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soul, that Shelley vs. Kraemer, which I think was the prominent case to which you referred a moment ago, or Baker vs. Carr, another landmark case, were very irresponsible, and that, indeed, these decisions gave that court the powers you describe as the supreme law of the land. And suppose that you thought that, by your own testimony, somebody ought to have the right to say: "Judge, maybe you are wrong?”

Now, would you not, as a Member of the Senate, have a responsibility to exercise your influence to see that that representation on the Supreme Court is changed? And would you not, just taking the political thing out of it, have—indeed, are we not giving you the responsibility to take those steps if, in your heart, you feel that that judge acted, by your definition, nonjudicially and moved into the area of legislation?

Mr. SHUFORD. Yes, sir, I think, in broad context, yes, sir. We could discuss this at quite some length, because there are answers that would depend on the issues posed.

For example, would we be complaining to you about a decision of the Supreme Court which reversed a prior constitutional decision? In which case I would base it on one ground, and I think the Senate action in that would not be interfering with the proper independence of the judiciary. In my view, Senate Joint Resolution 106 would not confer power to reverse the decision. If the people want to reverse it, they can reverse it.

If, on the other hand, I simply objected to a landmark decision which was not really reversive of any prior ruling, I think my grounds would be totally pulled out from under me, because I do not envision, because we have not experienced it in Virginia, the Senate of the United States trying to tell the Court what to decide when the matter is properly before it and open to decision without binding precedent on it.

Senator BAYH. You see, you get very close to going back to stare decisis forever. I do not think you want that. I have had a great personal involvement in some confirmation questions-involvements that have been some of the least enjoyable from the standpoint of a feeling, if you will, in my 18 years of legislative experience. But I have been involved in this whole business of confirmation and have seen first hand how it works.

We can go back and look at the confirmation hearings of Mr. Justice Brandeis: In my memory, confirmation battles have covered the spectrum. Criticisms which were directed at Justice Fortas-before some of the ethical questions were brought to light-and there were questions about the most recent nominee, Mr. Justice Rehnquist. I was concerned about some of Justice Rehnquist's positions on some of the basic issues of individual rights. His approach was quite different from that of the distinguished jurist, member of the bar from your State, Mr. Justice Powell with whom he was kept in tandem. It was my contention that these two men would look at the issues differently.

And, if you will look at the way the votes have been cast since then, that has happened in some significant cases. And if, indeed Justice Rehnquist and Justice Powell were to come before me for reconfirmation, I might well have to take the same position again, and do everything I could to see that Mr. Justice Powell was reconfirmed, and because of the deep convictions I have, I might feel responsible to fol

low the same course of action, with great reluctance, relative to Mr. Justice Rehnquist.

Mr. SHUFORD. I would hope, Senator-and maybe it is a fatuous hope I would think and I would hope, sir, that in such an instance, knowing that there is a review of this judge coming up, that he is not there for life, that first there would be a slight lessening of the personal concern with philosophy. In other words, I, personally, have disliked many decisions, but I am not at all of a mood to criticize the judge because he saw things differently, provided he approached them in a judicial manner and did what I think was proper workmanship on the job from the bench. Now, this is a hard line to draw.

Senator BAYH. It is an awfully hard line, and there are degrees of philosophy, and I do not suppose we ought to pursue this. We will be here all afternoon.

Mr. SHUFORD. That is right, sir.

Senator BAYI. But, for example, Louis Powell, I have known for a long time. I knew him when he was president of the American Bar Association, and I suppose both of us, both of us, would agree that in some areas we have significant philosophical differences. But if you look at the way Louis Powell voted on this recent case relative to illegitimate children, and the way Mr. Justice Rehnquist voted in an 8-to-1 decision, I think there you get beyond the place of reasonable differences in philosophy to the place where I am concerned about the way the Justice thinks in terms of some of the basic concepts that go beyond the normal distinction between liberal and conservative or right wing and left wing.

Mr. SHUFORD. I doubt anybody could ever divorce himself from that kind of thought process, Senator. I suggest it is one that must be controlled, and I would hope, having arrived at the position in the United States which to me is an extremely high one, that it can be one which is exercised properly. And I am not talking about, as I say, getting in a situation whereby any judge would be subject to the will of the Representative or Senator from his district; I am talking about the whole body, and when that question comes up before the whole body, the same thing will happen. If there is a serious challenge made to a judge from any source, as happens now in original confirmations, you will find the bar associations, the National, State and local, and many professors such as Professor Freund and Professor Kurland, who are eminent authorities, you will find a host of people that will render support, guidance, and information and come forth to the Senate in trying to keep its deliberations as to what is proper.

