panel to review the behavior of any judge or any justice (except the chief justice) on the complaint of any two justices, two judges, or a justice and a judge; or the chief justice could appoint such a panel on his own initiative. If the panel determined that the conduct of the justice or judge is "not good," his tenure would terminate in thirty days or upon affirmance of the panel's decision by the Supreme Court. A comparable procedure provides for inquiry into the conduct of the chief justice. The bill does not define conduct that is "not good." H.R. 4641 introduced by Representatives Tom Railsback (R-Ill.) and M. Caldwell Butler (R-Va.) would establish a commission on judicial disabilities and tenure within the judicial branch that would sit as a court of the United States to investigate the physical and mental condition of any judge, other than a justice of the Supreme Court, appointed to serve during good behavior and to determine upon complaint whether the conduct of a judge is consistent with good behavior. In its deliberations the commission would consider but would not be bound by the legal canons of ethics, resolutions of the Judicial Conference on judicial conduct, and the acts of Congress relating to judicial conduct. The commission could in its discretion determine that willful misconduct in office, willful and persistent failure to perform judicial duties, or habitual intemperance on the part of a judge are not consistent with the good behavior requirement. Such a determination would be certified to the president “and such judge shall be thereby removed from office or censured accordingly." A commission finding that a judge's physical or mental condition renders him unable to properly discharge his judicial duties would result in a certification to the president for the involuntary retirement of the judge under 28 U.S.C. 372(b). Retired judges not being assigned judicial duties that they are willing to undertake and involuntarily retired judges whose conditions have improved could apply to the commission for entitlement to be assigned judicial duties. Judges denied such entitlement could appeal to the Supreme Court but the commission's findings would be sustained unless the Supreme Court determines from a preponderance of the evidence in the record that the commission's findings should be reversed. Strengthening the Judicial Councils. S. 522 (the Judicial Council Amendments and Discipline Act of 1979) introduced by Senator Birch Bayh (D-Ind.) and three cosponsors would change the composition of the circuit councils and would establish procedures for processing complaints that the conduct of a judge interferes with or impairs the effective, expeditious, and fair administration of the business of the courts or the just determination of litigation. The councils would have subpoena authority and could hold hearings. Complaints would be filed with the chief judge of the circuit or, if he is involved, with the next senior circuit judge. The receiving judge could dismiss any complaint that is frivolous or: which relates to the merits of any decisional or procedural ruling Where a complaint is not dismissed, it would be transmitted to the judge in question, who could submit affidavits in response to the complaint. Upon further review, the receiving judge could (1) dismiss the complaint, (2) "attempt to redress the matter specified in the complaint through any informal means available," or (3) "upon finding that the alleged conduct warrants further investigation or after a determination that the matter cannot be redressed through informal means, refer the complaint to the full Judicial Council for a hearing on the matter." The circuit council would review a dismissal by the receiving judge on the complainant's request, but its affirmance would be final. The receiving judge would submit a written explanation of his findings on any matter submitted by him to the circuit council. The circuit council, upon referral of a matter by the chief judge, would have the "judicial power of a federal court" and would hold a hearing, affording the accused due process rights. The circuit council could dismiss the complaint or, upon "clear and convincing evidence," could request that the judge voluntarily retire, could "order that, on a temporary basis, the judge be relieved of any duties with respect to cases presently assigned or that no further cases be assigned to the judge," or could order the censure of the judge. Council action adverse to the accused judge could be reviewed by the Supreme Court within its discretion. Although there is no provision for recommending impeachment, any adverse action would be reported to the House of Representatives with a transcript of the proceedings. No provision is made for the receipt and review of complaints against Supreme Court justices. H.R. 4044 and S. 678 cited above would deal with judicial discipline by amending existing law dealing with the composition of the circuit councils and by providing authority to summons witnesses and to subpoena records. Any person could file a complaint against a district court judge or a circuit judge requesting that a certificate of disability be issued under existing law, or "alleging a violation of the good behavior standard of Article III, section 1 of the United States Constitution." The council would receive, process, and investigate any allegations and it could either dismiss a complaint as frivolous, dismiss it after corrective action is taken, or hold a hearing where the subject judge could appear with counsel. Upon the conclusion of a hearing, if the council felt that additional action were warranted, it could (1) request voluntary retirement, (2) certify disability, (3) recommend that, on a temporary basis, no additional cases be assigned to the judge, (4) censure or reprimand the judge either privately or publicly, (5) recommend to the Judicial Conference of the United States that it advise the House of Representatives that impeachment proceedings are warranted, or (6) "take such other action as it considers appropriate under the circumstances." The Judicial Conference would review the circuit council decision if requested to do so by the judge, and it could hold hearings (before one or more of its members) at which the accused could appear and could present testimony with the assistance of counsel. The Conference could then dismiss, remand for further action