1976] THE FEDERAL JUDICIARY 323 with council orders; any attempt to expand those enforcement powers is inviting a problem such as that in Imperial. He suggests that there are other avenues open for dealing with this problem. The council might simply have brought Rodebaugh's misconduct to the attention of the district judge; if the judge himself made the same order and the reporter failed to obey, he could be fired without involving the Judicial Council at all.124 In Imperial, the circuit might simply have reversed the district judge's decision allowing Nolan to continue as counsel for the trustee when the case was appealed. 125 That author concedes, however, that the Chandler order would have been issued under his third guideline. When a judge refuses to comply with an order, some problems are created. However, he contends that judicial restraint might also have solved this problem. The argument is that if the initial order had merely restricted the assignment of new cases until the judge's backlog was reduced, the situation might not have gotten out of hand. Alternatively, the author suggests that the circuit judges might have refrained from all action as a Judicial Council and continued to deal with Judge Chandler on a case-by-case basis. Enforcement and review remain the big problems. Perhaps by emphasizing the informal tools and general resolutions, confrontation with those problems can be minimized or even avoided. Adopting that approach is a concession that certain problem judges simply cannot be dealt with by the Judicial Councils. That is exactly as many would. have it; whether, however, that is the role Congress foresaw when it granted the supposedly broad powers to the Judicial Councils is a question Congress itself must answer. Adoption of the Nunn bill would be one way to negate the intent the courts have seen in the legislative history of section 332. On the other hand, Congress could demonstrate a contrary intent by making any necessary amendments to section 332. CONCLUSION In comparing the Nunn bill with the Judicial Councils, some may well argue that comparison has been made between apples and oranges. 124 As a court reporter, Rodebaugh was subject to removal by the district court [citing 28 U.S.C. § 753(c) (1970)]. If he failed to carry out a directive of the Administrative Office, that court should bave removed him. Id. at 861. 125 Indeed, the case came before a three-judge panel of the Third Circuit, from which it was referred to the council. 481 F.2d at 44. The case-by-case approach appears to have been adopted by the Tenth Circuit in dealing with Judge Willis Ritter. See, e.g., United States v. Ritter, 273 F.2d 30 (10th Cir. 1959), cert. denied, 362 U.S. 950 (1960); United States v. Hatabley, 220 F.2d 666 (10th Cir. 1955), rev'd, 351 U.S. 173 (1956), on remand, 257 F.2d 920 (10th Cir. 1958), cert. denied, 358 U.S. 899 (1958). 824 INDIANA LAW JOURNAL [Vol. 51:297 While conceding a certain validity to that point, this article is primarily concerned with a larger problem: identification of some of the options on the spectrum of alternative infringements upon the independence of the judiciary. We hear too often that Congress is certain to act in controlling-the judiciary and that the Nunn bill must be accepted and endorsed by the judiciary lest some more lethal method be adopted. The primary purpose of this article is only to refute such an argument and to indicate that there is a reasonable and acceptable alternative to the Nunn bill. But an important threshold consideration has been only tangentially mentioned in discussing alternatives; that is, should there be any additional controls placed upon the federal judiciary? There is a substantial portion-perhaps a majority-of federal judges who would argue that no control at all is the only constitutionally mandated position. The best recent statement of this view is made by Judge Battisti.120 His article merits consideration by anyone interested in the problem under discussion here. Judge Battisti argues that even the power assigned to the Judicial Council to attempt to speed up the disposition of cases in the federal courts, conceded by Justices Black and Douglas,127 is an unconstitutional foray by Congress into the independence of the judiciary. However, assuming some control is constitutionally allowed, the cases discussed here suggest several alternatives. Justices Black and Douglas would apparently allow some administrative controls aimed only at expediting the flow of cases through the district courts. However, they would reject any attempts-arguably either formal or informalat censure, removal, or other forms of discipline of judges by judges. The next alternative on the spectrum is probably the Judicial Council of the Circuit with the powers it may have after the developments of Chandler and Imperial. Even without congressional clarification, the council has powers to deal with a fairly wide variety of problems. Within the limits of reasonable restraint, the council can be effective, as demonstrated in Professor Fish's book.128 Indeed, even now section 372 remains available to the council if a judge is physically or mentally unable to carry out his duties.129 The mere existence of the Judicial Council allows informal correction of unfortunate practices without the spotlight of more formal action. Without applause or publicity, the Chief Judges of the circuits 126 Battisti, supra note 54. 