Judicial Tenure and Discipline, 1979-80

The subcommittee met, pursuant to notice, at 9:15 a.m., in room 2226, Rayburn House Office Building, the Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Gudger, Mazzoli, and Sawyer.

Also present: Michael J. Remington, counsel; and Tom Mooney, associate counsel.

Mr. KASTENMEIER. The subcommittee is convened this morning to begin a series of hearings on legislation that is designed to improve public confidence in our judicial system by establishing a procedure, in addition to but short of the traditional impeachment process, for the removal of a Federal judge who has become disabled or whose conduct on the bench does not conform to the constitutional standard of "good behavior."

As any Member of Congress who has recently returned from his or her district will testify, there has rarely been a time in our Nation's history when the institutions of Government more need increased public confidence than today.

This is an era in which the public has begun to exercise its right to demand accountability in its officials. Certainly the accountability of the executive branch through both Executive order and new law has improved in recent years.

The accountability of Members of Congress is not only an issue of great concern with respect to individual Representatives and Senators, but it is a serious policy issue that has resulted in new rules and really a new standard for conduct.

The third branch of government is not exempt from the public's demand for accountability. Removed, necessarily, from the "redress" of the political arena, the Federal Judiciary is for most purpose also beyond the reach of even the most serious of citzens complaints.

The impeachment process is so cumbersome as to be little more than a hollow threat to the judge who is not conforming to the "good behavior" standard. In the history of the Nation only eight judges and one justice have been impeached by the House. Of these only four judges have been removed by the Senate. The last impeachment occurred in 1936 over 40 years ago.

Clearly, the pressures of modern day congressional business preclude the devotion of the investigative and deliberative effort nec

essary to make the impeachment process a viable method of responding to complaints about the conduct of Federal judges.

Hopefully, this series of hearings and the legislative markup to follow will result in a practical, constitutional, and equitable method to respond to the occasional problem of the Federal judge who does not exercise good behavior and the continual problem of improving the public's faith in the institutions of their Govern

ment.

We will be assisted in this process by a distinguished group of witnesses.

This morning I am particularly pleased to begin these hearings with two thoughtful Senate colleagues who have taken the lead on this important court reform issue: Senator Sam Nunn from Georgia, who is author of one of the most important proposals in the field of judicial tenure and Senator Dennis DeConcini, of Arizona, who is the chairman of the Senate Submmittee on Improvements in Judicial Machinery and with whom we have worked closely on this and other issues of mutual concern.

We are pleased and honored to have you.

You may proceed as you wish, Senator Nunn.

TESTIMONY OF HON. SAM NUNN, A SENATOR IN CONGRESS FROM THE STATE OF GEORGIA

Senator NUNN. Thank you very much.

Mr. Chairman and members of the committee, I have a complete statement, and I would like to submit that for the record. I know that time presses on, and you have many other witnesses. I will not burden you with the entire statement but try to summarize it as quickly as I possibly can.

I want to express my appreciation to you for conducting these hearings.

As you know, the judicial tenure bill that Senator DeConcini and I introduced passed by a vote of 43 yeas to 31 nays in the Senate last year.

Unfortunately, this action was taken at a period of time in September of 1978 when Congress was on the verge of adjourning and before full consideration could be given in the House of Representatives.

I am pleased, however, that you and others on this committee and others in your House have taken the initiative in introducing several bills along this line, and I commend you for taking the initiative in holding these hearings.

It would be my hope that we could move on this in both the House and the Senate this year, so that we would be able to possibly get something passed during this Congress. It is, of course, a subject matter that has been talked about for many, many years and there are people with strong feelings about constitutional issues which I will address in a minute.

I do not want to suggest that we exclude any pertinent testimony, or any continuing thought, but I do believe it's a proposition whose time has come.

The facts you have already cited this morning relating to the history of what has happened with impeachment, I think are very, very important.

As Attorney General Griffin Bell stated during hearings on S. 1100, and I quote him:

We are living in a time when our public institutions are under examination and the courts are not exempt. A citizen should be afforded a clear method for complaining against the courts.

I won't go back over some of the things that you have stated in your opening statement about the record of impeachment, but when America's Founding Fathers, in addition to requiring impeachment for the President and Vice President, provided for the impeachment of "civil officers," they envisioned a Nation comprised of 13 States with Federal Judiciary and a Congress of commensurate size and responsibility.

