(1) The blank space will be completed by insertion of Commission, Judicial Council, Committee or Court depending on the hearing body designated in the statute (2) (3) The investigation and evaluation can be by the Commission, Commission, Committee or Judicial Council 74) The following sanctions may be Removal Retirement Reprimand or Censure Limitations or conditions upon the performance of judicial Fine Costs and Expenses All proceedings shall be confidential until a decision has been announced after a hearing. court, or a panel of the Judicial Council or Judicial Conference. Hon. ROBERT W. KASTENMEIER, STANFORD LAW SCHOOL, Stanford, Calif., March 3, 1980. Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR CONGRESSMAN KASTENMEIER: For nearly two years, I have followed with great interest the congressional consideration of a variety of proposals pertaining to judicial discipline-proposals of the sort now pending before your Subcommittee. The mounting pressures of writing deadlines and other obligations in recent weeks unfortunately prevent me from testifying at your forthcoming hearings and from commenting in detail on the bills before you. However, I do want to urge you and your colleagues in the House to continue to give the most careful attention to the serious constitutional and policy issues raised by many of the pending proposals, and to view with the profoundest skepticism the exhortations of those who assert that the alleged problem has been demonstrated to be a serious one, that disciplinary machinery would not risk impinging on the autonomy of federal judges, and that congressional creation of disciplinary machinery outside the impeachment route raises no serious constitutional problems. Instead of addressing the general issues at length, permit me to enclose a copy of a letter I sent to Senator Mathias last fall, while judicial discipline proposals were pending before the Senate. (Senator Mathias inserted the enclosed letter in the Congressional Record in the course of the Senate debate.) I adhere to the views I expressed in that letter of October 25, 1979, and I believe that most of them are relevant to the proposals now pending before your Subcommittee. I can summarize my basic concerns as follows: I believe that the erection of elaborate judicial discipline machinery would raise serious problems of policy and constitutionality. I believe that, in view of those serious problems, Congress should resist enacting judicial discipline legislation unless it is demonstrated to be of the most compelling necessity. Moreover, I do not believe that such a demonstration of compelling necessity has been made. With respect to policy, I think that creation of an elaborate judicial discipline machinery would risk undesirable harassment of federal judges and unwise impingement upon federal judicial independence. With respect to constitutionality, I think that imposition of serious sanctions-including sanctions less harsh than outright removal-through a route other than the impeachment process would be of very questionable constitutionality. It seems to me that, at the very least, enactment of legislation raising such doubts should not take place without a clear-cut demonstration that the modern record of federal judges reveals a serious, pervasive, recurrent problem of judicial misconduct. In my examination of the legislative record compiled so far, and in my discussions with federal judges and attorneys practicing in the federal courts, I have seen nothing suggesting an adequate factual showing of the existence of a problem warranting serious congressional action. As I noted in my letter to Senator Mathias, enactment of major new machinery seems to me especially inappropriate in view of the increased efforts by the Judicial Conference and the Circuit Judicial Councils to deal more effectively with the alleged problem. If Congress believes, contrary to my own doubts, that a case has been made that there is a compelling necessity for new legislation, I would think that such legislation should strive for the least burdensome means to achieve its objectives, the means least hazardous to judicial autonomy. Given that stance, I would think that new legislation, if it is thought necessary, should not go beyond clarifying and perhaps strengthening the authority of the existing judicial machinery to deal with complaints about judicial misconduct. Your own bill, H.R. 6330, seems to me to come closest among the pending alternatives to achieving that "least hazardous means" objective. Though I doubt the need to enact any elaborate legislation, I would certainly prefer addressing any perceived problem by relying on the existing judicial machinery rather than creating new apparatus. I hope that these comments and the enclosed letter to Senator Mathias are of some use; once again, I very much regret that pressing other commitments prevent me from testifying or from submitting a more detailed analysis of the pending proposals. With high regard, Sincerely, Enclosure. GERALD GUNTHER, William Nelson Cromwell Professor of Law. |