by the council, affirm, or modify the recommendations of the council without increasing the severity of the "sanction recommended or ordered," or it could recommend impeachment to the House of Representatives. These bills also provide that, upon complaint and after a hearing, if the chief justice of the United States has found that the chief judge of the Court of Claims, the Court of Customs and Patent Appeals, or the Customs Court has violated the good behavior standard of Article III of the Constitution or is the subject of another serious allegation, the chief justice would notify the Judicial Conference, which would review the facts and circumstances and make such recommendations as are deemed necessary, in accordance with the Judicial Conference's disciplinary powers discussed above. If any judge of the Court of Claims, the Court of Customs and Patent Appeals, or the Customs Court is found by the chief judge of his court to be subject to a certificate of disability, the matter would be referred to the Judicial Conference. Unlike the Nunn proposal, these bills make no effort to define "good behavior" and contain no provision for the discipline of Supreme Court justices. As noted above, S. 1477, which supersedes S. 678, omits the provisions of that bill concerning the discipline of judges. It does specify the composition of judicial councils and provides them with subpoena authority. On October 30, 1979, the Senate adopted by a vote of fifty-six to thirtythree the clean bill reported by the Sentae Judiciary Committee, S. 1873, after first rejecting Senator Nunn's proposed amendment to substitute essentially the bill adopted by the Senate in 1978. S. 1873 would allow the judicial councils to investigate complaints against federal judges. Under this bill, a council could request that a judge retire voluntarily-which would be permitted without regard to length of service requirements of existing law-if it determines that he is physically or mentally unable to perform his duties. A council could also take disciplinary action against a judge for conduct inconsistent with the effective and expeditious administration of justice. (A disciplinary provision concerning conduct that would bring the judicial office into disrepute was deleted in committee.) Any person could file a complaint with a council, but the complaint would have to allege that the judge is unable to discharge his duties or has engaged in conduct inconsistent with expediting the court's business, and the council could dismiss frivolous complaints. A decision of the council could be appealed to a new court of record, the court of judicial conduct and disability, made up of five judges appointed by the chief justice. The court would only review a case if at least two of its judges agreed to review. It could compel the attendance of witnesses and the production of relevant materials. The councils and the new court would not have removal authority, but the court would submit to the House of Representatives any case involving conduct that in its view constitutes an impeachable offense. Disciplinary and remedial actions that may be taken by the council and new court are: (1) to certify disability; (2) to request the judge's voluntary retirement; (3) to order that, for a temporary period, the judge not be assigned cases; (4) to censure or reprimand the judge privately; or (5) to censure or reprimand the judge publicly. The council could also take other appropriate action short of removal. The court could affirm, modify, or reverse the action of the council under a clear-and-convincing-evidence standard of review on the record before the council, or, when required in the interest of justice, it could order a hearing, at which the judge could testify and be represented by council. The court's actions could not be reviewed by another court. 3 ISSUES AND ARGUMENTS Some issues in the controversy over judicial tenure and discipline are raised by the remedies advocated. Proposals involving amendment of the Constitution sidestep the issue of constitutionality and shift debate to the merits of the policy changes advocated. Because the proposals for legislative changes are more prominent, the issues they raise will be discussed in substantial detail. NEED FOR CHANGE Seriousness of Abuses. Advocates of reforms refer to the tyrannical, arrogant, intemperate, and erratic conduct of certain judges. For example, Judge Willis Ritter of Utah is frequently cited for conduct that justified remedial action but that never was dealt with under the impeachment clause of the Constitution. In Ritter's case a twenty-eight-year history of injudicious conduct and gross abuse of authority led to the filing of a petition for writ of mandamus with the United States court of appeals to bar his participation in cases involving the government. The judge died while the court was considering the petition.18 Following a long history of controversy between Judge Stephen Chandler of Oklahoma and the circuit council for the tenth circuit, the judge was barred by his judicial council from taking any action in any case or proceeding in his judicial district on the council's finding that the judge was unable or unwilling to discharge efficiently the duties of his office. Thereafter, the council modified its order to permit Judge Chandler to adjudicate the cases that had previously been assigned to him, or as might be agreed upon by the judges of his court. His attempt to secure Supreme Court review of the council orders brought much publicity to the issue of judicial behavior.19 During debate on judicial discipline and tenure legislation in 1978 Senator Orrin G. Hatch (R-Utah) recounted that he had tried innumerable cases and contended that he had seen federal judges controlled by large law firms and corporations. He stated that he had seen federal judges become arbitrary and capricious, and frequently had seen them exhibit partiality. He had, he said, witnessed judges drunk on the bench. He was aware of one judge who invoked the Fifth Amendment privilege against self-incrimination in refusing to testify, and yet he continued to sit as a federal judge until his retirement.20 In the same debate, Senator Nunn contended that people who have to deal with a problem federal judge often find that the judge is more powerful in certain matters than even the president. He stated that within the last forty years there have been |