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women citizens of this country in the same way it includes racial and other minorites. And, as a result of this, for about 49 years there has been a movement through the legislative process to try to mend the Constitution. The Court was confronted in Reed and two other cases with an opportunity to interpret the 14th amendment to apply to women with full force. As a sponsor of the equal rights amendment in the Senate, I could envision, and really was hoping, that the Court would take away the reason for change. Instead of going all the way and reclassifying women as persons, however they just dealt with the unreasonableness of the specific classification at issue. And since then the Congress has gone ahead and approved the amendment so the ratification process can start, and it is starting. So I think we have pretty good evidence of our ability to say if the Court is wrong we can amend the Constitution.

Would you care to direct yourself to the possibilities of changing court decisions short of constitutional amendment, that is, by legislation?

Professor Freund touched on this topic, and I just wondered if you would care to offer your opinion?

Mr. KURLAND. It does make me very timid when you tell me Professor Freund has already spoken on the subject. If I say what he said, I have added nothing, and if I say something different from what he said, then I am wrong.

Senator BAYH. I am sure that he would take issue with you on that. Mr. KURLAND. I think that the constitutional amendment process should, in fact, be limited as a process, that it should go only to basic deficiencies in the structure of Government of our country. As to the power of the legislature short of constitutional amendment to provide an interpretation of the 14th amendment, that is, through the 5th section of the 14th amendment, I certainly think that it is an area that will be burgeoning. That is, I think that the Court in the future may very well recognize that it is not the only body concerned with constitutional principles and that a legislative judgment as to constitutionality, as to the meaning of the Constitution, is something which is entitled to great weight. I do not believe that the legislature has utilized its legislative power sufficiently to reject decisions of the Court either in the statutory area or to a more limited extent in the constitutional area. But looking in a crystal ball is an unproductive thing as far as I am concered.

Senator BAYH. I think I should make one observation: The example of a constitutional amendment which I referred to, as the record will show, put you, our present witness, and our previous witness, Professor Freund, I think, on the opposite side of the merits of that given issue from me. But I was just using that as an example of the Congress' willingness to respond in the event the Court does not.

Mr. KURLAND. Most people take a dim view of legislating by the Court, except that which we would legislate ourselves.

Senator BAYH. It depends on what criteria we use

Well, thank you very much, Professor Kurland. We appreciate your giving us the benefit of your thouthts.

Mr. Bernard Segal of Philadelphia whom we had hoped would be with us this morning is ill and cannot be with us. We will put his statement in the record as well as the letters we have received, and other material pertinent to this subject.

[The documents referred to follow:]

STATEMENT OF BERNARD G. SEGAL

I appreciate and welcome the opportunity to present my views to the Subcommittee regarding the proposed Constitutional Amendment which would reduce the term of every Article III Judge appointed after adoption of the Amendment, to eight years with the right, at the termination of each eight-year term, to stand for reconfirmation by the Senate for an additional eight-year term.

I speak as a practicing lawyer with four decades of experience in Federal and State courts. In addition, during much of this period, I have been concerned with and actively involved in attempts to improve the quality of our judges, to produce better and more realistic salaries and working conditions for them, and to induce adoption of procedures for the removal, discipline or compulsory retirement of the judge who cannot perform his duties, whether due to physical or mental illness, advanced age, or lack of character or temperament.

I have served as President of the American Bar Association, President of the American College of Trial Lawyers and Chairman of the Board of Directors of the American Judicature Society. In all three posts, I gave a good deal of emphasis to reform in judicial selection, tenure, and compensation.

From 1956 to 1962, I was Chairman of the Standing Committee on Federal Judiciary of the American Bar Association (and I continue to attend all meetings of this Committee); from 1963 to 1969, I was Chairman of the Association's Standing Committee on Judicial Selection, Tenure and Compensation; and from 1962 to 1968, I served as a member of the Council of the ABA Section of Judicial Administration. I have been a member of the Federal Judicial Center's Study Group on the Work of the Supreme Court, appointed by Chief Justice Warren E. Burger, and before that I was Chairman of the American Bar Foundation's Advisory Committee on the Study of Congestion in the United States Court of Appeals. In 1953 and 1954, by appointment of President Eisenhower, I was Chairman of the Commission on Congressional and Judicial Salaries, created by the 83rd Congress, and currently I am a member of the Commission on Executive, Legislative and Judicial Salaries. At State and local levels, I have been Chairman of Bar Association Judiciary Committees, and I served by appointment of Governor William W. Scranton of Pennsylvania, as Chairman of the Judicial Nominating Commission which the Governor vested with power to submit panels from which he obligated himself to make his judicial appointments to fill vacancies created by new legislation.

