I wonder, is that erroneous on my part, or is there anything we can look to as a body of knowledge on what constitutes good behavior? You were talking to my friend from Michigan a moment ago about that. But here if you simply define good behavior as the absence of bad, or bad behavior as the absence of good, we are not really helping much, are we? Mr. FREEDMAN. Well, I am not in a position to dispute Professor Berger's analysis in terms of what good behavior, lack of good behavior meant in English common law. As I said, I have an opinion that I don't have a great deal of assurance about, that good behavior took on special connotations in the revolutionary period. Mr. MAZZOLI. Judges are sometimes, as we are, given to tirades and personal piques. I read about a judge from across the river in Alexandria who runs such a tight ship and raises cain and interferes in the cases and all that. Would that constitute in your judgment bad behavior or lack of good behavior? Mr. FREEDMAN. In my judgment, it would not, as you describe it, but I have seen judges commit abuses of litigants that I would consider to be bad behavior. I think, though, that I would hesitate, even in cases that come to mind, to bring those to an impeachment level. It is a very troublesome thing. Mr. MAZZOLI. It certainly is. I have overstayed my welcome and my time, and I thank you very much. Mr. Chairman, I appreciate your forebearance. Mr. KASTENMEIER. The gentleman from North Carolina. Mr. GUDGER. Mr. Chairman, I want to congratulate Professor Freedman on what I think is one of the best briefs I have seen presented in quite a long while, and thank him for his comments and his very, very fair treatment of this very difficult subject. Mr. FREEDMAN. Thank you. May I share your appreciation with Mr. Gabriele. Mr. GUDGER. I agree. He is deserving. Having come from a State where merit selection has been a problem, which we have addressed dealing with a judiciary which has an 8-year term and reelection routinely thereafter, but still has confronted the same problems, that we are seeking to relieve that with legislation offered by the two distinguished Senators who preceded you in your testimony here. I know how complex, how difficult, how delicate this situation is. I would add only one word to what you have given by way of alternatives now functioning as relates to corrective measures upon the delinquent or inadequate judge, and that is peer pressure itself. I think within the Federal system the judicial conferences held in each circuit exert a strong peer pressure by the bar that practices in the circuit, by the bench itself, upon a colleague of the bench. Mr. FREEDMAN. Yes, sir. Mr. GUDGER. I suspect we are seeing a great deal of self-correction evolve, and an internal management develop which is over coming the weaknesses of the occasional judge whose behavior is less than what we might otherwise consider good. But with that very limited observation, I do commend you for an excellent presentation. Mr. FREEDMAN. Thank you, sir. Mr. GUDGER. I yield back my time. Mr. FREEDMAN. Could I add a comment to that? Mr. KASTENMEIER. Yes. Mr. FREEDMAN. There is another side, of course, to peer pressure, as I was discussing with Congressman Mazzoli a moment ago. I have even heard litigating lawyers complain about judges having their own dining room, because they become so isolated and so susceptible to group thinking. That is another limitation on judicial independence that is inevitable and that I think should not be ignored when we are trying to get the full picture of where we are right now in terms of the extent of pressure on judges one way or another. Mr. KASTENMEIER. On behalf of the committee I would like to thank you for your appearance this morning. It has been a very enlightening statement. Certainly your presentation, I agree with the gentleman from North Carolina, Mr. Gudger, as a brief was superb. This concludes our hearing for today. We will reconvene tomorrow morning, same room, at 9 a.m. At that time we will hear from a panel of judges who will be testifying for the Judicial Conference of the United States and we will receive testimony from two investigative journalists who will testify for the judicial integrity project of the Fund for Constitutional Government, and the National Taxpayers Legal Fund. [Whereupon, at 11:40 a.m., the hearing was adjourned, to reconvene at 9 a.m., July 13, 1979.] JUDICIAL TENURE AND DISCIPLINE 1979-80 FRIDAY, JULY 13, 1979 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, Washington, D.C. The subcommittee met, pursuant to notice, at 9:25 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Danielson, Gudger, Mikva, Railsback, and Moorhead. Also present: Michael