Impeachment

is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy, it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at.

However, the structuring of impeachment as a difficult process was, I believe, not unintentional, for by so doing the Founding Fathers provided protection for the independence of Federal judges who often render unpopular decisions. Our problem, as Members of Congress, is that something fairly egregious has to occur before impeachment is resorted to. Yet there are cases involving Federal judges that need redress, short of removal.

I have serious reservations about the constitutionality or removal provisions short of impeachment and can understand why the Senate rejected such provisions in their consideration of S. 1873. Likewise, I question whether an independent commission or special court should handle this subject. As a matter of fact, it seems to me that the existing provisions or some modification thereof for allowing the circuit councils to hear most of the complaints against Federal judges is a preferable way of handling this. A special court or commission could dilute and jeopardize the independence which Federal judges now enjoy.

As a matter of fact, I recently had the privilege of attending a session of the ad hoc committee of the American Bar Association in Scottsdale last fall. This committee, headed by a former chief counsel of our committee, Ben Zelenko, heard a report from Judge Harry Phillips, of the State of Virginia, who reported on the subject of the self-discipline program which is currently exercised by the courts. Judge Phillips indicated that a number of cases had been taken care of by this process of the court disciplining itself, and I think maybe that concept is inherent in what we may want to do with regard to legislation.

It is my recommendation to the subcommittee that the best approach to the problem would be legislation which would give additional disciplinary authority to the circuit councils short of removal. I realize this approach is not without its critics because, frankly, the judiciary has been less than enthusiastic about policing itself. As we all know from our own experience in dealing with the cases that involve the House Ethics Committee, there are probably few tasks, if any, that are more difficult than disciplining one's own colleagues.

Yet, while there has been reluctance on the part of judges to discipline themselves, I believe the circuit councils, if clothed with additional disciplinary authority, would be capable of handling cases that involve conduct which does not rise to the level of an impeachable offense.

Foremost among such cases are those that involve judicial misconduct. Such cases may be difficult to track, for we are dealing here with a person who is familiar with the law. However, I am optimistic that the circuit counsels, if properly strengthened, will be able to handle such cases.

Additionally, I feel quite confident that the circuit councils can effectively handle cases of alcoholism and senility involving a Federal judge. Experience with these problems establishes that the best forum for the handling of cases is provided by one's own

colleagues. When a case which appears to warrant removal is before the circuit council, it should be referred to the Judiciary Committee, and I would support the chairman's recommendation for enhancing the facilities and personnel and the mechanism certainly of the House Judiciary Committee in handling these complaints that come before our committee. In such cases, the circuit council could make an initial inquiry themselves, for it is no secret that the House Judiciary Committee lacks an investigative arm sufficient to fulfill that responsibility at the present time.

If the subcommittee is inclined to adopt this approach for strengthening the circuit councils, it may also want to consider establishing a mechanism within the House Judiciary Committee for receiving information from the circuit councils.

I agree with the chairman also that we should open up lines of communication. However, I think that in that connection, it is extremely important that we observe the strictest secrecy. If there were a public hearing of every complaint that came before a circuit council, or the Judiciary Committee, it could do great damage to the system and to the whole process of trying to effect disciplinary action.

Stengthening the disciplinary powers of the circuit councils, short of removal, will minimize the constitutional problems involved in this area, and I think eliminate them, by providing the least intrusion into the independence of the Federal judiciary.

Stronger measures should not be undertaken unless the program which I recommended, and which is similar to that being recommended by the chairman, appears later to be wholly inadequate. I am confident that the committee will act wisely in this extremely critical area.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. Thank you, Mr. McClory and Mr. Chairman, for giving valuable testimony on this question.

[The prepared statement of Hon. Robert McClory follows:]

STATEMENT OF HON. ROBERT MCCLORY ON JUDICIAL TENURE AND DISCIPLINE Mr. Chairman and Members of the Subcommittee, I am pleased to be able to appear here this morning with the distinguished Chairman of the Judiciary Committee, my good friend, Pete Rodino. Together, the Chairman and I total 50 years of service in the Congress, certainly the most hectic, dramatic and productive period in the Committee's history. One consistent bright spot during my years in Congress and as a Member of the Judiciary Committee has been the performance of this subcommittee, which has given priority to the problems and needs of our Federal judiciary.

The various Judicial tenure and discipline proposals currently pending before the subcommittee raise fundamental policy and constitutional questions. The Constitution mentions judicial tenure and discipline in only two places.