127 See the dissents in Chandler, 382 U.S. 1004 (1966), 398 U.S. 129 (1970). 128 P. FISH, supra note 64. 129 See note 51 supra. 1976] THE FEDERAL JUDICIARY 325 have effectively used their persuasive powers to eradicate problems which might otherwise have caused serious difficulties in our judicial system. The next alternative would be congressional modification of section 332 to provide more definition of, if not an increase in, the power of the Judicial Council, as suggested by the majority in Chandler. In fairness, at least an amendment is necessary so that the circuit judges would be brought within the scope of the councils' rulemaking and persuasive powers. Further, while it seems unlikely that the courts will adopt the positions taken by Justice Harlan and Judge Lumbard, Congress might amend section 332 in any number of ways to give the councils more power than they appear currently to possess. By specifying a standard of review and a reviewing court-possibly a designated panel such as used in Imperial, the circuit court itself (as suggested in Imperial), or the Supreme Court-Congress could expand the councils' powers to include those actions approved by Justice Harlan and Judge Lumbard, possibly without even specifying whether the Judicial Councils are to act as administrative bodies or as courts. Congress might also enumerate the powers of the councils and rescind the general power of section 332. Such an approach is probably a more difficult one than Congress might wish to undertake but it may well end debate on the subject more effectively than any of the alternatives other than that propounded by Judge Battisti. Judicial removal, such as proposed in the Nunn bill, is the last alternative on the continuum. As discussed earlier, its constitutionality is suspect. Strong policy arguments also militate against its adoption. On the other hand, it would remove from the scope of section 332 most of the problems that have plagued the Judicial Councils and would provide a powerful tool for dealing with errant judges. Perhaps what should be done can be determined only when horizons are expanded beyond the individualized problem being considered. It would be unfortunate indeed for overreaction to bring about a "solution" which cures a malady but kills or cripples the patient. That horizon expansion occurs when we inject the basic premise that the separation of powers is not only a basic concept of our form of government, but its continuing vitality is the only method available to check and to prevent imbalance and possible tyranny. That separation of power is effective only so long as there is an independence of the judiciary, not merely as one of the three branches of government, but such that each judge can carry out his responsibility unfettered by political pressure. Thus, even assuming a case can be made for some form of control, Professor Kurland's caveat should be kept in mind: 326 INDIANA LAW JOURNAL [Vol. 51:297 When dealing with so fundamental and fragile a notion as the independence of the judiciary, one ought to treat warily lest the ultimate cost far outweigh the immediate gain.180 If a case for reform has been made, the necessary control mechanisms should be carefully devised and implemented. Unless that case has been made, it would be imprudent to tinker with a system that has functioned with only minor difficulties for nearly two centuries. 180 Kurland, supra note 10, at 666. by J. Clifford Wallace In 1976, we gratefully celebrated the 200th anniversary of the founding of our Republic. These two centuries were marked by America's dedication to the enhancement of (b) The Nunn bill an unneeded human rights and the preservation of a just of judicial and constitutional political system. In retrospect, it cannot be gainsaid that the independent and dedicated federal judiciary performed an inestimably important role in the accomplishment of these noble goals. Whether or not the contemporaries of our nation's quadra-centennial will also be able proudly to proclaim the preservation of human rights and an equitable society will, in my view, depend directly upon the continued integrity and independence of the federal judiciary. It is against this somber backdrop that any proposed inroad on the independence of Article III judges must be considered. I have arrived at the conclusion that S.1423 (the Nunn bill) is a particularly objectionable proposal. My disagreement with it is both specific and general. That is, I believe the specific provisions of the measure are illadvised; it is a bad bill. More broadly, I quarrel with both the bill's constitutional and political premises; it is, in my view, both unconstitutional and unwise. Turning first to the bill's specifics, I shall forebear attempting to do more than highlight a few of the measure's more imprudent provisions. S.1423 provides for four discrete factual inquiries into the merits of a complaint concerning the conduct of a federal judge. These inquiries include a "preliminary investigation" by both the Judicial Conduct and Disability (continues on p. 478) 476 Judicature/Volume 61, Number 10/May, 1978 EXHIBIT B independence |