Our Federal system of government is predicated upon the doctrine of separation of powers. The interrelating system of checks and balances was devised by a group of men concerned by abuses produced through the dominance of one branch of government, the English monarchy, over the remaining two branches.

They took great care to provide elaborate safeguards to insure against history repeating itself in the American Government by formalizing the separation of powers doctrine.

I believe that impeachment of Federal judges was authorized, not as an exclusive means of disciplining the judiciary but rather as one of the limited checks by one branch of Government on another. Impeachment was not intended to preclude the judiciary from disciplining itself; rather it was intended as a carefully circumscribed exception to the doctrine of separation of powers to be used in extreme cases of abuse or as a safeguard against judicial branch inaction.

If we accept the principle that impeachment of Federal judges is a limited authority granted to the legislative branch as part of the system of checks and balances it seems logical that the Framers must have contemplated a disciplinary mechanism that would be available for less than extreme cases of abuse and in the normal course of maintaining the integrity and efficiency of the judicial branch. This mechanism was contemplated and it was logically placed in article III of the Constitution, and that is, Mr. Chairman, the good behavior provision.

Prof. Raoul Berger, the noted constitutional scholar, who testified on behalf of this legislation during the 94th Congress, has compiled a detailed analysis of the history and precedent on which the good behavior clause is based, and I would like to leave with you a copy of his testimony.

I would hope that during the course of your committee hearings you could have him appear, because I do believe he is a foremost scholar who can address this constitutional issue, at least as far as the scholars who hold that this provision is clearly constitutional. In his testimony before the Subcommittee on Improvements in Judicial Machinery, Professor Berger documented the technical legal distinction between impeachment and good behavior tenure. His analysis generates the unavoidable conclusion, at least to me, that the grounds for impeachment and the good behavior requirement are two distinct standards of conduct and that good behavior is a much more stringent standard than a prohibition against bribery, treason or other high crimes and misdemeanors. Not all forms of bad behavior constitute impeachable offenses. Of course, this committee has studied this issue perhaps more than any other group in the history of the Nation, having undertaken an impeachment proceeding of the highest order against former President Nixon, so I do not intend to give you lessons on what you know far better than I.

Professor Berger pointed out that impeachment, at common law, was a criminal proceeding brought by the House of Commons in the House of Lords on charges of treason, bribery, high crimes and misdemeanors.

Professor Berger further documented the fact that the terms "high crimes and misdemeanors" had a limited technical meaning

which referred to serious offenses and did not encompass all forms of misbehavior.

As this distinguished committee wrote in its report on the grounds of impeachment, during the Nixon impeachment deliberations:

High crimes and misdemeanors has traditionally been considered a term of art.... The Supreme Court has held that such terms must be construed, not according to modern usage, but according to what the Framers meant when they adopted them.

Although the framers departed from the English model in separating the impeachment proceeding from a criminal proceeding, they intentionally retained the limited technical grounds of high crimes and misdemeanors. Furthermore, there is no indication that the framers intended the impeachment provisions to be a complete recitation of the causes justifying removal from office.

In contrast to impeachment, removal for breach of good behavior was a judicial, not legislative proceeding.

Good behavior tenure originated in the Act of Settlement in 1700 in an effort to isolate the judiciary from the arbitrary whims of the monarch.

Professor Berger points out that

The words "good behavior" in all commissions and grants, public and private, imparted an office or estate for the life of the grantee terminable only by his death or breach of good behavior.

This termination was declared by the judiciary in a civil proceeding for forfeiture of the office which was initiated by a writ of scire facias. Its sole objective was to remove the existing officer with no penalties or disqualifications involved.

When the framers employed "good behavior," a common law term of ascertainable meaning, with no indication that it was being used in novel fashion, they must have assumed the inclusion of similar procedures for its implementation.

Such an assumption is supported by Madison's explanation in the Virginia Ratification Convention that, "where a technical word was used all the incidents belonging to it necessarily attended."

A gap between the two standards, therefore, must exist. To assume otherwise would be to claim that the grounds for impeachment and good behavior tenure are the same, and thereby render the good behavior clause meaningless.

The long-stand constitutional principle that no clause in the Constitution is intended to be without effect will not permit that result.

Therefore, an alternative method to impeachment to accomplish the removal of Federal judges must have been contemplated by the framers to provide for the removal for misbehavior or disability, less serious than an impeachable offense, but in derogation of the good behavior standard.

In light of the evidence, it certainly cannot be logically maintained that the framers would have rejected a process of judicial removal other than impeachment.

It seems apparent that the term "good behavior" was employed with the eminently logical intention of providing a disciplinary means within the judiciary branch itself, in addition to the power authorized to the legislative branch through impeachment.

All of that is a way of saying, Mr. Chairman, that good behavior applies in the judicial area. This whole legislative thrust is aimed at the judiciary policing its own shop. We are not giving Congress additional powers. Neither are we taking away any existing powers of the House or the Senate in impeachment.