They would have been astounded to learn, for example, that during the 95th Congress, 1,615 measures were passed by the House of Representatives, and 1,540 yea-and-nay and recorded votes were cast in the House.

It is unreasonable, to say the least, to assume that the House and Senate could or should lay aside all legislative business for weeks or months in order to impeach and try an obscure, yet misbehaving judge. Even though he might be obscure in the national sense, in terms of the power and responsibility that judge has in his own area, it is awesome.

History has borne out Thomas Jefferson's characterization of impeachment as an impractical thing and a mere scarecrow.

This is not said to in any way diminish the potential of impeachment. I think it is an exception to the separation of power that clearly gives the legislative branch of Government the right to act against people in the other two branches of Government. However, I think given today's conditions, with huge amounts of legislation on very important national issues moving through the House and Senate, it's very, very unlikely that we are going to turn around the historical trend which means that the judges on the bench, with the exception perhaps of those who are most conspicuous at the highest levels, clearly do not believe they have any accountability whatsoever.

Fortunately, the overwhelming majority of our judges are honorable, decent men and do an excellent job, but when there is an exception, it gives a tremendous amount of public discredit to the whole judicial process, and there is not much that can or will be done about it unless we change the procedures.

A point of view that is often ignored is the point of view of the accused judge if we have an impeachment. Former Congressman Hatton Šummers described the impeachment proceedings that he participated in when he described the scene in the Senate, and I quote him:

At one time only three Senators (jurors) were present and for three weeks we presented evidence to what was practically an empty chamber.

That is the practicality of where we stand today. There is no question that society's rights must be protected, but is impeachment with its attendant public humiliation and loss a proper remedy to address the problem of a senile or disabled judge who has served well but fails to recognize that the time for him or her to step aside has arrived?

I believe that a thorough analysis of the impeachment procedures leads one to the inevitable conclusion that, in practical as well as legal terms, impeachment has not insured and cannot effectively insure judicial compliance with the constitutional good behavior standard.

S. 295 deals with that issue. I won't go into the details of it, Mr. Chairman, but I would like to take a moment to discuss some of the constitutional issues.

I am convinced, after listening to a great number of constitutional scholars on both sides of the issue, that the persuasive evidence is that this approach is entirely consistent with the Constitution of the United States.

Constitutional questions have continuously been raised by those who oppose creation of a procedure which would allow meaningful implementation of the good behavior standard.

My intention is certainly not to cut off constructive discourse on the subject. I don't think we will ever know with absolute certainty the constitutional answer to the question until we have passed the legislation, until it has been challenged and until the Supreme Court rules on it.

I cannot sit here and tell you that I am absolutely certain that this is going to be interpreted as completely constitutional. It is going to require Supreme Court decisions, but I do believe the overwhelming evidence is that it will be ruled constitutional.

Opponents rely upon the assertion that impeachment is the solitary means of removal under the Constitution. I believe it is productive to examine what the Constitution says on that issue and what it does not say.

The Constitution does say in article I that the Houses of Congress shall have sole power of impeachment and trial of all civil officers. It does not say, however, that Congress shall have the sole power of removal of these officers. As a matter of fact, it was determined earlier in our Nation's history that lesser executive branch officials could be removed by the order of the President, and they are civil officers.

The Supreme Court ruled in 1897 that the President has the authority to remove a U.S. attorney despite the fact that the impeachment clause provides for the removal of civil officers. How can it be reasonably argued that impeachment is exclusive with regard to some civil officers under the Constitution, such as judges, and not exclusive with regard to others?

Moreover, if the framers had intended impeachment to be the sole method of removal, it would have been a simple matter to employ specific language to that effect.

It is interesting to note that the extreme remedy of impeachment is provided for in article I, the legislative article, and article II, the executive article. No mention of this procedure is made in article III, the judicial article.

In view of the fact that the debate by the framers on the subject of impeachment focused almost totally on the President and that the term "civil officers" was included almost as an afterthought, one could easily assume that the framers intended to further address the subject of tenure of Federal judges in the appropriate place, article III.

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Judicial Tenure and Discipline, 1979-80: Hearings Before the Subcommittee on ...