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...... Plimpton, Francis T. P., attorney, Debevoise, Plimpton, Lyons & Gates, Page 77 16 171 181 4 301 16 79 79 281 Rutgers Law Review, "Courts Judicial Responsibility-Statutory and 286 14 Shaffer, Thomas L., dean, Notre Dame Law School, Notre Dame, Ind., "Federal Impeachments," (concluded) University of Pennsylvania Law Review, vol. 64, p. 803 (1916)_ Simpson, Alex, Jr., "Federal Impeachments," University of Pennsylvania Stolz, Preble, "Disciplining Federal Judges: Is Impeachment Hopeless?" 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 81 200 312 325 217 262 82 166 224 241 252 RECONFIRMATION OF FEDERAL JUDGES FRIDAY, MAY 19, 1973 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh presiding. Present: Senator Bayh (presiding). 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 CONSTITUTIONAL AMENDMENTS 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) lawyers become federal judges. By exercising our power to refuse to advise and consent to unqualified judicial nominees, the Senate has raised the overall level of competence of our judges. Indeed, it seems to me that by allowing only the best qualified persons-in terms of professional competence and integrity-to reach the federal bench, the Senate can eliminate a substantial portion of existing discontent with the judiciary. For highly qualified judges can be counted on to follow precedent, law, and reason carefully and faithfully. Perhaps I should indicate the reasons for my deep concern about requiring reconfirmation of federal judges. Since the beginning of our Nation, the independence of the judiciary from the vagaries of politics has been a cornerstone of our constitutional democracy. S.J. Res. 106, I fear, would undermine that independence. For no Federal judge facing a difficult, controversial or emotional case could ever forget that his decision might he held against him when his nomination for reconfirmation came before the Senate. Subtle or blatant, the views of the Senate, particularly of the Senators from the State in which the judge sat, would come into the picture. And to that extent, the fearless, impartial decision-making we so justly prize in federal judges, would be lost. Alexander Hamilton, writing as "Publius" in The Federalist No. 78 more than 184 years ago, defended Article III's grant of life tenure this way: That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensible 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. Hamilton's remarks seem as apt today as they were in 1788. Federal judges are called to decide both the most serious questions of the government's power under the Constitution-as the Supreme Court is now considering the power of the government to put a man to death-and the most ordinary case of completely private rights-a simple contract dispute, for example. No matter what the issue, however, the best guarantee of impartial justice which man has devised is security for the decision-maker from the political consequences of his decision. My good friend and colleague Senator Sam Ervin spoke to this point in a slightly different context when he said: To my mind, an independent judiciary is perhaps the most essential characteristic of a free society. From long experience as a practicing attorney, a trial judge, an appellate judge, and now a legislator, I have had an ample opportunity to observe and appreciate the safeguards embodied in the separation of powers doctrine so wisely formulated by our forefathers. There are times, of course, when those of us in Congress, as well as other citizens, disagree with a judicial decision, and think that public policy ought to take a different track. But it does not follow from this that we should tamper with the independence of the federal judges who made the unpopular decision. For there are many other ways for us to alter Supreme Court decisions with which we disagree. If the case was decided on statutory grounds, for example, the Congress need only pass new legislation to change the decision. Even if the case rested on constitutional grounds, there are still many situations in which Congress can act by legislation to obviate legitimate objections to the decision. Moreover, the Court can be, and sometimes has been, persuaded to change its own decision, when in light of circumstance of better argument it is proper to do so. Finally, a constitutional decision can ultimately be altered by the Congress and the States, or by the people themselves, by amending the Constitution pursuant to Article V. Of course, we cannot and should not amend the Constitution to deal with temporary problems or at a time when emotion or politics might cloud reason. Nor should we amend the Constitution until the course of Supreme Court decisions on the point in question is clear, and a substantial consensus of informed opinion has grown over a period of time that it is necessary to do so. We must study carefully and dispassionately all proposed changes in our Nation's most fundamental document, as we will study the proposal before us today. But, on occasion, the Constitution must be amended to overcome judicial decisions: we did so in 1795 with the 11th Amendment (prohibiting federal courts from hearing suits by a citizen of one State against another State); we did so in 1913 with the 16th Amendment (granting Congress the power to lay and collect income taxes); and I hope we will do so in 1972 by ratifying the proposed 27th Amendment, the Equal Rights Amendment. There is one final point to mention. Without the guarantee of life tenure, there is a distinct possibility that men and women of the highest integrity and legal ability, the very persons we must have on the federal bench in these turbulent times, would not be willing to make the sacrifices involved in becoming a judge. For all these reasons I am currently concerned about the provisions of S.J. Res. 106. It seems to me that the proposal asks the American