This is an additional means and the only means that I see whereby good behavior can be enforced. I know that former Congressman Ford said that high crimes misdemeanors for which impeachment could be imposed meant whatever Congress intended to

mean.

This committee rejected that approach. In the impeachment proceedings you construed high crimes and misdemeanors to have a real, substantive meaning and construed all the history of that in a strict sense. I agree with that.

What that means is that good behavior is a different standard because good behavior certainly cannot imply necessarily the commission of a crime.

Unfortunately, a significant portion of the Senate floor debate on the Judicial Tenure Act last fall focused on the erroneous impression that this legislation would dramatically dilute the independence of our Federal judiciary.

To make a long story short, all the reading I have of history and the constitutional background indicates to me that the independence of the Federal judiciary must and should be assured, and was intended to be assured as independent from the executive and from the legislative branch. But I do not believe it meant that the judiciary should be independent from any standard of good behavior for itself.

To construe it that way means that the constitutional forefathers inserted a provision in the Constitution-"good behavior"—for absolutely no reason, if you construe this approach to be totally unconstitutional.

"Good behavior" has no meaning in the U.S. Constitution because there is no way to enforce that good behavior now, unless you agree with former Congressman Ford when he said that Congress can impeach for any reason it so desires.

So I would submit, Mr. Chairman, that it is time to really confront this issue.

I do not in any way pretend that this bill cannot be improved. I do not stand by every period and comma. I think the House of Representatives can play a very meaningful role in improving the bill in certain places. We have gone over it for many years.

Joe Tydings, the Senator from Maryland, was the first one to introduce this approach in the U.S. Senate.

Senator DeConcini has taken a real lead in it. Without his help. it would not have even gotten to the floor of the Senate last year. I do believe we have an excellent opportunity on the Senate side to pass it again. I would certainly hope that this bill or some version that would be similar, and would turn the "good behavior" clause of the Constitution into a reality rather than a myth, could emerge from this committee this year.

I thank you for letting me appear and I would like my whole statement to appear in the record.

Mr. KASTENMEIER. Thank you very much, Senator Nunn.

Indeed, without objection, the entire statement will appear in the record, and any other accompanying material you care to submit in connection therewith.

[The statement of Senator Sam Nunn follows:]

STATEMENT BY SENATOR SAM NUNN

Mr. Chairman, I would first like to express my appreciation to you for conducting these hearings. I understand that this is the first hearing on the subject of judicial tenure in the House of Representatives during the 96th Congress, and is also, I believe, the first specific examination of this subject in the House for the last several congresses. As you know, the Judicial Tenure bill that Senator DeConcini and I introduced in the 95th Congress was passed by a vote of 43 yeas to 31 nays. Unfortunately, this action was taken in September of 1978 and Congress adjourned before action on the bill could be completed in the House of Representatives. I am pleased, however, that several members of the House of Representatives have now recognized the need for improvement in this area as evidenced by the introduction early in this Congress of several bills regarding judicial disciplinary procedures which comprise the subject matter of this hearing. You have provided leadership in this regard with the introduction of H.R. 4044, as has the distinguished ranking minority member, Mr. Railsback, by introducing his bill, H.R. 4641. I also believe that you have before your subcommittee several pieces of legislation similar to the legislation that Senator DeConcini and I have introduced this Congress. These are H.R. 1227, my colleague from Georgia, Mr. Mathis' bill, H.R. 622, Mr. Pease's bill, and H.R. 2502, Mr. Oakar's bill.

I am extremely pleased to appear before the Subcommittee today, along with my good friend Senator DeConcini, in order to discuss the merits of what I believe to be one of the most significant judicial reforms currently under consideration. The concept of judicial discipline is not a new one. Serious Congressional hearings have been conducted on the subject since the 1930's and a principle similar to that embodied in S. 295, the Judicial Tenure Act that Senator DeConcini and I have introduced this year has been before the Senate for over 10 years. While the Judicial Tenure Act does not represent an entirely new concept, it does represent a concept whose time has come.

I therefore want to commend you at the start for your interest and initiative in this area; hopefully, thanks to your leadership, this important subject can be fully considered and voted upon by both Houses in the 96th Congress.

S. 295 would establish a procedure within the Federal judiciary to investigate allegations that a Federal judge is not conforming to the constitutional standard of "good behavior" or that a judge is suffering from a permanent mental or physical disability that seriously interferes with the performance of his official duties. This legislation, which has become known as The Judicial Tenure Act, provides for the removal, censure or involuntary retirement of a judge or Justice in the event that allegations of that kind prove to be meritorious. I introduced The Judicial Tenure Act in the 93rd Congress as S. 4153, in the 94th Congress as S. 1110, in the 95th Congress as S. 1423 and S. 295 with a few constructive alterations, is substantially the same as those bills.

