the nature of the charge in time to prepare to meet it; and (b) the judge with the aid of counsel, must be granted an opportunity fully to present his contentions to an unbiased tribunal.

E. Desirable Features of an Improved Alternative

Several states provide methods for removal of judges within the judiciary.40 Experience in operating these state procedures suggests several other desirable features for an alternative method of removal for misbehavior.

For instance, one body should be empowered to investigate complaints and initiate charges; that body should have continuity. New York's Court on the Judiciary may be convened at the request of the chief judge of the court of appeals, the governor, the legislature, or a committee of the bar.41 Though this court has been in existence since 1948 it has only been convened three times.42 California's Commission on Judicial Qualifications investigates complaints, prefers charges, and sits as a continuing body.43 For the period January 1, 1964 to December 31, 1965, action of the Commission caused the resignation or retirement of ten judges."4 One can conclude that unless a continuing body is given sole responsibility for investigating complaints and initiating charges, the result will be only a slight improvement over a system limited to removal by legislative impeachment. Such a continuing body would have an additional advantage in that it could acquire skill in investigating misbehavior charges. This skill is a necessity in the light of another desirable feature-privacy.

The complaints to, and proceedings of, the investigating and charging body should be private in order to increase public confidence in, and respect for, the judiciary. If dissatisfied litigants are allowed to make the investigating body into a forum for public attacks on judges, the alternative method could severely injure the judiciary's public image. Experience shows that the public may believe even a groundless accusation if repeated often enough. Furthermore, privacy provisions would permit a lawyer to make complaints about a judge's conduct when otherwise he might hesitate through fear of alienating a judge before whom he must practice.45 California provides that the proceedings of its investigating body shall be private until that body decides that removal is appropriate.46 The body then makes a recommendation for removal to the California Supreme Court which conducts a public trial.47 The privacy provision insures that only well-grounded complaints will be made public. On the other hand, there should be a provision for final judgment only after public trial to insure that the provision for privacy will not cause the judge's removal in a secret Star Chamber proceeding.

In addition, the court vested with final power to remove should also be vested with power to suspend pending the outcome of the proceedings. California made no express provision for suspension, but the state attorney general has ruled that the supreme court could suspend a judge whose removal had been recommended.48 The utility of a suspension provision is obvious. There may be a delay between the initiation of judicial proceedings and final judgment concerning fitness, and litigants should not be forced to try their cases before a judge whose position is in doubt.

The presently constituted judicial councils of the circuits should be empowered to investigate complaints of judicial misbehavior, to hold a hearing on the comF. Suggestions

In light of the discussion of present federal procedures, requirements of the Constitution and desirable features of state procedures, the following suggestions are made for consideration in drafting a statute to provide an improved alternative method for promoting the honesty and efficiency of inferior court federal judges.

40 Several states have procedures whereby judges may be removed by the judiciary for misbehavior or disability; ALA. CONST. art. 7, § 176; CAL. CONST. art. 6, § 10(b); ILL. CONST. art. 6, § 18; IND. CONST. art. 7, § 12; IOWA CODE ANN. §§ 605.26, 605.27, 605.28 (1949); N. Y. CONST. art. 6, § 22; OHIO REV. CODE ANN. §2701.11 (Baldwin 1964); ORE. CONST. art. 7, § 6, ORE. REV. STAT. § 1.310 (1965); TEX. CONST. art. 5, § 1-a. Other states have procedures whereby judges may be removed by the judiciary for misbehavior alone: LA. CONST. art. 9, §§ 4, 5; NEB. CONST. art. 3, § 17.

Still other states have procedures whereby judges may be removed by the judiciary for disability alone: ALASKA CONST. art. 4, § 10; COLO. CONST. art. 6, § 23; CONN. GEN. STAT. REV. § 51-49 (1958); HAWAII CONST. art. 5, § 4; MINN. STAT. ANN. § 490.04 (1958); MO. CONST. art. 5, § 27; UTAH CODE ANN. §§ 49-7-3, 49-7-4 (1953).