In the several capacities I have named and in others I omit in the interests of time and space, I have had the privilege of appearing many times before Subcommittees of the Senate Committee on the Judiciary and on occasion before the full Committee. However, I have never addressed the Committee, or any of its Subcommittees, on a question which, with full deference to its distinguished sponsor, I regard as having a greater potential for harm than S.J. Res. 106. Except for the comfort I draw from the fact that the numerous prior proposed Constitutional Amendments to the same effect, most often originating in the House but sometimes in the Senate, have never been reported to the floor, I would be profoundly disturbed by S.J. Res. 106.

Long ago, DeToqueville concluded that the independent Federal Judiciary represented the peculiar genius of the American political system. This sentiment has been echoed many times since then. When the American Bar Association first established Law Day USA as a vivid contrast to the May Day of the Communist world, the Association pointed out that freedom and justice for the individual, grounded in a just system of laws and protected by the courts, is America's main claim to moral leadership in the world community. Since the ultimate guardian of these basic freedoms is our judicial system, we cannot maintain our claim to moral leadership unless we demonstrate the superiority of that system-its efficiency, its effectiveness. In that system, the judge is necessarily the keystone. As a great President of the American Bar Association, former Chief Justice Vanderbilt of New Jersey, observed many years ago:

"The basic consideration in every judicial establishment is the caliber of its personnel. The law as administered cannot be better than the judge who expounds it. . . .”

My own experience amply affirms this observation; and so I believe that the essential question in evaluating the proposed Amendment is whether it may reasonably be expected to improve the quality of our Federal Judges and of the

justice they render. I am firmly convinced that not only would the Amendment not lead to any such improvement, but on the contrary, it would have grave detrimental effects on both.

Students of the subject agree, I think that three elements are essential to obtaining judges of outstanding quality: impartiality, independence and immunity. Without these, the personal qualifications we seek in a judge-his character, his honesty, his wisdom, his learning, his courage are of little import or value.

Of these three essentials, it is independence which forms the base of the triangle, for without independence, a judge cannot be impartial, he cannot be immune. Our Founding Fathers recognized this. Both Madison and Hamilton stressed the need for independence of the judiciary. Indeed, Hamilton, in the Federalist papers, developed at length the theme that under our Constitution containing certain limitations to protect the liberties of the people, the complete independence of courts of justice is peculiarly essential. He pointed out that although individual oppression may now and then proceed from the courts, the general liberty of the people can never be endangered from that quarter-so long as the judiciary remains distinct from both the legislator and the executive, and he concluded that "Nothing will contribute so much as this [i.e., life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."1

How then do we insure the separation of our judicial branch from the other branches of government? If the judicial power is truly to be removed from the executive and the legislative branches, then we must start by removing the selection and tenure of judges as far as possible from the processes of partisan politics. Indeed, if there is any single principle upon which there is almost universal agreement among organizations of the legal profession and leading scholars in the law, as well as important citizens' groups, it is that placing judicial selection within the partisan political process strikes at the heart of an independent judiciary and demeans both the judge and the court of justice in which he presides.

In our Federal Judicial system, life tenure for judges has been the keystone of judicial independence. While life tenure is not the rule in most of our States, a very marked trend in recent years has been for States to establish merit selection and merit tenure plans for judges. In the decade of the 60's alone, twelve States adopted one or another or both such plans. The surge of State's instituting these programs in recent years reflects the yearning of citizens to take and keep their judges out of politics. 2

In our Federal system, experience over the years has taught us the wisdom of the Founding Fathers' concept. The life tenure provided for Federal judges has attracted men of quality and independence to the Federal Bench and has insulated Federal judges from political considerations that State judges have often, although decreasingly, been prey to. As I have indicated, students of our judicial system are virtually unanimous in the view that there is a direct relationship between life tenure and the comparatively high quality of our Federal Bench. Obviously, however, although life tenure will attract leading members of the legal profession to the Bench, there is no guarantee that lawyers of high character and ability will be tendered appointment. A great deal of progress has been made in establishing procedures to improve the quality of appointees to the Federal courts. The American Bar Association, with the support of the organized Bar of the Country, has played a strong leadership role in this regard. Under a system announced in the closing months of 1952 by Ross L. Malone, then The Deputy Attorney General (subsequently President of the American Bar Association), and made effective by Attorney General Brownell, followed with progressive improvements by every Attorney General since then-William P. Rogers, Robert F. Kennedy, Nicholas deB. Katzenbach, Ramsey Clark, John N. Mitchell and Richard G. Kleindienst―, the rule has been that no person will be nominated by the President for a lifetime judgeship without his name having first been submitted by The Deputy Attorney General to the ABA Standing Committee on Federal Judiciary for its investigation and report. Without elaborating on

1 Federalist Papers, No. 78: The Federalist 503 (Mod. Lib. Ed. 1941).

2 It is an arresting fact that, with a minor exception, the only other places in the world where the judges are still elected are the Soviet Union and the satellite countries.

