Under the bill, proposed 28 U.S.C. § 372(i)(3), there is no

judicial review of the orders or actions of the new court. While the absence of a right to take a case "all the way to the Supreme Court" may strike one today as strange and aberrational, the Constitution, as was noted above, leaves the jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court in the discretion of Congress. See, e.g., Palmore v. United States, 411 U.S. 389, 400404 (1973); Swain v. Pressley, 430 U.S. 372 (1977). Moreover, even in criminal cases, where constitutional protection is at its highest, absent affirmative provision for it, there is no guarantee of any right of appeal. "A review by an appellate court of the final judgement in a criminal however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law." McKane v. Durston, 153 U.S. 684, 687 (1894); Griffin v. Illinois, 351 U.S. 12, 18 (1956); Ross v. Moffitt, 417 U.S. 600, 606 (1974). Congress for a hundred years did not provide for a right of appeal to the Supreme Court in criminal cases, except upon a certification of division by the circuit court; at first appeal was provided in capital cases and then in others. F. Frankfurter & J. Landis, The Business of the Supreme Court

case,

(1928), 79, 109-120.

The Supreme Court in dicta in recent cases has hinted that preclusion of judicial review of constitutional claims might raise constitutional questions, Johnson v. Robison, 415 U.S. 361, 366-367 (1974); Weinberger v. Salfi, 422 U.S. 749, 761-762 (1975), but its concern appears

to be that litigants at some point have access to an Article III court, Territory of Guam v. Olsen, 431 U.S. 195, 201-202, 204 (1977), and the Court on Judicial Conduct and Disability would be an Article III court.

REPORT TO THE HOUSE ON IMPEACHABLE CONDUCT

The new court is directed to submit to the House of Representatives a record of all proceedings which reveals conduct "which, in its view, would constitute an impeachable offense.... "Proposed 28 U.S.C. § 372(k). It has been suggested that in some sense this authorization may interfere with congressional prerogatives. First, if the bill is enacted, it will be congressional direction to the court and the role of Congress thus detracts from any argument of violation of separation of powers. Nixon v. Administrator of General Services, 433 U.S. 425, 441 (1977). Second, it is not at all clear what constitutes the interference. The report of the court may be a more formal way of making known to the House of Representatives a complaint of impeachable conduct than it may usually receive, but in any event the House retains full discretion to decide whether the conduct is indeed impeachable and

freedom to act.

Shiny & Killin

Johnny H. Killian
Specialist

American Public Law

Pursuant to a request by Congressman Railsback I am enclosing a collection of materials related to state judicial disciplinary commissions. The information from the American Judicature Society's publication, Judicial Conduct Organizations, is now somewhat out-of-date. Please refer to the supplement to Table I for a complete and current list of all the commissions.

I have also enclosed several summaries that have been compiled since Judicial Conduct Organizations was published. That publication will be revised and reprinted this fall. You may be interested, too, in the first four issues of our quarterly newsletter, Judicial Conduct Reporter.

Forty-nine states and the District of Columbia have judicial disciplinary commissions, and the state of Washington has a proposed constitutional amendment on the November 1980 ballot to create such a commission. This is considerable diversity among the 50 jurisdictions in the way judges are selected, in demography, and in the legal culture, but with a few variations the commission model is quite similar from one state to another.

The Center for Judicial Conduct Organizations was established by the Society to provide services to the commissions. It also serves as a national clearinghouse providing information about judicial discipline and ethics to

ajs

200 West Monroe Street Suite 1606 Chicago, Illinois 60606 (312) 558-6900

individuals and organizations. We are following the developments in the Congress and the Judicial Conference of the United States related to disciplinary procedures for federal judges.