people to sacrifice the very real values of judicial independence and to risk politicization of the judiciary, without guaranteeing us any significant improvement in the court system. Before we begin the hearing let me share with you a story, arguably in point, found in Madison's record of the Debates of the Constitutional Convention of 1787. The delegates were discussing the way in which judges should be selected. Dr. Benjamin Franklin took the floor to stress that the mode of selection was "a point of great moment." He proceeded to tell his colleagues, according to Madison's Debates, about what he claimed was the "Scotch" method of selection. In Scotland, Dr. Franklin said, "the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves." I should add that the three plans the delegates were debating-presented by Randolph of Virginia, Pinckney of South Carolina, and Hamilton of New Yorkdiffered as to the method of the appointment of judges, but were in unanimous agreement on the necessity for life tenure during good behavior. We are here today to discuss whether that judgment of our founding fathers ought now be reversed. Senator BAYH. Staff research on the history of the issue before us brought to light an interesting story I want to share with you. At the time our Founding Fathers were in Philadelphia debating the very matter we now have before us—namely, the means by which Federal judges, members of the Federal judiciary, should be chosen and the term for which they should serve there were three basic plans before them. One was presented by Delegate Randolph of Virginia, and the others by Delegate Pinckney of South Carolina and Delegate Hamilton of New York. As I recall, the original draft of the Constitution provided for the selection of judges to be made by the U.S. Senate alone, In any event, "Madison's Debates" tells us of a speech by the good Dr. Benjamin Franklin. Now this story may or may not be true, but at least it is. appropriately recorded in the "Madison's Debates." As the delegates were discussing the ways in which the choice of judges should be made, the good Dr. Franklin took the floor and stressed that this debate was "a point of great moment." He proceeded to tell his colleagues that he had another method that could perhaps be used, called the "Scotch" method of selection. In Scotland, Franklin said, "the nomination proceeded from the Lawyers who always selected the ablest of the profession in order to get rid of him and share his practice among themselves." As I said, there were three plans that the delegates were debating at that time, presented by Delegates Randolph, Pinckney and Hamilton. These plans each contained a different method for the appointment of judges, but the plans were in unanimous agreement on the necessity of life tenure during good behavior. Our purpose for being here today is to discuss whether that judgment of our Founding Fathers ought to be reversed. I would like to insert a memorandum from the Library of Congress on the "Tenure of Federal Judges." [The information referred to follows:] THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., April 17, 1972. To: Senate Constitutional Amendments Subcommittee, Attention: Michael Helfer. From: American Law Division. Subject: Tenure of Federal Judges. This is in response to your inquiry and our conversation regarding the proposed limitation of the terms of federal judges as set out under S.J. Res. 106. Presently, U.S. District Court Judges, Circuit Court of Appeals Judges, and Supreme Court Judges (the judges of the so-called Article III Courts) are appointed under the provisions of Article II, § 2 of the U.S. Constitution: "The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Article III judges are said to have life tenure since, according to Article III, SI: "The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behavior, and shall at stated Times, receive for their Services, a Compensation, which shall not diminish during their Continuance in Office." Article III judges are subject to removal from office under the provision of Article III, § 4: "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes, and Misdemeanors." Any change in the tenure provision "during good Behavior" would require a Constitutional Amendment. There are pending before the 92nd Congress at least 15 resolutions proposing Constitutional Amendments of one sort or another which would affect either the manner in which federal judges and/or Supreme Court judges are selected or limit the length of their terms. Those resolutions are as follows: 1. S.J. Res. 106-Provides for 8 year terms for Supreme and inferior court judges. 2. H.J. Res. 38-Provides for 10 year terms for Supreme Court Judges. 3. H.J. Res. 82-Provides for 8 year terms for Supreme and inferior court judges. 4. H.J. Res. 153-Provides for 6 year terms for Article III judges. 5. H.J. Res. 186-Provides for 10 year terms for Supreme and inferior court judges. 6. H.J. Res. 286-Provides for 10 year terms of Supreme and inferior court judges. 7. H.J. Res. 436-Allows Congress to provide for the manner of selection and terms of lower court federal judges. (H.R. 10763)-(Provides for the expiration of present terms and 6 year election of judges thereafter pursuant to H.J. Res. 426.) 8. H.J. Res. 499-Provides for 10 year terms of Supreme and inferior court judges. 9. H.J. Res. 699-Provides for 10 year terms of Supreme and inferior court judges. 10. H.J. Res. 749-Provides for 7 year terms of Supreme and inferior court judges. 11. H.J. Res. 1059-Provides for 6 year elected term of lower court judges. 12. H.J. Res. 1077-Provides for 6 year terms of Supreme and inferior court judges. 13. H.J. Res. 1120-Provides for 10 year terms subject to 5 year approval by voters for Supreme and inferior court judges. 14. H.J. Res. 1121-Provides for voter approval after 12 years for district court judges. 15. H.J. Res. 1140-Provides for 10 year terms of Supreme and inferior court judges. |
