United States becomes the lightning rod, and the Supreme Court of the United States is often blamed for the lightning. One hardly remembers what the State court decided in important and sensitive constitutional issues that have been decided by the Supreme Court of the United States.

Moreover, the election procedures that I have described was seen as a safeguard against the possibility of a tyrannical or disabled judge. Whatever the merits of that system as a modification of a purely elective judiciary, it has little resemblance in purpose or effect to the proposal before the committee. The present proposal would greatly increase the political pressures on Federal judges. It would put their continued tenure in the hands of a small body of legislators judging under inexplicit standards subjected to inappropriate pressures, and injected into the business of lawmaking at just the wrong point. I have spoken mainly of the Supreme Court because I daresay if we had no Supreme Court this proposal would not be advanced for the lower Federal judiciary.

But let me add that, with respect to the district court judges, the problem of reconfirmation would be complicated by the practice of senatorial courtesy; whether his continuance would be at the pleasure of a single Senator from his State, one can only conjecture.

However sparingly the power might be exercised, its very existence jeopardizes the principle of an independent judiciary upon which the rule of law rests. There is no overriding need that would justify this jeopardy. It is to be hoped that the members of the Senate would find the power proposed to be given to them as unwelcome as it is dangerous to our legal order.

Thank you, Mr. Chairman.

Senator BAYH. Professor Freund, I appreciate, as I said earlier, your taking the time to let us have your expertise. You concluded on a note that is rather interesting, but a very practical note. I discussed with my friend from Virginia the way in which the Senate, in its responsibility given in this amendment, would try to provide restraint and accountability. The Senator from Virginia said-and I concur in his judgment-that we should not feel that we necessarily have to agree with specific philosophy or specific decisions of a given judge in order to confirm him in the first place, or reconfirm him in the second place. And I wonder how we, as Members of the Senate, if we were given this responsibility to deal with the problem-the most sensitive of which now is in the education area, as it has been since Brown v. Board of Education-how we could, indeed, resist the tremendous pressure that would be exerted on those to whom we must be accountable to look at specific decisions of a judge whom we were trying to hold accountable?

I guess that is what you mean when you said an "unwelcome power"? Mr. FREUND. Yes; as unwelcome as it would be dangerous. I think it should be distasteful to Members of the Senate to be saddled with this task-distasteful because they will be subjected to enormous political pressures. And there are no standards in which they can take refuge; there is nothing to confine their discretion. We have a sample of the problem, but only in microcosm, in connection with a recess appointment where there is a confirmation hearing later. It is true that there have been occasional recess appointments, but it is also true that that

practice is a very dubious one and a very dangerous one, in my judgment, with respect to the Supreme Court at least.

I recall that in a time of considerable political tension in the country, in the period of President Eisenhower's first term, Justice Brennan-as he then was-received a recess appointment, and when he was nominated and hearings were held, he was subjected to very intense questioning about his views on communism and various ramifications of that issue by a Senator from Wisconsin. It was not one of the Senate's most glorious hours.

How to limit that kind of thing is uncertain.

Senator BAYH. If we talk about a reconfirmation hearing, as I recall sitting

Mr. FREUND. There were cases pending in court, if I may add, on these very issues, and to attempt to separate out questions about views on particular pending cases or particular recent decisions from views of a more general or political nature such as might be asked of an original nominee who had not been on the court that effort to separate, of course, breaks down, and it is very difficult to talk about one's general philosophy without implicating one's views on actual cases pending before a court on which one is sitting.

Senator BAYH. When we are talking about senatorial response to public hue and cry we are not talking about just a response to base political power. For I think there are areas in which men of good faith have very decided differences of opinion. One could feel very strongly in opposition to a series of decisions made by the Supreme Court and thus would be, if you will, dutybound from a philosophical viewpoint, not just from political pressure, to oppose the nominee. How can a judge defend himself in a reconfirmation hearing from questions directed at the details of specific cases that he had already decided? Is it fair to make a distinction between the confirmation of a judge who has not sat on cases and hear him say, as several have, I think wisely, "Well, Senator, I do not think I should answer that question; it deals with the specifics of a case that may come before me?"-is it fair to make a distinction between the position that judge has when he is about to be confirmed and the position he finds himself in when he comes around, say 8 years later after having sat on and decided a number of cases which are then fair game?