41 N.Y. CONST. art. 6, § 22.

42 Frankel, Judicial Discipline and Removal, 44 TEXAS L. REV. 1117, 1125 n.32 (1966).

43 CAL. CONST. art. 6, § 10(b); Frankel, supra note 42, at 1128:

44 Frankel, supra note 42, at 1129.

45 Note, 41 N.Y.U.L. REV. 149, 179 (1966).

46 CAL. CONST. art. 6, § 10(b).

47 CAL. CONST. art. 6, § 10(6),

48 41 OPS. ATT'Y GEN. 140 (1963).

plaint, and to censure or recommend to the chief justice the removal of judges within the circuit. The judicial councils are particularly appropriate for this task since they meet regularly and carry out supervisory functions.49 The provision for censure allows the council to proceed though it feels that the judge's misbehavior is not so severe as to require removal.

All proceedings before the judicial council should be confidential. This provision will protect the acquitted judge and the complaining party.

The judicial council should make a recommendation of removal to the chief justice, who would be empowered to suspend the accused judge. The chief justice would then appoint a previously uninvolved party to act as formal plaintiff 50 and would order the judicial council of another circuit to hold a trial de novo. This body would have the power to reverse, modify, or affirm the original council's decision. The trial would be public and would be presided over by judges who had not been involved in the investigation. The judicial council of another circuit appears the best body to conduct the trial, since the only other judicial body currently exercising a supervisory role, the Judicial Conference of the United States, would be unwieldy.51

The court should apply the “good behavior" standard of article III, section 1 of the Constitution in determining whether disciplinary action is necessary. Such a standard in effect would place in the judiciary the sole power to determine grounds for removal and censure. This power is consonant with judicial independence and would avoid an enumeration of grounds which inevitably would fail to be complete. The formal plaintiff should have the burden of proving by a preponderance of the evidence that the judge has violated the good behavior standard. The preponderance of evidence burden is thought more appropriate than the "beyond a reasonable doubt" burden because of the non-criminal nature of the hearing and the higher behaviorial standards to which judges are expected to conform.52 Appeal from the second judicial council's decision should lie to to the Supreme Court. Appellate jurisdiction in the Supreme Court would further guarantee the fairness of the procedure and make certain that case law would develop a uniform definition of the good behavior standard.

The final order should extend no further than removal from office and disqualification to hold office. However, the removed judge should remain subject to punishment for his indictable offenses.

For the purposes of this statute, the Customs Court, the Court of Claims, and the Court of Customs and Patent Appeals should be included within the circuit of the Court of Appeals for the District of Columbia,

III. THE DISABLED JUDGE

A. Inadequacy of Impeachment

The disabled judge presents a different, though no less serious, problem than the misbehaving judge. A judge may fail to perform efficiently because of physical or mental disability or simply because he is senile; yet the disabled judge cannot be removed by impeachment.53

B. Presently Available Alternative

Currently there is availabe an alternative method of dealing with a disabled judge: 54 either a majority of the judicial council of the circuit (if the judge is a circuit or a district judge), or the chief judge or the Chief Justice of the Supreme Court (if the judge sits on the Customs Court, Court of Claims, or Court of Customs and Patent Appeals) may certify the judge's disability to the President

49 28 U.S.C. § 332 (1964).

50 The Chief Justice might appoint the attorney general or the solicitor general. Since these members of the executive branch would be acting at the instance of the Chief Justice, their action would not be called an interference by the executive branch in the affairs of the judicial branch.

51 28 U.S.C. § 331 (1964). The Judicial Conference consists of 25 judges.

52 See ABA, CANONS OF JUDICIAL ETHICS (1924). Canon 4 provides: "A judge's official conduct should be free from impropriety and the appearance of impropriety. . and his personal behavior . . . should be beyond reproach." Moreover such a standard will avoid problems which might occur if the court applied the beyond-reasonable-doubt burden. The removing judicial tribunal might be satisfied that a preponderance of the evidence established need for removal, but a subsequent jury would not be satisfied beyond a reasonable doubt that the judge's behavior was criminal. The removed but subsequently acquitted judge could not validly ask for reinstatement because of the difference in burden of proof requirements. For obvious reasons the same considerations are not applicable to the removal of a disabled judge. See note 70 infra and accompanying text.