Now, going back to this decision you mentioned on which Mr. Justice Powell and Mr. Justice Rehnquist split, I can find logic in both positions. Very frankly, I think in either of them there were legislative answers to that simply by statutory enactment, because the thing involved was something over which there is a great deal of Federal purse control, and these things can be handled in ways by the Senate that would not force the Senate to take out its disagreement on the office itself and say "All right, because we do not like what you decided, we are going to subject you to the possibility of denying confirmation." I think it can be handled in a totally responsible way, and my experience has been that this is true.

Senator BAYH. I was not using that particular case, that one particular case, as being the kind of thing that would necessarily bring a

judge down, but just to show that there are distinguishable differences in philosophy.

Mr. SHUFORD. And all I am saying is that I think it very apt that the Senate, upon reflection on any of these cases, would find the decision was not all that difficult. In other words, I would hope the decision in the Senate in any of these would be on: Has the man acted judiciously? whether I like the philosophy or not. In all but the Supreme Court decisions, they are subject to review, in any event.

Mr. BAYH. Having sat here and listened to some of my distinguished colleagues address themselves to the thrust of Baker v. Carr and Brown v. Board and Miranda and to Justice Marshall and Justice Fortas and the later Justices following, Justices Burger, Blackmun, on both sides, I cannot be sure. This is not trivia. This is a matter of great responsibility. A judge has the responsibility to say "I do not care. If I think this is unconstitutional, I am going to strike it down even though I am coming up 8 years from now."

Mr. SHUFORD. I think he will. I think that we underestimate the Federal judiciary and the Senate if we assume something contrary to that under this proposal.

Now, there are many proposals suggested on the floor of the Senate about which I have read, and which I would be completely opposed to, directed toward disciplining or controlling the judiciary. I am not one of those. I have spent too many years at the practice of law, and I love it, and I do not want to see its proper independence in any way interfered with. I do not think Senate Joint Resolution 106 does it, if I may say so, and my last couple of paragraphs may give you some idea of why I do not think it will be used very much.

Virginia's trial judges are subject to reelection or reconfirmation every 8 years; our appellate judges every 12 years. As a practical matter they enjoy life tenure. But I am convinced that this is due in no small measure to the fact that our judges eschew any legislative prerogatives, and I am equally convinced that many of them, at least, have eschewed such a legislative role primarily because they know they are not forever beyond the reach of the legislature. In other words, it is a psychological thing to me, and a good one. It is part of the system of checks and balances. This Senate and the House of Representatives, repeatedly debates this issue; that is, whether or not they should do a certain thing or whether or not it is beyond their proper role, or function or power. It is an issue which you debate with yourselves, and I think this is something that the judiciary does, and it is something that because there is an obvious limitation upon your power, people are more conscious of it.

In conclusion, I respectfully submit that each branch of Government has an equally important, though different, responsibility to the American people in regard to the preservation and protection of our liberties. When this equality is threatened by any of these branches, it is incumbent upon the other two to restore it, without in any way seeking to establish a superior position on the part of either of them. This I conceive to be the purpose of Senate Joint Resolution 106. I believe this would be its results, if adopted, because I think the psychological impact of knowing a man is not beyond the power of anybody or anything as long as he lives-and that is what we have now-will have a salutary effect on his demeanor, which will reduce the need for the

Senate or any other body to get exercised quite so frequently over some of the decisions that are rendered, and it would leave the activism, the legislative role, to the legislature where it belongs and leave the executive role in the executive where it belongs, and you will have a better, continuing trust. You have controls now to a certain degree over what the President does. They are not final controls. Except by impeachment, you cannot throw him out of office, because only the people can do that. But you have leverage on him. He has leverage on this body. The only one upon which there is no leverage-and which recognizes this terrible responsibility for years through the doctrine of selfrestraint is the judiciary. In my opinion, they have in many instances, far too many lately, begun to ignore the doctrine of self-restraint.