Many lessons should be learned from the experiences of the Watergate era. We were reminded that power can intoxicate its holders, and be abused by the highest government officials in this nation.

In recent years, new and substantial disclosure requirements have been imposed on Presidential appointees and we have implemented more extensive ethical and disclosure standards for members of Congress. It is imperative that all governmental officials act to restore and maintain the public trust. I believe very strongly that in no branch of government is this public confidence and respect more vital than in the Federal judiciary.

It would be exceedingly shortsighted to focus reform efforts on ensuring that members of the Executive and Legislative branches of our Federal government conform to legal, moral and ethical standards of the highest order and, at the same time, to ignore the conduct and capabilities of members of the branch of government which possesses the authority to interpret, delay, and discontinue the actions of the other two. As now Attorney General Griffin Bell stated during hearings on S. 1110, "We are living in a time when our public institutions are under examination and the courts are not exempt. A citizen should be afforded a clear method for complaining against the courts."

Our appointed Federal judges enjoy a high degree of independence; they are not required to answer periodically to the electorate, as are the President and members

of Congress. Although the need for a substantial degree of judicial independence is clear, experience has vividly demonstrated that no one person, or group of people, can be assumed perfect and therefore left completely unchecked. Despite the overall competence and integrity of members of the Federal judiciary, an occasional judge does misbehave or become physically or mentally disabled and yet continues to exercise the authority of his office.

Historically, the sole procedure which has been employed to remove a Federal judge who has misbehaved (or is disabled), for one reason or another, has been the impeachment power which is housed in Articles I and II in the Constitution. A few selected statutory provision, which generally provide administrative authority with regard to the operation of the Federal Judiciary, have also been suggested as potential sources of additional disciplinary authority.

When America's Founding Fathers, in addition to requiring impeachment for the President and Vice-President, provided for the impeachment of "civil officers", a term which has been interpreted to include Federal judges, they envisioned a nation comprised of thirteen states with a Federal judiciary and a Congress of commensurate size and responsibility. They would have been astonished to learn, for example, that during the 95th Congress, 1,615 measures were passed by the House of Representatives and 1,540 yea-and-nay and recorded votes were cast in the House.1

Present law authorizes 525 Federal judges with an additional 168 retired or senior judges, a number infinitely larger than originally authorized. Pursuant to the recently enacted Omnibus Judgeship Act, an additional 152 federal district and circuit court judges will soon be assuming the bench.

The analogy of impeachment to a heavy piece of artillery, which was made by Lord Bryce, is eminently appropriate. The impeachment procedure is cumbersome and ponderous and is only practical in the most serious and flagrant cases of abuse. As a result, indiscretions which should be addressed are regularly ignored. Commonsense requires that a balance be struck between the necessity for institution of impeachment proceedings and the resultant interruption in the important legislative process. There must be a logical relationship between the importance and power of the respondent and the time required by the House to impeach and the Senate to conduct the trial.

History has borne out Thomas Jefferson's characterization of impeachment as an "impractical thing" and a "mere scarecrow." Over the course of our two hundred years as a nation, only 54 judges and one Justice have been officially investigated. Of these only eight judges and one Justice have been successfully impeached by the House, resulting in the conviction and removal of a mere four judges in two centuries. The last impeachment and conviction occurred in 1936. While I am among the first to appreciate the overall quality of the Federal bench, it seems unreasonable to assert that only four Federal judges in our history have misbehaved or been disabled. On the contrary, the record is filled with substantial allegations levied against judges who continued to serve on the Federal bench. I understand that the Committee has already examined potential current problems.

The facts clearly demonstrate that impeachment has not been utilized to ensure compliance with the constitutional standard of "good behavior" imposed on the Federal judiciary by Article III. Moreover, except in the most flagrant and publicized cases, it is questionable whether impeachment is an appropriate means through which to decide the merits of such serious allegations. Examination of the Fifth Amendment and its due safeguards raises some interesting questions regarding the propriety, if not the constitutional sufficiency, of a trial where, as former Congressman Hatton Summers described the scene, "at one time only three Senators (jurors) were present and for three weeks we presented evidence to what was practically an empty chamber."

A point of view which is too often ignored is that of the accused judge. There is no question that society's rights must be protected, but is impeachment, with its attendant public humiliation and loss of pension a proper remedy to address the problem of a senile or disabled judge who has served well but fails to recognize that the time to step down has arrived?

I believe that a thorough analysis of the impeachment procedures leads one to the inevitable conclusion that, in practical as well as legal terms, impeachment has not ensured and cannot effectively ensure judicial compliance with the constitutional "good behavior" standard. Woodrow Wilson stated this premise most succinctly as follows, "judging by our past experiences, impeachment my be said to be little more than an empty menace.'

It is unreasonable, to say the least, to assume that the House and Senate could or should lay aside all legislative business for weeks or months in order to impeach and try an obscure, yet misbehaving judge.