Mr. FREUND. I think there is a considerable difference.

The experience of the judge who has served is likely to be that of having a specific record scrutinized. The position of a nominee who has not served on that court is likely to be that he is examined in a much more unfocused, diffuse way. Indeed, as the Senator knows, it was not until Felix Frankfurter was nominated in 1939 that the practice began of inviting the nominee to appear before the committee. Until 1939, with a minor exception in the case of Harlan Stone, who was Attorney General, it was the practice not to have the nominee appear at all before the committee. Of course, statements were submitted on his behalf, questions were answered by spokesmen on his behalf, but the delicacy of the situation then, in that posture, was recognized by not asking the nominee to appear.

Well, we have passed that hurdle, and I am not now arguing one way or the other as to that. But it seems to me a giant step from that to the examination of the judge's record, or even as to his character

istics or attributes on or off the bench in what could be a very tempting political atmosphere. The answer may be that we must have confidence in the Members of the Senate, but, as Thomas Jefferson said in the passage which Senator Byrd quoted, it should not be a question of confidence. The Constitution, itself, should fix the guarantees. We should not be at the hazard of placing confidence in the self-restraint of the Senate, given the political pressures that are bound to exist.

Now, it may be said on the other hand that we do impose confidence in the judiciary under our system. And my answer to that is that the finality of judicial decisions is much less than is superficially presumed. I will not go over my testimony, but I tried to point out the various areas and ways in which even decisions of the Supreme Court can be overcome if there is a very considered, focused, and sufficiently strong movement to do so.

Senator BAYH. In other words, as I recall your testimony, it is your judgment in the particular area such as the commerce clause as a good example of the case-where the Congress, by new legislation, has, in essence, dealt with the problems that were raised by the Supreme Court without even going the constitutional amendment route?

Mr. FREUND. That is entirely right, and I would add that I think the Congress has a great deal of power which lies unexercised in that area, as well as in the Bill of Rights area.

We need not go into the substantive questions, for example, questions of State taxation of interstate commerce, but there have been many studies made in Congress and no comprehensive legislation. I think such legislation would be welcomed by the Supreme Court itself. Even in the Bill of Rights area, in the much controverted Miranda opinion, in at least two passages which have been too little noticed, the majority opinion states that if there are equally effective means other than that which we have indicated, to achieve the same end, namely, to help assure that confessions would be vountary, you are at liberty to adopt such equally effective means. I would like to see much more legislative experimentation in the area of safeguards in the criminal process, and the Supreme Court issued an open invitation to come up with something constructive which may not be the same as the guidelines laid out in the Supreme Court opinion.

Senator BAYH. I noticed that the Supreme Court said "or under any other system that may be devised," so it is almost an invitation to the Congress or the States.

Mr. FREUND. Yes.

Senator BAYн. One last thought, Professor Freund.

You mentioned uncontested election of the State judiciary, and Senator Bvrd stressed the fact that all but three States had requirements for limited tenure. Could you give us a brief summary of your judgment as to which direction the States appear to be going?

Is it toward more accountability or less accountability?

Mr. FREUND. Well, I think they are moving toward a depoliticization of the process. The States I had in mind were California and Missouri, and there may be others, which adopted the practice of the uncontested renewal election, and this was thought to be considerable advance over what had existed before: namely, a political election. It was a compromise between security of tenure on the one hand and

accountability on the other. I think it is very hard to draw parallels. No one is suggesting that the Federal judges be subject to either nationwide election for renewal of their terms, or, in the case of district judges, to statewide elections. That would be a parallel change, but no one is proposing it. I think the placing of the power in the hands of one chamber of the legislature in many ways heightens the politicization of the process because it becomes the subject of sharp division; it becomes the subject of considerable pressures brought to bear on legislators by interested constituents; whereas, in any general election, the issue is probably a fairly diffused one, and the expectation is there will not be any great controversy over renewal of the term. I do not think one can expect that result if you place the function in the hands of a debating body like the Senate and I presume that it would not be advanced unless it were meant to be employed from time to time—and I think it is a mistake to pose the issue as that of a fixed tenure.