Article II, Section 4 provides: The President, the Vice President and all civil officers of the United States, shall be removed from office on impeachment for, the conviction of, treason, bribery, or other high crimes and misdemeanors.

And Article III, Section 1 states: The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

The Constitution is unclear as to the precise meaning of the "good behavior" standard for judges found in Article III. There are very respectable arguments on both sides of the issue, as to what, in fact, constitues "good behavior". What we do know is that the "good behavior" standard coupled with impeachment was intended

by the framers of the Constitution to protect the independence of the judiciary and to isolate it from political or any improper influence. The degree of independence enjoyed by members of the judiciary is unmatched in any other public office and in the majority of cases has resulted in life tenure for federal judges.

However, I think it is important to recognize that inherent in the virtually total independence granted to federal judges by the Constitution is the potential for abuse. The consensus of opinion among both proponents and opponents of legislation in the sensitive area with which we are dealing here today is that most federal judges are competent and honest. There are relatively few instances of a federal judge failing to conform to the constitutional standard of "good behavior". However, when corruption or other misbehavior occurs, the federal judge must be held accountable.

There is no question that impeachment is a cumbersome and unwieldy process, as evidenced by the fact that in nearly 200 years only 54 federal judges have been investigated, and of these, only eight judges and one justice have been impeached. Furthermore, only four judges have been removed, with the last impeachment of a federal judge occurring over 40 years ago. In attempting to describe the impeachment process, perhaps Lord Bryce said it best: "Impeachment is the heaviest

piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at."

However, the structuring of impeachment as a difficult process was, I believe, not unintentional, for by so doing the founding fathers provided protection for the independence of federal judges who in many cases render unpopular decisions. Our problem as Members of Congress is that something fairly egregious has to occur before impeachment is resorted to. Yet there are cases involving federal judges that need redress, short of impeachment.

I have serious reservations about the constitutionality or removal provisions short of impeachment and can understand why the Senate rejected such provisions in their consideration of S. 1873. Likewise, I question whether an independent commission or special court should handle the disciplining of federal judges. Professor Gerald Gunther, a noted constitutional scholar, wrote in a letter to Senator McC. Mathias, that was included in the Senate record on S. 1873, that:

"Federal judges are inevitably in the business of rendering controversial decisions. Important issues and interests are at stake in the cases before them; and the losing side frequently and understandably feels aggrieved. With the proliferation of federal statutes and regulations, the federal judges' involvement in controversy is bound to grow. Setting up an unnecessary new channel which may lend itself to the harassment of those judges is a profoundly disturbing departure from one of the most cherished values of the American constitutional scheme, that of judicial independence."

It is my recommendation to the subcommittee that the best approach to the problem would be legislation which would give additional disciplinary authority to the circuit councils short of removal. I realize that this approach is not without its critics, because, frankly, the judiciary has been less than enthusiastic about policing itself. As we all know from our own experiences in dealing with the cases that involve the House Ethics Committee, there are probably few tasks, if any, that are more difficult than disciplining one's own colleagues.

Yet, while there has been reluctance on the part of judges to discipline themselves, I believe that the circuit councils, if clothed with additional disciplinary authority, would be capable of handling cases that involve conduct which does not rise to the level of an impeachable offense. Foremost among such cases are the ones that involve judicial misconduct. Such cases may be difficult to track, for we are dealing here with a person who is familiar with the law. However, I am optimistic that the circuit councils, if properly strengthened, will be able to handle such cases. Additionally, I feel quite confident that the circuit councils can effectively handle cases of alcoholism and senility involving a federal judge. Experience with these problems establishes that the best forum for the handling of such cases is provided by one's own colleagues.

When a case which appears to warrant removal is before the circuit councils, it should be referred to the House of Representatives for further investigation with a view towards impeachment. In such cases the circuit councils could make an initial inquiry concerning the problem, for it is no secret that the House Judiciary Committee lacks an investigative arm sufficient to fulfill its responsibilities in this area. If the subcommittee is inclined to adopt this approach for strengthening the circuit councils, it may want also to consider establishing a mechanism within the House

Judiciary Committee for receiving information from the circuit councils following which further investigation may be undertaken if deemed necessary. One possibility for such a mechanism would be the assigning of such responsibility to this subcommittee, which already has the Federal judiciary within its jurisdiction.

