judiciary," Bennett, Mr. Hubert D., executive secretary, Supreme Court of Virginia, Berger, Raoul, "Impeachment of Judges and 'Good Behavior' Tenure,' the Yale Law Journal, vol. 79, No. 8, p. 1475 (1970). Bickel, Alexander M., professor of law, Yale Law School, New Haven, Conn., letter to Hon. Birch Bayh, May 9, 1972- Byrd, Hon. Harry F., Jr., U.S. Senator from Virginia, letter to Hon. Choper, Jesse, professor of law, school of law, University of California, Berkeley, letter to Hon. Birch Bayh.. Christian, Hon. Winslow, director, National Center for State Courts, Washington, D.C., letter to Hon. Birch Bayh, May 18, 1972- - - - Davis, Robert R., Jr., "The Chandler Incident and Problems of Judicial Removal," Stanford Law Review, vol. 19, p. 448 (1967)--- Elsen, Mr. Sheldon H., Adjunct Professor of Law, Columbia University School of Law, New York, N. Y., letter to Hon. Birch Bayh, May 11, 1972. Ervin, Hon. Sam J., Jr., "Separation of Powers: Judicial Independence" Law and Contemporary Problems- The Federalist, excerpts from Nos. LXV, LXVI, LXXVIII, LXXIX... Frankel, Jack E., "Judicial Discipline and Retirement-the California Gunther, Gerald, professor of law, Stanford Law School, Stanford, Calif,. Kurland, Philip B., "The Constitution and the Tenure of Federal Library of Congress, memorandum on the tenure of Federal judges__. Page 77 16 171 181 4 301 16 79 79 University of 281 286 14 Plimpton, Francis T. P., attorney, Debevoise, Plimpton, Lyons & Gates, Senate Joint Resolution 106. Shaffer, Thomas L., dean, Notre Dame Law School, Notre Dame, Ind., letter to Hon. Birch Bayh, May 19, 1972. Shartell, Burke, "Federal Judges-Appointment, Supervision, and Removal-Some Possibilities Under the Constitution". Michigan Law Review, vol. 28 No. 7, p. 870 (1930) __ Simpson, Alex, Jr., "Federal Impeachments," University of Pennsylvania Stolz, Preble, "Disciplining Federal Judges: Is Impeachment Hopeless?" "Federal Impeachments," (concluded) University of Pennsylvania Law Review, vol. 64, p. 803 (1916) __ Vanderbilt Law Review, "Removal of Federal Judges-Alternatives to Wallace, Leon H., professor of law, Indiana University School of Law, Winters, Glenn R. and Robert E. Allard, "Judicial Selection and Tenure Yankwich, Leon R., "Impeachment of Civil Officers Under the Federal 888 81 200 312 325 217 262 82 166 224 241 252 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, Washington, D.C. Also present: Peter W. Coogan, assistant chief counsel; Michael S. Helfer, assistant counsel; Carol A. Brezina, clerk. Senator BAYH. We will convene our hearing this morning, the primary purpose of which is to study the ramifications, the impact, and the thrust, of Senate Joint Resolution 106, introduced by our distinguished colleague from Virginia, Senator Byrd. I will ask unanimous consent that an introductory statement which I have prepared be put in the record at this point. For the benefit of those who are here and I will not read it in toto. [The statement referred to follows:] STATEMENT OF SENATOR BIRCH BAYH, CHAIRMAN, SENATE SUBCOMMITTEE ON This hearing has been called to consider Senate Joint Resolution 106, which purposes an amendment to the Constitution requiring the reconfirmation of all federal judges after a term of eight years. We are pleased to have with us today the distinguished senior Senator from Virginia, Harry F. Byrd, Jr., who introduced S.J. Res. 106. We are also fortunate to have several outstanding legal scholars as witnesses today; Professor Paul Freund of the Harvard Law School; Mr. Bernard Segal, former President of the American Bar Association: Professor Philip Kurland of the University of Chicago Law School; and Mr. Paul M. Shuford, President of the Richmond Bar Association. Article III of the Constitution provides that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior." S.J. Res. 106 would alter that Article by providing federal judges with only an eight year term, during good behavior. During the final year of each judge's appointment his name would be placed in nomination for another term, and the Senate would be asked whether it wished to advise and consent to the nomination. This procedure, however, would not apply to judges currently on the bench; they would continue to serve under Article III's provisions. I must state, in all candor, that I am not currently persuaded that the proposed change in Article III's provisions is necessary and proper. But my mind is not closed to argument on this or any other issue, and that is why I am looking forward to discussing this proposal with today's very distinguished witnesses. The judiciary today, as in other times, is not completely free from problems which are the legitimate concern of the legislative branch. For a number of years, I have been working on legislation which would require the very highest standards of ethics in our judges, and that battle is not yet won. We are all also concerned with ensuring that only the most highly qualified able, and professional (1) |