53 Impeachment lies only for treason, bribery, high crimes and misdemeanors. U.S. CONST. art. 2, §4. 54 28 U.S.C. §372(b) (1964).

The President may then appoint another judge to the court on which the dis`abled judge sits. The disabled judge remains in office and receives the salary of his office, but loses his seniority.

The provision places the responsibility for taking action on judges who are closest to the disabled judge.55 These judges are naturally hesitant to take such a step, and the provision has apparently been used only once and then at the request of the district judge.56 Furthermore, the provision does not spell out the method whereby the responsible judges are to determine the degree of disability. There is no requirement for a hearing or for examination by a physician. A final difficulty is that Justices of the Supreme Court are not subject to this provision.57 C. Constitutional Question

As stated above, it appears that the express provision for removal of judges by impeachment and conviction may not prevent a procedure whereby the judiciary itself removes judges who misbehave. The provision for good behavior tenure indicates, however, that a judge can never be removed for physical or mental disability, since this disability occurs through no fault of his own.58 It seems agreed that disabled Justices of the Supreme Court cannot constitutionally be removed.59 There is, however, substantial basis for the view 60 that the Constitution permits a judicial body to remove a disabled inferior court judge so long as the judge's salary is continued.

61

An increasingly expansive interpretation of the protections afforded by due process may require the removal of disabled judges.62 Due process of law demands that litigants in the courts have a fair trial, but it is doubtful that a mentally disabled judge could assure this. Further, though appeal is available, the time and expense of this method are two practical reasons why the possibility of appellate correction probably would not cure the due process defect of such a trial. One writer has suggested that it may be a denial of due process even to assign a disabled judge to a case, if there is knowledge that the judge is not capable of conducting a fair trial.64

Moreover, the concept of the "public well-being" indicates that there are historical precedents for removal of the disabled judge. In England, office holders with good behavior patents were appraently subject to a prerogative 65 of the sovereign to remove where governmental convenience required, if the sovereign did not take away the emoluments of office. In the United States public offices generally may be abolished with the consequent removal of the office holders where the "well-being of the public" demands.66

In light of this principle and the requisites of due process it would seem that the prerogative to remove a disabled judge, based upon considerations of public wellbeing, would be lodged somewhere in the sovereign and the only question is the location of that prerogative. The doctrine of separation of powers would prevent its location in the executive or the legislature, but not in the judiciary.

Under the above constitutional theory, when a judge is disabled so that he cannot perform the duties of his office, the judge is subject to removal by judicial proceeding if the proceeding does not take away the emoluments of office. Thus a mandatory retirement statute in which Congress set the retirement age would not be a constitutional solution to the problem since Congress has no power to remove

55 Hearings Before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. 9 (1966). 56 Id. at 10.

$728 U.S.C. §372(b) (1964), says "judge who is eligible to retire under this section. ." If Supreme Court Justices had been intended to be amenable to this provision, the words would have been "judges or justices who. "

Compare 28 U.S.C. §371 (1964).

58 Hamilton seems to have thought that this was the case. "The want of a provision for removing the judges on account of inability has been the subject of complaint. But such provision would. be more liable to abuse than calculated to answer any good purpose." THE FEDERALIST No. 79, at 493 (Lodge ed. 1888) (Hamilton). Yet Hamilton's view was ambiguous for he continues ". insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification." Ibid.

50 Major, Why Not Mandatory Retirement for Federal Judges?, 52 A.B.A.J. 29 (1966).

60 Shartel, supra note 23; Comment, 13 U.C.L.A.L. Rev. 1385 (1966).

61 Escobedo v. Illinois, 378 U.S. 478 (1964): Gideon v. Wainwright, 372 U.S. 355 (1963). Though these cases involved the right to counsel under the sixth amendment, due process requires that criminal cases be tried in accordance with the specifications of the fifth and sixth amendments. Corwin, The Constitution and What it Means Today 170 (10th ed. 1948).

62 Comment, supra note 60.

63 In re Murchison, 349 U.S. 133 (1955).

€4 Comment, supra note 60.

65 Walter, C.B. of the Exchequer, 6 Foss, Judges of England 210 (1966); and Archer,' C.J. of the Common Pleas, 7 id. at 51-53.

