The fact that repeated efforts have been made by scholars, jurists and legislators to develop a reasonable alternative to impeachment can be viewed as substantial evidence, in and of itself, that a need for improved judicial accountability has existed throughout our history. The dissatisfaction of Congress with the efficacy of impeachment has been evidenced by legislative efforts originating as early as 1791 when the first constitutional amendment on the subject was proposed. Nine more such amendments were offered between 1807 and 1812 as a result of the impeachment of Justice Chase, and several bills were introduced in the period 1936-1950 following the Ritter impeachment. A few statutory provisions have been enacted which have been credited with possessing varying amounts of disciplinary authority. In particular, these statutory enactments involve the creation of the Judicial Conference of the United States in 1922 and the Administrative Office Act of 1939. Various responsibilities and duties were assigned to several entities by these statutes and the exact amount of disciplinary authority which is available under these laws has been the subject of considerable debate. It is clear that the judicial councils of each circuit, the Administrative Office of the Courts, and the Judicial Conference have been authorized to deal with the Administrative details of the Federal Court system. The question remains, however, whether or not any of the statutory language authorizes the discipline or removal, in fact or in effect, of a judge subject to the jurisdiction of the council or other entity. The courts have avoided directly addressing the question and the only concensus on the issue is that, at the least, whatever disciplinary authority may exist needs legislative clarification.

The logical an unavoidable conclusion at this point is that congressional inaction on the subject of judicial tenure and discipline has resulted in one of the three branches of our Federal government being virtually unaccountable to anyone, even itself.

As I mentioned earlier, during the early 1800's several constitutional amendments on the subject of judicial discipline and tenure were proposed. It is in the years subsequent to the last impeachment in 1936, however, that this subject has been most clearly and carefully scrutinized.

In the late 1930's two bills were introduced in Congress on the matter of providing an alternative disciplinary and removal procedure. S. 4527, introduced by Senator William McAdoo, proposed the establishment of a special court composed of Federal judges which would have jurisdiction over all Federal judiciary misbehavior cases, except those involving Justices of the Supreme Court. The prosecutorial role was filled by the Department of Justice and the decision could be appealed to the Supreme Court. H.R. 2271 was introduced by the Chairman of the House Judiciary Committee, Hatton Summers, and provided that the House of Representatives, by way of resolution addressed to the Chief Justices of the United States, could initiate a hearing into the behavior of an accused district judge. Prosecution was to be conducted by representatives from the House and appeal to the Supreme Court was provided. Both bills restricted the remedy to removal.

Serious legislative efforts in this regard were somewhat dormant from this period until former Senator Joseph Tydings, of Maryland, introduced the Judicial Reform Act in 1969. S. 1506 represented a novel approach to the subject because its procedures were totally confined within the Federal judiciary. A Commission on Judicial Disabilities and Tenure, composed of five Federal judges, was to act as a fact finding body with regard to any allegations of misbehavior. The Commission had the authority to dismiss a spurious complaint, or, in the event the evidence so warranted, to recommend removal of the accused judge to the Judicial Conference of the United States where a trial-like procedure would be conducted. A removal order from the Judicial Conference could be appealed to the Supreme Court. The Judicial Tenure Act which I first introduced as S. 4153 in October of 1974 is patterned after The Judicial Reform Act.

In the spring of 1976 and the fall of 1977, hearings on The Judicial Tenure Act were conducted before the Subcommittee on Improvements in Judicial Machinery of the Senate Judiciary Committee. As a result of the testimony which was received during the course of those proceedings, several changes were made in the Judicial Tenure Act in an effort to incorporate several of the perfecting suggestions offered by the witnesses.

The purpose of S. 295 is to provide a mechanism within the judicial branch itself to enforce the "good behavior" standard which is imposed on the Federal judiciary by Article III, Section I of the Constitution. A procedure to investigate allegations that Federal judges have failed to exercise "good behavior", or charges that a judge is suffering from permanent physical or mental disability that seriously interferes with the performance of his duties is proposed to be established within the Federal judiciary.

Each portion of this proposal has been subjected to scrutiny, at least in theory, since the 1930's and language has been incorporated to perfect each provision as any potential deficiency was identified. I believe that The Judicial Tenure Act represents a comprehensive and reasoned approach which, if enacted, would address many of the insufficiencies in judicial discipline which I have described.

I have examined this issue in some depth and I am convinced, along with numerous bona fide constitutional scholars and prominent individuals in the legal community, that the approach adopted by this legislation is entirely consistent with the United States Constitution. It is important to keep in mind that The Judicial Tenure Act is proposed as a means in addtion to, not in place of impeachment. it would in no way diminish or delete the constitutional authority of the House of Representatives in this regard.

