STANFORD LAW SCHOOL, Stanford, Calif., October 25, 1979. Hon. CHARLES MCC. MATHIAS, Jr., U.S. Senate, Washington, D.C. DEAR SENATOR MATHIAS: I have followed with great interest the deliberations on the Judicial Conduct and Disability Act of 1979, and I have just examined with some care the bill as reported out by the Judiciary Committee and the Report and Additional Views accompanying the bill. In my view, the Act is of questionable constitutionality and of even more doubtful wisdom. It creates hazards to judicial independence without any showing that there is a problem of sufficient magnitude to warrant such novel and dangerous legislation. Its submission to the Senate pays inadequate attention to the fact that less hazardous means are now in place (as a result of recent action by the Judicial Conference and by the Circuit Judicial Councils) to deal with the alleged problemthe problem which even the majority report concedes to be "more one of perception than actuality." My own serious interest in the problem of judicial discipline goes back to the summer of 1978, when I participated in a conference called by the American Judicature Society and the Aspen Institute, a conference primarily concerned with a discussion of the then pending Nunn-DeConcini bill. Though the majority of the participants in that conference began with an inclination to support such a bill, the careful discussion of its features and implications raised grave doubts about its wisdom and constitutionality among many of those in attendance. My own reaction was one of doubt from the beginning, for it seemed to me that the proponents had made no adequate case for its enactment. My continuing attention to the problems raised by judicial discipline legislation has reinforced my grave doubts. It is true that the proposed 1979 Act eliminates some of the most objectionable provisions of last year's bill. But highly questionable aspects remain; and the case for the enactment of any comprehensive legislation of this sort has in the interim been sharply weakened by the response in the Circuits to the Judicial Conference resolution of March 1979 encouraging the promulgation of circuit-wide procedural rules to process complaints alleging judicial misconduct. From the outset, the pervasive constitutional doubt has of course concerned the authority of Congress to enact disciplinary legislation that would bypass the constitutionally prescribed impeachment route. The removal sanction included in last year's Nunn-DeConcini bill seemed to me to fly in the face of the constitutional scheme. Though the Committee version of the 1979 Act does not include the removal sanction, it authorizes the refusal to assign further cases to a judge on a temporary basis. That kind of barrier to the exercise of the power of duly appointed federal judges seems to me of doubtful constitutionality; and the doubts are surely strong enough to give Congress reasons to pause before acting unless the proposed legislation is demonstrated to be of compelling necessity. My strongest objection to the bill stems from the fact that nothing even approaching a showing of such compelling necessity has been made. As a result, the proposed legislation strikes me as creating an unjustified threat to judicial autonomy. 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. I recognize that the bill is not intended to offer a channel for losing litigants and interests to challenge the merits of a judicial decision. Yet over the years, and particularly in recent months, I have been increasingly troubled by remarks I have heard that there are people who look forward to the enactment of judicial discipline legislation as a way of getting at judges whom they consider to be too much to the right or too much to the left or unpalatable in their viewpoint in some other respect. It would not require great imagination for an aggrieved litigent to formulate complaints formally consistent with the limited scope of the proposed Act, yet in substance motivated by disagreements on the merits-complaints which, even though they are dismissed as frivolous, may be appealed; procedures which, even if they do not result in sanctions against the judge, as they presumably would not, would surely serve as harassment and would open the way for one more crack in the fragile framework of judicial independence. Whatever the case for such legislation might have been a year ago, surely it has disappeared with the newly an nounced judicial_resolve, beginning with the resolution of the Judicial Conference, to improve the Judicical councils' machinery for the handling of complaints. That new system has not had a chance to work, and no one I have encountered has suggested that there has been more than a very scattered handful of federal judges in our history who have warranted any kind of judicial discipline. Given that background, how can Congress responsibly add this potentially powerful new threat to judicial independence to the federal statute books? Recently, my concern about the pending legislation has been increased by reports that Senator Nunn may offer an amendment