65 Crenshaw v. United States, 134 U.S. 99, 104 (1890). Twice Congress has debated the question whether, under the Constitution, Congress had power to abolish judgeship when it abolished the inferior courts to which these judgeships belonged. 11 Annals of Cong. 510-986 (1802): 48 Cong. Rec. 7992-8002 (1912). This question, however, is to be distinguished from the question involved here-whether, under the Constitution, the judiciary could be empowered to remove disabled judges.

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a judge for disability. On the other hand, under this theory, Congress could empower the Supreme Court to set a mandatory retirement age for judges. Whether such a mandatory retirement statute would be a satisfactory solution is another question.67

D. Constitutional Requirements and Desirable Features of an Improved Alternative As with removal for misbehavior the Constitution requires that the procedure for disability removal be entirely within the judicial branch and grant the judge a fair hearings. The procedure would, of course, allow the parties to produce medical evidence at the hearing. A judge removed in this fashion could not be deprived of his salary.68 In addition, the features of privacy, the power to suspend, and a single continuous body for investigation are desirable.69 To avoid the appearance of a criminal proceeding, privacy should be extended to cover the entire procedure, unless the judge himself requests a public trial. Experience with the present disability provision indicates that the power to initiate the procedure for disability removal should be placed in a body of judges other than those judges closest to the disabled individual.

E. Suggestions

In light of the above discussion, the following suggestions are made for consideration in the drafting of a statute to replace the current statute dealing with the disabled judge.

The Chief Justice should be empowered to appoint judges to a commission which could initiate a proceeding of the judicial council of the circuit in which the judge sits to remove a judge who becomes permanently disabled from performing his duties. Specific provision should be made that a judge cannot be removed for disability unless competent medical testimony establishes, beyond a reasonable doubt, that the judge is permanently disabled from performing his duties.70 The judge's salary should continue after disability removal.

In addition to removal, the council and court should be empowered to retire the disabled judge from regular active service, but with the proviso that he be permitted to remain available for appointment to hear occasional cases." All proceedings for disability removal, including those before the courts as well as the council should be private, unless at a certain stage the judge should request public trial. In all other respects the procedure should be the same as the procedure suggested above by which a judge is removed for misbehavior.

IV. CONCLUSION

Impeachment is an inappropriate method for dealing with the removal and discipline of judges who misbehave. It also cannot be used to remove mentally or physically disabled judges. Yet in a system as large and as industrious as the federal judiciary the need to insure that the judges are honest, efficient and competent is obvious. The problem is not new. Statutory alternatives have been proposed to promote judicial honesty and efficiency and to treat the physically or mentally disabled judge. These alternative methods, however, have not proved effective.

Though the question has never been decided by the courts and is not free from doubt, there is a good basis for the view that the Constitution allows statutory procedures whereby the judiciary itself could deal with both the misbehaving and disabled judge. Any such alternative statutory procedure, however, must take into account the requirements of the Constitution and should take into account the experiences of the states which have such procedures.

67 It is submitted that such a mandatory retirement statute would not be a satisfactory solution since it is difficult to set an age which would be right for every judge. Justice Holmes was still alert at 85. On the other hand, judges, like other humans, are likely to be incapacitated from causes other than old age.

68 Evans v. Gore, 253 U.S. 245, 252-55 (1920). In holding that a judge holding good behavior tenure was not subject to income tax on his salary the Court said: "the primary purpose of the prohibition against diminution [of salary] was not to benefit the judges, but ... to promote... independence.. Such being its purpose, it is to be construed... not restrictively, but in accord with its spirit and the principle on which it proceeds.'

69 Cal. Const. art 6, § 10(b), is available to handle the disabled judge, too.

70 In cases of disability, where there is no question of fault, the judge should be given the benefit of the higher standard of proof. See note 52 supra and accompanying text.

71 Compare 28 U.S.C. § 371(b) (1964).

THE FEDERALIST

(By Alexander Hamilton, James Madison, and John Jay)

THE SENATE: APPOINTMENTS AND IMPEACHMENTS

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, then by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny. The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for