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pervasive invulnerability of a federal judge-but that very factor is a source of judicial strength. Most of us, I think, believe the strength is worth the risk of too many years on the bench.

Sincerely,

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DEAR SENATOR: I apologize abjectly for the lateness of my anwser to your letter of May 1. However, my comments will not be of enough significance that they would have made any contribution had they been sent before May 15.

Having no personal interest whatsoever, I strongly oppose the proposed constitutional amendment proposed by Senator Byrd. You and I are familiar with the origin and history of the federal judiciary; so there is no reason for me to recount that here. However, I am not impressed with the reasons given for this kind of tampering with a system which has worked more than reasonably well for more than one hundred seventy five years.

There is another feature of the proposal that seems odd to me. Senator Byrd reports that he has introduced a bill that, if under his proposed amendment a judge is not re-confirmed, he will be retired at full pay. If this is good, why not incorporate it into the amendment itself? On the other hand, if a judge, under the proposal, is not re-confirmed for a valid reason, why should he continue to draw full pay for twenty, thirty or even forty years?

It seems to me that the most effective way of insuring a competent federal judiciary is the careful investigation by the United States Senate of any proposed judge at the time of his initial nomination. You have helped prove that twice quite recently. Any proposal requiring periodic re-confirmation tacitly admits that the Senate did not properly perform its function earlier. With warm personal regards, I am Sincerely,

LEON H. WALLACE.

SENATOR BIRCH BAYH,

THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK,
New York, N.Y. June 1, 1972.

Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR BAYH: Our Committee's comments on a proposal of Senator Harry F. Byrd, Jr. of Virginia which would require that federal judges be subject to a reconfirmation procedure every eight years (S.J. Res. 106) are set forth in the annexed Report.

Very truly yours,

BARRY H. GARFINKEL.

REPORT OF THE FEDERAL COURTS COMMITTEE OF THE BAR ASSOCIATION OF THE CITY OF NEW YORK ON A PROPOSED AMENDMENT TO THE CONSTITUTION TO REQUIRE RECONFIRMATION OF FEDERAL JUDGES EVERY EIGHT YEARS (S.J. RES. 106)

Senator Harry F. Byrd, Jr. of Virginia has proposed an amendment to the United States Constitution which would require that federal judges be subject to a reconfirmation procedure every eight years (S.J. Res. 106). For the reasons set forth below, this Committee opposes the proposed amendment to the Constitution as unnecessary and undesirable.

Few would quarrel with the proposition that amending the Constitution is an undertaking which requires very substantial justification. We submit that no showing has been made, either in Senator Byrd's brief remarks reporduced in the March 15, 1972 Congressional Record or anywhere else, that the Founding Fathers' belief in the desirability of judicial independence has proven ill-founded. It is true, and it has always been true, that in many cases individuals will be critical of the courts for going too far, for requiring too much, for acting too expeditiously. It has always been equally evident that others will speak critically of the very same courts for precisely the opposite reasons. Decision-making is an inherently disputable process when matters of constitutional interpretation or national importance are in issue. Aware of this, the framers of the Constitution nonetheless settled upon tenure for federal judges during "good behavior," a term which most commentators agree was not intended to subject the federal courts to congressional review. [E.g., Kurland, The Constitution and the Tenure of Federal Judges: Some Notes From History, 36 U. Chi. L. Rev. 655, 697 (1969); Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 Ford L. Rev. 1, 51-52 (1970); Shipley, Legislative Control of Judicial Behavior, 35 Law & Contemp. Prob. 178, 201 (1970); and see the dissenting opinion of the late Mr. Justice Black in Chandler v. Judicial Council, 398 U.S. 74, 141-42 (1970).]