3 This does not apply as to nominations of Justices of the Supreme Court at the present time. Beginning with the nomination of Justice William J. Brennan by President Eisenhower and running through the rest of his Administration and the Administrations of Presidents Kennedy and Johnson, a similar procedure was followed in the case of nominations for the Supreme Court. President Nixon initially announced that he would not consult anyone except the Attorney General, but he later agreed to submit a panel in connection with each vacancy (rather than a single individual), and he did so. For reasons which have drawn much public comment and need not be repeated here, he concluded that he would exclude nominations for the Supreme Court from the procedure which, however, he continued to have the Attorney General follow in all other cases. The Senate Judiciary Committee continues, as it has since 1945, to request the views of the ABA Standing Committee on Federal Judiciary as to all nominees for Federal courts, including the Supreme Court.

the operation of the procedure and its results, which have been highly praised by the media in scholarly publications, and by both public and professional groups, I believe it can fairly be said that the caliber of judges on the Federal Bench has never been higher than it is today. The overwhelming majority of these judges are dedicated men and women of ability and integrity, who provide a high measure of justice.

There are, of course, exceptions. It is no reflection on the good judges to recognize that occasionally a judge proves unworthy of the high and honorable post he occupies, that occasionally a judge becomes an alcoholic, that occasionally a judge becomes physically or mentally incapable of performing his duties, or even that occasionally a judge does not demonstrate the integrity that is so indispensable a prerequisite for his post. Unfortunately, one such judge can undo the work and the impact of a hundred excellent judges; regrettably, one really bad experience serves to create general eyebrow raising as to all judges. In the face of the doubts which have been expressed by so many as to the ability of our judicial system to meet the demands which the modern world presses upon it, doubts which I do not share, we cannot afford the increased cynicism by our citizens as to our entire judicial system which the unfit, or the alcoholic, or the physically or mentally incapable, or the senile judge creates. But our concern with these problems must not lead us to abandon so basically sound an element of our Federal judicial system as life tenure; and actually eight years is far too long to risk having a judge on the Bench after he demonstrates his unfitness to

be there.

To deal with these problem cases, I have long supported the need in our Federal judicial system for an effective program of removal, discipline, and compulsory retirement. The American Bar Association has been on record for many years in favor of systems to achieve these purposes, to be administered at State levels by commissions consisting of judges, lawyers, and lay citizens, a majority to come from the legal profession, and in the Federal system to be administered entirely within the judiciary. I have studied these proposals and, as I have twice testified before Subcommittees of the Senate Judiciary Committee, I believe that a system for removal, administered by judges within the machinery of the Judicial Conference, is desperately needed, would be constitutionally sound, and should be enacted. Here, too, there has been a surge among the States in the 1960's and since to adopt removal, discipline, and compulsory retirement provisions. Wherever these programs have been adopted, they have been eminently successful.

We do not need a Constitutional amendment requiring every judge to be subjected to reconfirmation every eight years to rid the Federal Bench of the few who should not be there. An Act of Congress could provide a sound and constructive system to achieve this result. Such an Act, unlike the proposed amendment, would have no adverse effect on the many able, dedicated judges who grace the Federal Bench; on the contrary, it would elevate the judiciary in the public esteem.