on the floor to reinstate something akin to the removal provision of last year. Everything I have said about the doubtful constitutionality and lack of wisdom of the 1979 Act applies with multiplied strength to any such removal proposal. Even more than the pending Act, it is ill-considered overkill. And even more clearly than the sanctions in the 1979 Act, the removal sanction would in my view be unconstitutional. To argue that a carefully considered structural provision of the Constitution needs to bé de facto amended by congressional action because it has proved "inefficient" and "unworkable" seems to me the most dubious and most dangerous kind of constitutional interpretation. Many members of Congress are accustomed to criticizing the federal courts, and especially the Supreme Court, for taking an excessively organic view of the Constitution and for occasionally operating as a continuing constitutional convention without adequate regard to the constitutional text, history and structure. (I have frequently uttered criticisms of that sort myself, throughout my professional career.) However, the Supreme Court can at least often point to rather vague phrases of uncertain meaning, such as "due process," in defense of its actions. The 1979 Act, by contrast, tampers with a basic structural provision, a provision designed to assure judicial independence, and a provision which, I am quite confident, neither the framers nor constitutional commentators throughout most of our history would ever have dreamed of being subject to "supplementation" by the legislative branch. It would seem to me ironic indeed if any Senator who has ever expressed criticism of the Supreme Court for exceeding the bounds of proper constitutional interpretation, were to engage in even more dubious interpretation of his own by casting an affirmative vote in support of the 1979 Act and, even more so, the threatened Nunn amendment. May I close with a personal note. I have just seen your minority statement on the Committee Report on the 1979 Act. I was particulary delighted to find your emphasis on the independent responsiblity of members of Congress to consider carefully a pending bill's constitutionality. In nearly 25 years of teaching of constitiutional law, and in the course of writing my teaching book in the field-the book most widely used in American law schools—I have sought to educate a generation of students and practitioners in the need to confront constitutional questions in all three branches of the national government, and to avoid the frequent temptation to pass the buck by leaving such issues simply to the courts. I appreciate your eloquent reaffirmation of the congressional duty to consider constitutionality, and I hope that your colleagues will take your message to heart. I believe that a careful consideration of the constitutionality and wisdom of the pending legislation will persuade all thoughtful members of Congress to vote against it. With high regard, Faithfully yours, GERALD GUNTHER, William Nelson Cromwell Professor of Law. U.S. COURT OF APPEALS, New York, N. Y., March 10, 1980. Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, House of Representatives, Washington, D.C. DEAR REPRESENtative KastenMEIER: As requested in your letter of February 12, I herewith present my comments on proposed judicial discipline legislation. At the outset, I must emphasize my firm view that any legislation in this area will have an unavoidable and detrimental chilling effect on judicial independence. Informal methods, I believe, are more than adequate to deal with the very rare instances of judicial aberrance. A formal, congressionally authorized mechanism, even one administered by the circuit councils, will inevitably, because of its inherent unpredictability, inhibit much judicial conduct that is proper but unorthodox or unpopular. It may also, as the recent proceedings in California suggest, drive a wedge into the judicial community, transforming a collegial process into a potentially adversarial one. Moreover, I believe that the various alternative bills suffer from serious constitutional infirmities. In this regard, I enclose a copy of my Cardozo Lecture, "Chilling Judicial Independence," as it appeared in the Yale Law Journal. It sets forth in detail the reason any legislation that provides for removal of federal judges by a mechanism other than impeachment is unconstitutional. I also enclose my most recent article, "The Essence of Judicial Independence," which will be published in the Columbia Law Review in May. My purpose in this piece is to round out the full contours of judicial independence, and thereby demonstrate the unconstitutionality of S. 1873, the bill that recently passed the Senate. Briefly stated, the article demonstrates that, absent a showing of compelling need, legislation that threatens to compromise the impartiality of an individual judge by, for example, prompting him to take a "safe" course in deciding a case, violates the separation-of-powers doctrine. As you know, the recognition of pragmatism, as practiced by the branches of our government, has led the