Constitutional questions have been continuously 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; however, the time has come to recognize the practicalities of this issue and to examine it in a broad perspective with reason and logic. Opponents rely upon the assertion that impeachment is the solitary means of removal permissible under the Constitution. I believe that it is productive to examine exactly 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 the sole powers 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 early in our nation's history, that lesser executive branch officials could be removed by order of the President. The Supreme Court ruled in 1897 that the President had 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 reasonably be argued that impeachment is exclusive with regard to some "civil officers", 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 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 after thought, one could easily assume that the Framers intended to further address the subject of tenure of Federal judges in the appropriate place, Article III.

Our Federal system of government is predicated upon the doctrine of separation of powers. The inter-relating system of checks and balances was devised by a group of men concerned by abuses produced through the dominance of one branch of government, the English Monarchy, over the remaining two branches. They took great care to provide elaborate safeguards to ensure against history repeating itself in the American government by formalizing the separation of powers doctrine. I believe that impeachment of Federal judges was authorized, not as an exclusive means of disciplining the judiciary, but rather as one of the limited checks by one branch of government on another. Impeachment was not intended to preclude the judiciary from disciplining itself, rather it was intended as a carefully circumscribed exception to the doctrine of separation of powers to be used in extreme cases of abuse or as a safeguard against judicial branch inaction.

If we accept the principle that impeachment of Federal judges is a limited authority granted to the legislative branch as part of the system of checks and balances it seems logical that the Framers must have contemplated a disciplinary mechanism that would be available for less than extreme cases of abuse and in the normal course of maintaining the integrity and efficiency of the judicial branch. This mechanism was contemplated and it was logically placed in Article III of the Constitution.

Professor Raoul Berger, the noted constitutional scholar, who testified on behalf of this legislation during the 94th Congress has compiled a detailed analysis of the history and precedent on which the "good behavior" clause is based, and I would like to offer a copy of his testimony for inclusion in this record at an appropriate place. In his testimony before the Subcommittee on Improvements in Judicial Machinery, Professor Berger documented the technical legal distinction between impeachment and "good behavior" tenure. His analysis generates the unavoidable conclusion that the grounds for impeachment and the "good behavior" requirement are two distinct standards of conduct and that "good behavior" is a much more stringent standard than a prohibition against bribery, treason or other high crimes

and misdemeanors. (i.e. not all forms of bad behavior constitute impeachable offenses). Professor Berger pointed out that impeachment, at common law, was a criminal proceeding brought by the House of Commons in the House of Lords on charges of "treason, bribery, high crimes and misdemeanors". Berger further documented the fact that the terms "high crimes and misdemeanors" had a limited technical meaning which referred to serious offenses and did not encompass all forms of misbehavior.

As this distinguished Committee wrote in their report on the grounds for impeachment, during the Nixon impeachment deliberations, "High crimes and misdemeanors has traditionally been considered a term of art. . . The Supreme Court has held that such terms must be construed, not according to modern usage, but according to what the Framers meant when they adopted them". Although the Framers departed from the English model in separating the impeachment proceeding from a criminal proceeding, they intentionally retained the limited technical grounds of "high crimes and misdemeanors." Furthermore, there is no indication that the Framers intended the impeachment provisions to be a complete recitation of the causes justifying removal from office.

In contrast to impeachment, removal for breach of "good behavior" was a judicial, not legislative proceeding. Good behavior tenure was originated in the Act of Settlement in 1700 in an effort to isolate the judiciary from the arbitrary whims of the monarch. Professor Berger points out that, "the words of 'good behavior' in all commissions and grants, public and private, imparted an office or estate for the life of the grantee terminable only by his death or breach of good behavior." This termination was declared by the judiciary in a civil proceeding for forfeiture of the office which was initiated by a writ of scire facias. Its sole objective was to remove the existing officer with no penalities or disqualifications involved.

A "gap" between the two standards "good behavior" and the grounds for impeachment, must therefore exist. To assume otherwise would be to claim that the grounds for impeachment and "good behavior" tenure are the same and thereby render the "good behavior" clause meaningless. The longstanding constitutional principle that no clause in the Constitution is intended to be without effect will not permit this result. Therefore an alternative method to impeachment to accomplish the removal of Federal judges must have been contemplated by the Framers to provide for the removal for misbehavior or disability less serious than an impeachable offense but in derogation of the "good behavior" standard. The substance of what constitutes "misbehavior" may be open to interpretation but it is completely clear that procedurally, "good behavior" was a term involving the judicial process.