J. Remington, counsel; and Thomas Mooney, associate counsel. Mr. KASTENMEIER. The committee will come to order. Momentarily, our other members will be joining us. This morning our first panel of witnesses is composed of three illustrious Federal judges who are designated to represent the Judicial Conference of the United States. I regard them as old friends. They have testified ably and helpfully before this committee and other committees of the Congress over the years. They are Judge James R. Browning, Chief Judge of the Ninth Circuit Court of Appeals. He is accompanied by one of his colleagues from the ninth circuit, Judge J. Clifford Wallace. And third we have Judge Elmo B. Hunter, a district judge for the Western District of Missouri. Judge Hunter is the chairman of the Committee on Court Administration of the Judicial Conference. Gentlemen, we are very pleased to greet you. As you perhaps are aware, this committee is now going into judicial tenure legislation, I believe, for the first time in many years. Like the Senate, which has in fact worked on it, I think you will find this committee is openminded, and impressionable, and desirous of what you have to say about the subject. You may proceed as you wish in whatever order you may care to. TESTIMONY OF HON. JAMES R. BROWNING, CHIEF JUDGE, NINTH CIRCUIT COURT OF APPEALS; HON. J. CLIFFORD WALLACE, CIRCUIT JUDGE, NINTH CIRCUIT COURT OF APPEALS, AND HON. ELMO B. HUNTER, U.S. DISTRICT JUDGE, WESTERN DISTRICT OF MISSOURI, JUDICIAL CONFERENCE OF THE UNITED STATES Judge HUNTER. Mr. Chairman, as you mentioned, in the past I have had the pleasure of appearing before this subcommittee on other subjects and in each of those instances I have provided a brief personal background summary. So this morning I will only engage in a short repetition. I am Elmo B. Hunter, a Federal district court judge from the Western District of Missouri. I appear here today in my capacity of chairman of the Court Administration Committee of the Judicial Conference of the United States. I am authorized by the Judicial Conference to make this appearance and to present its views on the all important subject of judicial tenure as it might apply, particularly to the subject of discipline and the removal of Federal judges for constitutional causes. I ask that as of the close of these remarks that you permit the filing of my prepared statement and its accompanying exhibits as a part of this hearing. Mr. KASTENMEIER. Without objection, your statement and exhibits that you submit and any other statement of the panel, either from Mr. Wallace or Mr. Browning, will be similarly accepted in the record. Judge HUNTER. Thank you. You have already acknowledged the presence of these two gentlemen who are seated to my right. I would like to simply add to that introduction very briefly. To my immediate right is the Honorable James R. Browning, chief judge of the Ninth Circuit Court of Appeals who is a member of the Judicial Conference and a member of its executive committee. Judge Browning has a large and helpful experience as chairman of the Circuit Council of the Ninth Circuit. To his right is one of the most knowledgeable men in America on this subject that you are engaging in today, Judge J. Clifford Wallace of the ninth circuit. He has studied and written, lectured, spoken extensively on this subject, and has been of immense aid to the Congress. He will address you at the close of my remarks. We think it may be helpful to you to hold particular questions until after all three of us have completed our remarks. It may help expedite the hearing. But we certainly do invite your questions. Mr. Chairman, at least in the last decade there has been no other issue before the Court Administration Committee or before the Judicial Conference of the United States that has proven to be as difficult or as important as the basic issue here before you today. That issue, as we see it, is what processes and procedures, if any, should be legislatively instituted to supplement and to compliment, if not to effectively substitute, for the impeachment of a Federal judge under Article I of the Constitution. As a result of congressional inquiry over the years, since October 1940, the Judicial Conference and its subcommittees have spent enormous time and study of this difficult subject, probably more time than has been spent by it on any other single subject in its history. At pages 4 through 11 of my prepared statement I have set out a summary of those studies. The fact that this Congress now has before it four House bills and three Senate bills and is conducting this type of indepth hearing on the subject amply demonstrates that this Congress is vitally interested in assuring that the people |