Judicial Conference to propose "alternative" legislation, which you have introduced in the House. I must candidly state that, while it certainly represents the least objectionable of the alternatives, I continue to have great doubts about its wisdom and indeed, its constitutionality. Although less cumbersome than S. 1873, it suffers from the same fundamental flaws-it subjects the judge to harassment by disgruntled litigants without demonstrating a compelling need for a disciplinary mechanism. Indeed, the Judicial Councils of each circuit have, by local rules, effectively dealt with whatever minor problems might exist. I hope the House will appreciate the intolerable strain that these bills would impose on federal judges, and will refrain from passing any of them. I would dislike any legislation which might be an instrument for coercing a judge to make a "popular" decision to avoid the possibility of a formal complaint by an harassing litigant or interest groups. I appreicate the opportunity you have afforded me briefly to express my views. Respectfully, Enclosure. IRVING R. KAUFMAN, Chief Judge. RESOLUTION: AS ADOPTED BY THE NATIONAL ASSOCIATION OF ATTORNEYS GENERAL FEDERAL JUDICIAL TENURE Whereas, several states have established Judicial Councils to investigate and act upon complaints of judicial disability or misconduct; and Whereas, it is generally believed that such a mechanism for addressing such problems has proved to be a salutory improvement; and Whereas, legislation is pending in Congress to provide for an Amendment to the United States Constitution to permit a comparable federal judicial reform; now, therefore, be it Resolved, That the National Association of Attorneys General supports the principle that many problems regarding judicial disability or misconduct ought to be resolved without the necessity of impeachment proceedings by the establishment of an appropriate federal Judicial Commission to investigate and act upon complaints that justify such action. (Adopted unanimously.) NATIONAL TAXPAYERS LEGAL FUND, INC., Hon. ROBERT W. KASTENMEIER, DEAR MR. KASTENMEIER: The National Taxpayers Legal Fund is a relatively new organization dedicated to the preservation of economic civil liberties. Our activities include bringing suit to halt unfair IRS regulations and investigatory tactics and acting to curb regulatory constraints on free market enterprise. Since NTLF uses the Federal courts as our major forum for litigation, so much depends on judges who have the integrity and basic competency to understand the arguments. Last April, we began sponsoring an investigation of Federal judges conducted by Pulitzer prize-winning journalist, Clark Mollenhoff, and Washington writer and former Congressional investigator, Greg Rushford. Since that time, they have amassed enough information on judicial unfitness for articles published in the Washington Post (see enclosed copy) and Newsday, and another major article is scheduled soon for the Reader's Digest. Mollenhoff and Rushford are also acting as consultants for the Ganett newspaper chain which is publishing its own series"Justice on Trial"-dealing with problems on the Federal bench. As the investigation proceeds, sources of new and damaging evidence continue to surface against members of the Federal bench. Congress is currently the only body empowered to remove incompetent Federal judges. Unfortunately, however, cumbersome impeachment proceedings must be initiated to do so. As a result, no Federal judge has been impeached since 1936over forty years. It appears that Washington attorney and author Joseph Borkin is correct when he observes: "There is a morbid legal tradition of not moving against unfit judges." The past ineffectiveness of impeachment suggests the need for additional machinery to expedite the removal of incompetent Federal judges. NTLF strongly urges you to support judicial tenure legislation which would effectively supplement the impeachment process. We sincerely hope that you will give legislation of this nature your utmost consideration. Sincerely, DAVID L. GORDON, To establish a procedure, in addition to impeachment, for the removal of certain members of the Judiciary of the United States whose conduct is or has been inconsistent with the good behavior required by article III, section 1 of the Constitution of the United States, to establish additional procedures for the retirement of certain disabled members of the Judiciary of the United States, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 15, 1979 Mr. PEASE introduced the following bill; which was referred to the Committee on the Judiciary A BILL To establish a procedure, in addition to impeachment, for the removal of certain members of the Judiciary of the United States whose conduct is or has been inconsistent with the good behavior required by article III, section 1 of the Constitution of the United States, to establish additional procedures for the retirement of certain disabled members of the Judiciary of the United States, and for other purposes. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Judicial Tenure Act". |