I would not be opposed to a fixed tenure of a generous term, either measured by a mandatory retirement age or a maximum length of service. The vice is not the imposition of an end to the term of service short of death or resignation; the vice is in submitting the extension of a short term, a relatively short term, to one chamber of a politically constituted body.

I think all would agree, if you look at desirable lengths of terms, that on the Supreme Court of the United States it requires a considerable period for a justice to come abreast of the work. That is the testimony of all members of the Court past and present; namely, that the work of the Supreme Court is so different in its nature that prior judicial experience is not a very significant advantage to them in learning to cope with the job. It takes a number of years, really, in order for a member of the Supreme Court to feel himself fairly comfortable in coping with these very basic issues. And, therefore, a term or 8 years, nonrenewable, would be much too short. I think a case could be made for a generously longer term, say 15 or 20 years, and certainly a case could be made for a mandatory retirement age at a generous age, whether it be 72 or 75. But that is a wholly different proposition from the necessity of coming before a political body to renew their relatively short term of service.

Senator BAYH. Well, thank you very much, Professor Freund. We really appreciate you taking the time to be with us. Once again you have performed a significant service to our committee.

Our next witness is Mr. Paul Mason Shuford who has been eloquently and appropriately introduced by our colleague from Virginia, Senator Byrd.

Mr. Shuford, we appreciate your taking the time to testify before the committee.

STATEMENT OF PAUL M. SHUFORD, RICHMOND, VA.

Mr. SHUFORD. Mr. Chairman, thank you very much.

I appear before you simply as a practicing attorney, deeply concerned, as I know you are, with the proper administration of justice. I have no novel suggestions to offer, and certainly I am not so fatuous as to believe that I can add to your knowledge or awareness

of the many problems which our country faces in this very critical and delicate area of concern. It is my hope that I may lend some support to the thrust of Senate Joint Resolution 106, a support based primarily on 24 years of the active practice of law and a continuing-and I like to think a sometimes constructive participation in the governmental and political affairs of my native State.

If I may, Senator, from time to time I may depart from my prepared testimony to try to answer a question or questions in areas of discussion brought up by you or the previous witness.

In my view, the establishment and maintenance of a proper and efficient system for the administration of justice is not dependent upon any one concept or class of persons. Certainly it is not something that should be left entirely to lawyers. Notwithstanding that profession's greater involvement in and more intimate knowledge of the many intricacies and subleties of the law. Lawyers have a special rule, obviously, but the overall responsibility is one that must be shared by everyone, particularly those in positions of political leadership and authority. This is especially true in connection with that particular aspect of the problem brought into focus by Senate Joint Resolution

106.

This aspect to which I refer is perhaps best encompassed within the familiar phrase "balance of power," as that phrase is applied to the interaction of authority between the legislative, executive, and judicial branches of Government. Too often, I fear, our concerns with questions related to this "balance of power" are seen as being purely political in nature, a view that regrettably tends to highlight the presumed selfish and partisan elements involved in such concern to the derogation of the more noble elements implicit in expressions of concern for a better administration of justice. Yet the former is essentially and unavoidably intertwined with the latter.

Obviously, "balance" to which I refer does not imply an identity of power but rather a balance which, in the overall context, does most to serve the people. Only in a limited sense can it be said that citizen justice is ultimately dependent upon the courts. Partly from initial governmental concept and partly from development, we have come to accept a certain "ultimacy” in judicial decrees—and in certain limited areas, that is, those pertaining to the protection of certain basic-and I do mean "basic" personal rights such as have been alluded to by reference to the Miranda case, for example, I feel this is both proper and preferable to alternative approaches. My concern, however, is directed at the great and growing evidence that acceptance of a properly limited doctrine of judicial supremacy has been and is being expanded into a doctrine of absolute and unlimited judicial supremacy. To the extent that view controls our affairs, we are necessarily deprived of the free exercise of our "political" rights, rights which, though semantically and practically distinguishable from our "judicial" rights, that is, the personal rights that come up between man and man, are just as essential a part of our total package of "rights" as any category of rights that can be imagined.

Senator BAYH. May I interrupt?

You seem to distinguish here between personal rights and decisions of the courts involving other sorts of rights?

Mr. SHUFORD. I think definitely they are distinguishable, though not by any hard and fast rule. What I am referring to is litigation be