Strengthening the disciplinary powers of the circuit councils, short of removal, will minimize the constitutional problems involved in this area, while providing the least intrusion into the independence of the Federal judiciary. Stronger measures should not be undertaken unless the program which I have recommended appears later to be wholly inadequate.

I am confident that you will act wisely in this critical area of our common

concern.

Thank you.

Mr. KASTENMEIER. I have several questions I would like to ask for amplification. I would like to ask chairman Rodino, the last Federal judge to be impeached was a district judge, which occurred back in 1936.

Several of our witnesses suggested that the lack of impeachment of the senior Federal judge for nearly half a century is proof, standing alone, that the modern Congress has not satisfactorily exercised impeachment authority. Would you agree with this proposition?

Chairman RODINO. Well, that's rather difficult to answer, and I'd like to proceed this way.

First of all, we have got to recognize that impeachment is a kind of power that was delegated to the Congress, and especially to the House of Representatives, which has its own power, and it was delegated through recognizing that this was the ultimate and the last resort, and this is why I think the impeachment machinery, as some have said, is so cumbersome.

I believe it was designed so in order that we be very careful and very deliberate about the application of this process of impeachment, and I think that if we look back, we find that impeachment being an action that is taken only as of last resort, really would serve us well only in such instances and only after all other possible actions may have been taken to cure whatever the problem may have been.

Now I don't doubt that there may have been judges who committed impeachable offenses during the last 50 years, judges who were not found guilty of impeachable offenses. But, however, if we consider the cases, we will find that a good many of them are solved by the very institutions that serve us.

Several judges resigned from the bench when threatened with prosecution. At least one was prosecuted and then resigned after conviction. And other problems, usually related to alcoholism and senility, were solved internally by the Federal judiciary.

In all of these instances, we find that the system really works, that we either have discovered that certain actions will, of themselves, when taken, cure the problem instead of resorting to the ultimate of impeachment.

I just want to remind you that the Constitution itself provides that impeachment is no substitute for the ordinary application of the criminal laws, since in article I, section 3, it specifies that impeachment does not immunize the officer from criminal liability for his wrongdoing, and indeed may be brought to the bar of justice for the violation of any criminal statute.

I might add that prior to the-I think if we look back, we will find that prior to the Nixon impeachment, many commentators suggested that the House Judiciary Committee did not take its impeachment responsibility seriously; that we were not moving toward impeachment as such; and it was only because I believe we had to act responsibly and deliberately and recognize it was a matter that had to be dealt with so carefully that it was one of last resort, as I believe that the Founding Fathers intended it.

And, as such, as we all remember, President Nixon resigned, and I believe that it was a resignation that was compelled as a consequence by the action of our committee, which I am sure, had we gone further-and we could have gone further-but I believe that it was not warranted, as a result of the trauma already visited on the country, and the fact that he had resigned, that removal is the ultimate considering the impeachment process, that therefore there is no need to take further criminal action in that case, although it could have been taken.

And so in the cases of these judges, where there might have been impeachable offenses found against them, nonetheless there were actions that were taken ahead of time that did resolve or cure the problem, either by having resignations take place or prosecutions beforehand.

Mr. KASTENMEIER. Thank you.

I might ask you both to comment on article I, section 3 to the Constitution, which states that the House of Representatives shall have the sole power of impeachment.

The meaning of that, I understand you to say, is you believe it would be constitutionally impermissible for Congress to statutorily delegate the removal, power by granting it, say, to a judicial tenure commission. Do I understand your remarks correctly? Do you think we could not do that?

Chairman RODINO. Yes, I believe that that power that is vested solely in the House of Representatives to impeach is one that cannot be delegated. I think that it remains in the Congress, whether the Congress itself delegates it to an arm of the Congress, as it did.

When we as members of the judiciary were assigned that responsibility, that is one thing apart; but to go beyond the House of Representatives, I believe would be flying in the face of the constitutional intent, and certainly defeat what we consider to be the sole responsibility of the House of Representatives, which is to impeach, and then the Senate, in the event that impeachment takes place, with its own responsibility as the Constitution also states, to try.

And this is why I believe it would be absolutely impermissible, as you put it, to delegate it to any other arm of government.

Mr. McCLORY. I'd just like to add that in addition to the constitutional limitations, I think it would be bad policy, because it would diminish the independence of the judiciary, and that is something we do not want to do.

If the judiciary was subject to control, so to speak, by some commission or some other body outside the judiciary, even an executive-appointed body, or legislative-appointed body, I think it would be bad. I don't think we want the judiciary to be subject to