I have read in the Congressional Record the Statement of the amendment's distinguished sponsor. A principal basis of his concern is "the recent trend of decisions rendered by the Supreme Court" and the fact that "In case after case, local, Federal district Judges have taken upon themselves to intervene in areas set aside by the Constitution for State and local action." Further comments demonstrate that he is deeply troubled by a large number of decisions of Courts with which he is in disagreement. To prove what he regards as the error of the majority, he cites quotations of Mr. Justice Frankfurter, Mr. Justice Holmes, and Mr. Justice Harlan. Parenthetically, I may say that it is hard to think of three important figures in the history of the law who would more vigorously have opposed this Amendment. That some of their utterances appear to be at variance with decisions of a majority of the Court at a given time is no surprise; these differences among the Justices are apparent every day that Opinions are handed down. Each of these three Justices wrote Opinions from which fellow Justices dissented; each wrote Opinions expressing his own dissent. Like most lawyers, I find myself in disagreement with one or another of the decisions of the Supreme Court from time to time, and with those of lower Federal Courts as well. There has been no period in our history in which the Supreme Court has not been a storm center, sometimes for taking positions which the Amendment's sponsor would apparently applaud, sometimes the reverse as has more recently been the case. Under our Constitutional system, the Congress itself has the means of undoing many decisions of the courts. Other measures are available. This is not the place to discuss them in detail, but it is at least interesting to note how infrequently they

have been used. Instead, once again as in the past, resort is urged to the drastic method of providing the Senate with periodic review of each Judge's decisions, through the device of reconfirmation, with the obvious right, if a majority of the Senate dislikes key opinions of a given jurist, to vote against confirmation. What kind of judicial system would result from such a procedure? What would happen to the separation of powers which the Founding Fathers considered a foundation stone of our governmental system when they drafted the Constitution; and what would be the impact on citizens' respect for the judiciary?

Admittedly, the decisions complained of by the Amendment's sponsor involve important and often complicated questions, frequently constitutional doctrines on which there has been sharp disagreement within the Court and among legal scholars and practicing lawyers. Is the Senate's confirmation process to be used to hold a Judge accountable if he does not happen to be on the same side of these highly controversial emotion-charged questions as a majority of the Senate? For that is all it would take to terminate a Justice's judicial career. If this were to become our system, then the doctrine of separation of powers which the Founding Fathers so wisely constructed will have been disastrously undermined. Every Judge would have to decide the hard-core cases with the Damoclean sword of Senate disapproval hanging over his head. My own belief is that the overwhelming majority of Federal Judges would consciously endeavor to be uninfluenced by this consideration. What of the others? And what of the Judge who consciously resists any accommodation of his thinking to the views of the Senators who would be passing on his reconfirmation, but who cannot restrain his subconscious from this sub judice influence? And even if the Judge is not influenced by the views of key Senators, including those from his own State, who would believe that he had not been? Suppose a suit were to involve the Congress itself, or the Senate, as litigation does from time to time? Justice is imperfect unless it is perceived as justice. And when the public knows that a man's career and future on the Bench will depend on the actions of the Senators of his home State, or of certain key Senators on the Judiciary Committee, or other Senate leaders, how many citizens will believe that justice by that Judge is pure and rendered on the merits alone? One of the major concerns of judges and lawyers today is the cynicism of the public where our system of justice and judges and lawyers are concerned. I suggest that the impact of this Amendment would be to make all three even more suspect in the eyes of the public.

There is a particular aspect of the Amendment's almost certain effect which troubles me greatly. This is the impact on the quality of our Judges. Here, I think I can speak with particular authority. For more than two decades, I have both recruited candidates for the Bench at Federal, State, and local levels, and passed upon the qualifications of individuals whose names have been submitted by the President through the Attorney General or by a Governor through the State Attorney General for report and recommendation. In connection with some of these, I have functioned officially, and in others for the American Bar Association or State or local Associations. I can attest that it is difficult enough today to induce lawyers of unquestioned ability, character, and temperament to accept judicial appointment to Federal District Courts and even Courts of Appeals. At State and local levels, the task is often a herculean, sometimes an impossible, one. Indeed, the migration from State and local Courts to the Federal Bench is considerable. Recently, I had occasion to check the number of active judges presently on the United States District Courts in Pennsylvania who are former judges of our Courts of Common Pleas, our trial court of general jurisdiction. I expected the number to be high, since in Pennsylvania judges are elected on a partisan, political ballot, and until recently had no merit tenure; but the actual figures startled me, and disturbed me as well. Of the 31 active judges now sitting on the three Federal District Courts in Pennsylvania, 12 are former Pennsylvania State court judges. This includes six on the Bench in the Eastern District of Pennsylvania, one-third of the total number; four of the nine in the Western District; and two of the four in the Middle District. These figures make apparent how great the drain is on our State court system. If nothing more, is it not poor economy for Pennsylvania to be providing a training ground for the lawyer without judicial experience who, after he acquires experience, and expertise and maturity as well, goes to the Federal Bench; and I am familiar enough with the screening system for Federal judges to be aware that it is not the poorest Common Pleas Court judges in their respective counties who make the transfer. This situation is duplicated throughout the country.

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