The arguments for an independent federal judiciary are well known and need not be repeated here. A member of the Subcommittee on Constitutional Amendments, Senator Sam J. Ervin, Jr. of North Carolina, recently reviewed the history of Article III of the Constitution and summarized it in this way:

The Founding Fathers knew that the form of government they established would not create a judiciary composed of judicial angels who could do no wrong. They knew that the activities of a few judges might handicap the operation of the system, but at the same time they realized that individual liberty is best protected by an independent judiciary composed of judges who are subject to the Constitution alone. They had learned the lesson of history, and attempted to build safeguards into our system which would prevent its repetition. We must not reject their wisdom-and destroy our own freedoms-by regarding the Constitution they drafted as a piece of ancient parchment which can be folded and rearranged to suit the whims of individual men.

Ervin, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108, 127 (1970).

It is hardly necessary to impress upon this Subcommittee of the Senate the importance of the balance of powers in our federal system among three co-equal branches of government. The assertion by Senator Byrd that "[n]othing in our system at present exists to control these judges" is a statement not borne out by the Constitution. Federal judges are nominated by the Executive Branch and are subject to confirmation by the Legislative Branch. All final decisions by District Judges are reviewable as of right in the Courts of Appeals and, depending upon the nature of the case, as a matter of right or discretion in the Supreme Court. Thus, the arbitrary conduct of one judge may always be reviewed by at least one multi-member appellate court. On questions of statutory interpretation where Congress_disagrees with the federal courts, Congress may amend the particular statute. It is only in matters of constitutional interpretation that the federal courts have or, more accurately, the United States Supreme Court has-the final say. Even so, the Congress may legislate within the constitutional perimeters set by the Court and, in the event of severe tension, may seek to amend the Constitution itself. Finally, in extreme cases of "high crimes and misdemeanors," the remedy of impeachment is available. The Constitution, therefore, provides ample remedies to correct the abuses of judges who step outside the law.

On the other hand, what does seem clear to us is that to require federal judges to answer to the Senate-and therefore to the electorate-would gravely and unwisely shift the balance of power among the branches of government. For example, to require the Justices of the Supreme Court to submit every few years to what would become an election campaign, whereby they would be forced to place themselves in nomination and to justify their decision and their writings of the past, would inevitably be to embroil the judiciary in partisan politics and to destroy its independence.

Because we believe that the proposed amendment has not been shown to be necessary, would encourage mediocrity, and would destroy the desirable independence of the Federal judiciary, we strongly urge that the S.J. Res. 106 be disapproved.

[Dated: June 1, 1972.[

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When the Founding Fathers gathered in Philadelphia in 1787 to draft the United States Constitution, the concept of separation of powers was a fundamental political maxim which dominated the thinking of many of the members of the Constitutional Convention. A substantial number of the draftsmen arrived predisposed toward creating a government separated into three co-equal branchesthe executive, the legislative, and the judicial.

The separation of powers doctrine grew out of centuries of political and philosophical development. Its origins can be traced to the fourth century B.C. when Aristotle, in his treatise entitled Politics, described three agencies of government: the general assembly, the public officials, and the judiciary.1 In republican Rome, there was a somewhat similar system consisting of public assemblies, the senate, and the public officials, all operating on a principle of checks and balances. Following the fall of the Roman Empire, Europe became fragmented into nationstates, and from the end of the Middle Ages until the eighteenth century the dominant governmental structure consisted of a concentrated power residing in hereditary rulers, the sole exception being the development of the English Parliament in the seventeenth century. With the birth of Parliament, the theory of three branches of government reappeared, this time embodies in John Locke's Two Treatises of Government (1689), where these three powers were defined as "legislative," "executive," and "federative." Locke, however, did not consider the three branches to be co-equal, nor were they designed to operate independently. Locke considered the legislative branch to be supreme, while the executive and federative functions-internal and external affairs, respectively— were left within the control of the monarch, a scheme which obviously corresponded with the dual form of government prevailing in England at the time, the Parliament and the King."

The doctrine was refined and expanded by Baron de Montesquieu, whose Spirit of the Laws appeared in 1748 and was well known to many members of the Constitutional Convention. The Frenchman based his theory on his understanding of the English system, which, since the time of Locke, had generated a more independent judiciary and a tendency toward a greater distinction among the three branches. In discussing the importance of clear delineations of power among the three branches, Montesquieu wrote:

When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehension might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical

manner.