In light of the evidence, it certainly cannot be logically maintained that the Framers would have rejected a process of judicial removal other than impeachment. It seems apparent that the term "good behavior" was employed with the eminently logical intention of providing a disciplinary means, within the judiciary branch itself, in addition to the power authorized to the legislative branch through impeachment. Simple logic indicates that if an office is conferred during "good behavior" it is relinquished upon bad behavior and some means of enforcing that end must be available.

A significant portion of the Senate Floor debate on the Judicial Tenure Act last fall focused on the erroneous impression that this legislation would dramatically dilute the independence of our Federal judiciary. Arguments of this kind are superficial and misleading. Judicial independence, a principle which we all agree is a precondition to an effective system of justice, has historically referred, not to the independence of judges from one another but rather to the independence of the judiciary as an institution from other branches of government. The intention of the Framers was to avoid the experiences of the British which saw the judiciary totally dominated by the King. Professor Berger noted that, "all the remarks in the several conventions that bear on judicial independence, so far as I could find, referred to freedom from legislative and executive encroachments. No one suggested that judges must be immune from judicial control." The assertion that a disciplinary mechanism, totally restricted within the judiciary, infringes on judicial independence simply does not make sense.

The time has come to recognize the practicalities of the issue and to examine it in a broad perspective with reason and common sense. It is clear that impeachment, in practical terms, is not an effective disciplinary mechanism. It is clear that the existing statutory authority is ambiguous and insufficient in this regard. It is clear that substantial authority exists indicating that the procedure proposed by the Judicial Tenure Act is constitutional. No less jurists than Justice Rhenquist, Justice Burger and Justice Blackmun have expressed the opinion that the principle represented by the Judicial Tenure Act is constitutional. Attorney General Bell has

stated, with regard to The Judicial Act, "I am not troubled over the constitutionality of the proposed legislation." The Judicial Tenure Act has been endorsed, in total or in principle, by The Judicial Conference of the United States, the American Bar Association, the American Judicature Society and the American Association of Attorneys General. It is clear that Congress possesses the authority to enact legislation in this regard. This authority was described in detail by Professor Berger as follows:

"Since the judicial power to declare a forfeiture on breach of a condition subsequent existed at the adoption of the Constitution, and since a dispute whether the condition was breached constitute a 'case or controversy', it falls within the judicial power. Consequently, legislation that would set up a special court within the judiciary branch to adjudicate disputes whether a judge breached the 'good behavior' condition would merely entail a grant of fresh subject matter jurisdiction . . . such a grant would constitute action to supplement the judicial power' under the 'necessary and proper' clause or under the power of Congress to regulate the jurisdiction of the inferior courts."

Without getting into the details of the various measures before this Committee, I would like to emphasize that the procedures embodied in S. 295 have been closely scrutinized and refined over a period of several years. Judges, lawyers, professors, laymen and Senators have had an opportunity to review and shape the provisions of S. 295 following periods of study and reflection. I believe that this process has enabled us to develop a bill in the Senate that is sound both substantively and procedurally, and I commend the concepts embodied in S. 295 for your detailed study.

I am not wedded to every period and comma in S. 295. If this Committee and the House feel that some constructive changes are necessary, I certainly believe that we can work with you in that regard. I do feel, however, that S. 295 is a thoroughly considered and well-documented foundation for dealing with the judicial discipline problem.

Mr. Chairman, as I pointed out earlier, the theory of providing a means to enforce the standards imposed upon our Federal judiciary has been discussed and debated throughout our history as a nation. Responsible legislation on the subject has been intermittently before the Congress for over 40 years. In recent years, we have recognized the need to shore up public confidence in our Federal government and have therefore implemented stringent ethical and disciplinary mechanisms in the executive and legislative branches. The procedures contained in S. 295 provide us with a reasonable and responsible mechanism to complete the job. With these facts in mind, Mr. Chairman, I am hopeful that the 96th Congress will recognize that the principle embodied in S. 295 is a significant and necessary judicial reform and therefore move expeditiously to its enactment.

Mr. KASTENMEIER. I might observe paradoxically that one of our members is not here this morning, the gentleman from Illinois, Mr. Mikva, because he is over on the Senate side seeking confirmation as a Federal judge. He should be here, it seems to me.

Senator NUNN. It would be very interesting if he construes that he might have a possible conflict of interest when he gets back over here.

Mr. KASTENMEIER. That's right.

Senator DeConcini, would you like to proceed?