For that reason, I think this is a proper and very limited step in the right direction to apply the possibility of a little leverage to bring them once again in balance with the other two branches of Government, each of which have an equal responsibility to the people of this country to provide for their welfare.

Senator BAYH. Well, thank you very much, Mr. Shuford. I appreciate your taking the time to be with us and explore some differences we have on this. I hope we can call on you again.

Mr. SHUFORD. Thank you, Senator. I appreciate your courtesy, sir. Senator BAYH. We will take about a 2-minute break.

[Short interval.]

Senator BAYH. Our next witness this morning is Prof. Philip B. Kurland, professor of law, University of Chicago Law School; chief consultant, Senate Judiciary Subcommittee on Separation of Powers, of which our distinguished colleague Senator Ervin is chairman.

Professor Kurland has been a consistent counselor to several of the subcommittees of the Judiciary Committee, and we appreciate your taking the time, Senator Kurland-I am sorry for that demotion, Professor Kurland to let us have your thoughts on the subject before us.

STATEMENT OF PHILIP B. KURLAND, PROFESSOR OF LAW, UNIVERSITY OF CHICAGO LAW SCHOOL; CHIEF CONSULTANT TO THE SUBCOMMITTEE ON SEPARATION OF POWERS, SENATE COMMITTEE ON THE JUDICIARY

Mr. KURLAND. I was going to say, Senator, that I was happy for the promotion and that I would readily accept it.

I am grateful to the committee for its invitation to express my views on the proposed amendment to the Constitution that is presented in Senate Joint Resolution 106. With your permission, and in the hope of saving time, I should like first to read a short prepared statement and then to attempt to answer such questions as you may propound to me.

The Resolution being considered here offers a plan-reduction of judical tenure to renewable eight-year terms-that has a lone lineage. Dissatisfaction with particular or general Federal judicial actions has not infrequently resulted in congressional proposals to diminish judicial independence, whether by reducing the terms of office, by providing less cumbersome methods of judicial removal, or by changing the method of appointment. Indeed, the essence of the present proposal

may be traced back to no less an eminence than Thomas Jefferson. Although Jefferson was, as revealed in Professor Haynes' book "Selection and Tenure of Judges," once committed to judicial independence, he later changed his mind. His early position was encapsulated in his own words in this way:

"The judges . . . should they hold estates for life in their offices, or, in other words, their commissions should be during good behavior." After engaging in battle with the Federalist judiciary led by John Marshall, however, Jefferson came to the view, a different view, again in his words:

"A better remedy, I think," than making the Senate a Court of Appeal on constitutional questions-"would be to give future commissions to judges for six years"-the senatorial term "with reappointment by the President with the approbation of both houses. If this should not be independent enough," he said, "I know not what should be such, short of the total irresponsibility under which they are acting and serving now."

The proposal for fixed, renewable terms of judicial office is not only ancient but contemporary. There have been a plethora of such proposals since the Supreme Court's decision in Brown v. Board of Education. Thus, a quick glance at recent legislative history reveals that in each of the 89th, 90th, 91st, and 92d Congresses there have been at least three proposed constitutional amendments to the same effect as Senate Joint Resolution 106, although the proposed terms varied from 6 years to 10 years. (See e.g., H.J. Res. 1077, 1140; cf. H.R. 14183.) My scanty survey also suggested that, with the exception of S. J. Res. 38, offered in the first session of this Congress, and the proposal before you, this form of restraint on the Federal judicial authority has usually originated in the House of Representatives. It appears that, until these hearings, none of these proposals has received even committee consideration, no less the approbation of either House.

I think it is evident why this proposition has not met with success in the past and why it should not meet with this committee's approval now. There are few propositions more likely to reduce the independence of the judiciary than to compel each judge to account for his judgments periodically to one part of what has been considered, until now, a coordinate branch of government. History reveals the grave constitutional defects that derive from a judiciary subordinate to either the Executive or the legislature. The Declaration of Independence records as a grievance against King George III that: "He has made Judges independent on his Will alone, for the tenure of their offices, and the amount and payments of their salaries."

I commend to your attention on this subject all of Hamilton's Federalist No. 78," but I shall quote here just a few passages from it. Mr. Hamilton wrote:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such for instance, as that it shall pass no bills of attainder, no ex-post-facto laws and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the

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