*United States Senator from North Carolina.

1 ARISTOTLE, POLITICS, book IV, ch. 14. See generally Robinson, The Division of Governmental Power in Ancient Greece, 18 POL. SCI. Q. 614 (1903).

2 J. BRYCE, MODERN DEMOCRACIES 391 (1921).

3 See generally Fairlie, The Separation of Powers, 21 MICH. L. REV. 393 (1922).

4 J. LOCKE, TREATISE OF CIVIL GOVERNMENT AND LETTER CONCERNING TOLERATION 97-99 (Sherman ed. 1937).

5 Id.

6 Fairlie, supra note 3, at 396.

Again, there is no liberty, if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be end of everything, were the same man or the same body, whether of the nobles or the people. to exercise those three powers, that of enacting the laws, that of executing the public resolutions, and of trying the cases of individuals."

Montesquieu also observed that, in the British system, the judiciary ranked "next to nothing" when compared with the other branches of government. Some seventeen years later, Blackstone noted the importance of a more powerful and independent judiciary in his Commentaries, which were a primary reference for the American colonists:

Were it [the judicial power] joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative.'

Just two years before the Constitutional Convention, William Paley, the English philosopher and theologian, observed in his Moral and Political Philosphy;

[T]he judges of the land become not infrequently the arbitrators between the king and the people, on which account they ought to be independent of either; or, what is the same thing, equally dependent upon both; that is, if they be appointed by one, they should be removable only by the other.10

Thus the doctrine of separation of powers, including an independent judiciary, was reasonably well developed by 1787 when the framers of the Constitution met, and its incorporation into the document they hoped to draft was of paramount consideration to them. It was a doctirne of such broad importance that it had been treated by scores of writers, and discussed by knowledgeable men throughout the colonies. It is doubtful that many members of the Constitutional Convention arrived in Philadelphia completely unaware of its impact. Beyond the theoretical importance of the doctrine, the founding fathers had learned a difficult lesson during their first attempt at government under the Articles of Confederation, which had made "virtually no concession" to the principle." That attempt at national government, as any student of American history knows, was not an unqualified success. To correct the shortcomings of the Articles, while at the same time providing checks against tyranny, the founding fathers turned to the doctrine of separation of powers, including an independent judiciary.

A. English Precedents

Many of the men who attended the Constitutional Convention were lawyers, and virtually all of them were familiar with the centuries-old struggle for judicial independence in England. From what they accomplished, it is clear that one of their overriding purposes in applying the doctirne of separation of powers to the new Constitution was to carry that struggle to fruition.

Before the Norman conquest in England, judicial office was "communal" in character, and the courts could not be considered the exclusive tools of the King. Afterwards, the old communal courts were linked with the central curia, which performed multiple functions, and which was staffed by the King's men-—his deputies by virtue of his commission. The causes brought before the curia were decided under the King's writ, making the King himself the "fountain of justice." 12

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W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 259-60 (1765). An unexplained and undocumented note found inside one of the 1765 editions in the Library of Congress proclaimed, "By the year 1776 nearly 2,500 copies of Blackstone's Commentaries were in use in the Colonies, of which 1,500 were of the first American edition exhibited above. This circumstance led Burke, in moving his resolution for conciliation with the Colonies, to declare: 'I hear that they have sold nearly as many of Blackstone's Commentaries in America as in England.'"

10 W. PALEY, MORAL AND POLITICAL PHILOSOPHY 345 (1824).

11 Wright, The Origins of the Separation of Powers in America, 13 ECONOMIA 169, 179 (1933).

12 McIlwain, The Tenure of English Judges, 7 AM. POL SCI. REV. 217, 218 (1913). While not documented, this paper, prepared for oral presentation before a meeting of the American Political Science Association, is highly readable and accurate in detail.