TESTIMONY OF HON. DENNIS DeCONCINI, U.S. SENATOR FROM THE STATE OF ARIZONA

Senator DECONCINI. Thank you very much.

I also have a full statement which I will submit to the reporter and ask that it be included.

Mr. KASTENMEIER. All right. Without objection, your entire statement will appear in the record.

[The statement of Senator Dennis DeConcini follows:]

PREPARED STATEMENT OF SENATOR DENNIS DECONCINI

There are currently three pieces of legislation pending in the Senate that relate to the discipline and tenure of members of the Federal judiciary. The first, S. 295,

56-982 O - 80 - 2

the Judicial Tenure Act, as introduced by Senator Nunn and myself creates machinery within the judiciary to deal with judges who through their actions have failed to meet the standard of good behavior required by Article III of the Constitution. S. 295 is identical to its predecessor bill, S. 1423, which was approved by the Senate last Congress but subsequently did not receive any attention in the House due to its late passage in the second session. Two other legislative proposals have also been introduced by my colleagues this Congress. S. 522, the proposed Judicial Council Amendments and Discipline Act, has been introduced by Senators Bayh, Mathias and others. S. 678, the proposed Federal Courts Improvement Act, a part of which offers a judicial discipline provision, has been introduced by Senator Kennedy and myself. While I believe that the quality of the Federal judiciary is excellent, I find the introduction of three substantial bills on this subject indicative of the fact that the subject of judicial misconduct is a serious issue.

With the recent enactment of the Federal Omnibus Judgeship Act, we have an increase of 152 authorized judgeships which together with approximately 171 judges who are in senior status creates in excess of 850 members of our Federal judiciary. Future forecasts by the Federal Judicial Center estimate that there will be a need for 1,000 district judges and 250 circuit judges by 1990.

Public demand for the accountability of public officials has extended to the judicial branch. The once accepted methods of investigating the activities and behavior of public officials are no longer adequate. Growing public concern over the responsiveness and efficiency of our three branches of government necessitates the development of machinery that can render the system more responsible and responsive to the public. These legislative proposals provide the public with various avenues for channeling complaints and concerns.

Awareness of the problem of the unfit judge is not new to the United States Congress. On October 15, 1965, Senator Tydings addressing the Senate stated, "that although on the whole the general caliber of the Federal judiciary has been extremely high, the problem of the unfit judge is a serious challenge to our judicial system." The Senator's foresight resulted in a series of comprehensive Senate hearings on the vital but sensitive issue of judicial fitness. Rarely has any proposed legislation received such comprehensive and thorough scrutiny and consideration. Since 1965, the Senate Judiciary Subcommittee on Improvements in Judicial Machinery has heard from over 60 witnesses in more than 20 days of hearings. The foundation has been firmly established for the passage of legislation whose time has come. Though each proposal introduced each year since 1965 addresses the subject of judicial discipline in a slightly different manner, that those proposals acknowledge an existing problem is the compelling point.

The existing method for dealing with an unfit judge is removal by impeachment as provided for in the United States Constitution. Impeachment as indicated by its disuse is an unrealistic and ineffective method for protesting aberrant behavior of our Federal judiciary. Future reliance on a presently inadequate impeachment process as the only viable procedure for inquiry into alleged misconduct is unrealistic. We owe constituents an accessible means of protesting judicial conduct that is inconsistent with the behavior required by the Constitution. Conversely, we owe Federal judges an alternative to the stigma attached to impeachment proceedings, in those cases where aberrant behavior is the innocent product of a poor mental or physical condition.

Essential to the passage of any legislation on this subject is an understanding of the Constitutional provisions pertaining to impeachment, and the Constitutional issues raised by the proposed bills.

The United States Constitution was written in light of the English legal experience. Insight as to the English method of removal is useful in grasping the framers intent as to the Constitutionally allowable means of removing judges.

Prior to the Act of Settlement in 1700, judges were appointed at the pleasure of the crown, that is, judges were subject to the will and whims of the King, and judges were frequently removed for rendering judicial decision adverse to the crown. There were some cases where a judge was appointed by the King quamdiu se bene gesserit during good behavior, but basically it was not until passage of the Act of Settlement that a King was required to grant judicial commissions with good behavior tenure.

Authorities in English legal history indicate that several removal methods existed at the time of the drafting of the Constitution. The historical procedures for removing judges holding office during good behavior were: "First, in cases of misdemeanor, the appropriate Court appears to be writ of scire facias to repeal his patent, 'good behavior' being the condition precedent of the judges tenure; secondly, when the conduct amounts to what a court might consider a misdemeanor, then any