Heretofore, the grant of office in medieval England was practically the same as a grant of land: it conferred an estate, so to speak, in the office, according to the terms of the grant. Many of the King's offices became hereditary by this process, and thus less useful to him. Accordingly, the functions of these hereditary offices were taken over by newer positions, such as justiciar and chancellor, which were filled by men of lower birth but who, because they were dependent on the King, could be entrusted with more power. The tenure of these new offices-which comprised much of the central curia-was at the pleasure of the King. 13 Of course, officials appointed at the King's pleasure could be removed by him for any reason whatsoever. Those appointed during good behavior, which in effect conferred a life estate in the office, could be forced to forfeit their office for misconduct, real or manufactured; the character of the conduct, and whether or not the office would be forfeited, could be determined by the King's Bench under a writ of scire facias.14

The first major challenge to the practice of appointing judges at the King's pleasure came in 1628, when Charles I ordered Sir John Walter to surrender his patent as chief baron of the exchequer because he was dissatisfied with one of Walter's decisions. Walter refused, arguing that his tenture was based on good behavior, not on the King's pleasure, and that he should be removed only if a scire facias proceeding determined he had misbehaved. Embarrassed, Charles allowed Walter to keep his patent, his office, and his revenues, although the judge never again appeared in the court of the exchequer. Although Charles had given in somewhat to Walter, within the next decade he dismissed several other judges and set the stage for the Long Parliament of 1640-41 to demand that he appoint a committee to study the tenure of judges. The result was a petition to the King requesting that he substitute tenure during good behavior for tenure during pleasure. Charles complied.15

Despite the concessions, English kings continued to dismiss judges sporadically during the next sixty years. This was especially true during the reigns of Charles II and James II, when the "transferrals and removals were many" and "passed all precedent and all decency."16 Finally, in 1701, Parliament passed the Act of Settlement, the principal statute dealing with judicial tenure in modern England and "the one substantially followed ever since.”17 Among other things, it provided that:

Judges' commissions be made quamdiu se bene gesserit and their salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawful to remove them.18

Tenure during good behavior-an essential requisite for judicial independencehad become part of the British law, although it was timed not to take effect until after the death of the King and Princess Anne "and in default of issue of either.' Thus, it was not until 1760 that the tenure of the sitting judges ceased to depend upon the pleasure of the reigning monarch.19 Even then, "their tenure was far more secure than it had been under the Stuarts, but they enjoyed at best a limited independence."20 Judges continued to be active politically well into the late eighteenth century," and they still could be removed upon address by both houses for any reason whatsoever.22

Nonetheless, the Act of Settlement established the basis for the modern English judicial system, and it has been observed that:

The net result of it all is that . . . an English Judge holding by patent quamdiu se bene gesserit, like any other official so holding, may lose his office by judicial process under a writ of scire facias, if it appear that the

13 Id. at 219.

14 Ross, "Good Behavior" of Federal Judges, 12 U. KAN. CITY L. REV. 119, 120 (1944).

15 VI E. Foss, THE JUDGES OF ENGLAND 372 (1857). In his brief biography, Foss recounts that after assuming the duties of chief baron, Walter "did not answer to the king's expectations. He was too independent and too honest to suit the royal will." Id. at 371-72.

16 T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 60-61 (5th ed. 1956). See also McIlwain, supra note 12, at 223.

17 McIlwain, supra note 12, at 224.

18 12 & 13 William III, c. 2, § 3 (1700). See als¢ THE EIGHTEENTH CENTURY CONSTITUTION, 1688-1815, at 59 (E. Williams ed. 1960).

19 1 George III, c. 23 (1760).

20 Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135, 137.

21 PLUCKNETT, supra note 16, at 248. Plucknett recites the activities of William Murray, Earl of Mans:eld, who as Lord Chief Justice of the King's Bench remained in the House of Lords and, among other things argued against repeal of the Stamp Act.

22 W. CARPENTER, JUDICIAL TENURE IN THE UNITED STATES 125 (1918).

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