Association overwhelmingly endorsed the key provisions of the Judicial Reform Act. While concurring in the basic thrust of the report of the Section on Judicial Administration, the Committee on Judicial Selection, Tenure and Compensation included within its report certain suggestions for revising the legislation. Today, we are privileged to have with us three distinguished members of the American Bar, leaders in the field of judicial administration, Theodore Voorhees, Esq., chairman of the ABA Committee on Judicial Selection, Tenure and Compensation; Earl Gray, Esq., a member of that committee; and C. Frank Reifsnyder, Esq., representing the Section on Judicial Administration.

We are also privileged to have with us Assistant Attorney General William Rehnquist, who will testify on behalf of the Justice Depart

ment.

Mr. Rehnquist, we are delighted to welcome you here.

Mr. Rehnquist is Assistant Attorney General in charge of the Office of Legal Counsel. He received his LL.B. from Stanford University in 1952. Following his graduation from law school, he served as law clerk to U.S. Supreme Court Justice Robert H. Jackson and then practiced law in Arizona. He is a member of the American Bar Association and the State Bar of Arizona.

Mr. Rehnquist, I might say that I have read your statement, I found it an excellent statement, and I will submit it in its entirety in the record at this time.

STATEMENT OF WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, ACCOMPANIED BY HERMAN MARCUSE, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. REHNQUIST. I welcome this opportunity, and with me is Mr. Herman Marcuse of the Office of Legal Counsel who has played a significant role in helping prepare this statement, particularly its historical references.

STATEMENT OF ASSISTANT ATTORNEY GENERAL WILLIAM H. REHNQUIST, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. Chairman: I welcome this opportunity to appear before this Subcommittee as the representative of the Department of Justice to testify on S. 1506, the proposed Judicial Reform Act.

S. 1506 covers many different areas, many of which are the direct concern of the legislative and judicial branches, rather than the executive. I therefore propose to limit my testimony to the constitutionality of the provisions of the bill relating to the removal of judges by methods other than impeachment, and to the involuntary retirement of judges for disability.

My conclusions on those two points are, in brief: First, impeachment is not the only constitutionally permissible method for the removal of judges; hence, judicial procedures for removal of the type provided for in S. 1506 are permissible. Second, a forceful argument can be made that a compulsory retirement system complies with the requirements of the Constitutional provision for tenure during good behavior, if it provides, as does S. 1506, for the continuation of the judge's salary and for an enforceable right to perform such judicial functions as the retired judge is willing and able to perform.

The Constitutional problems here involved obviously are far too complex to be handled adequately, by way of testimony, which must necessarily be brief and cannot adequately document the historical and legal background. The Committee's own memorandum on the subject deals thoroughly with the English common

law background of the problem. and with the arguments flowing from the Constitutional language itself. I shall advert only briefly to these, and concentrate on several historical precedents from the early history of our own nation.

I.

I shall first deal with the question whether impeachment is the only method authorized by the Constitution for the removal of a judge who has failed to comply with the Constitutional requirement of good behavior.

The various materials printed in the Appendix to your Hearings indicate that the Subcommittee is fully cognizant of the historical background of the good behavior clause. I therefore need give only such brief outline of the historical background as is absolutely required for a logical exposition of the Constitutional problems presented by Titles I and II of S. 1506.

Tenure of an office during good behavior has its roots in the England of the Middle Ages. It constitutes a grant of an office for life terminable upon breach of the condition that the incumbent behave himself well. The condition was breached by malfeasance in office or failure to perform the duties of the office. The question whether the condition was breached and the office forfeited was traditionally determined in judicial proceedings in the nature of scire facías.

Originally tenure during good behavior was conferred on what we would now call administrative officers and on some judges of the lower courts. Thus, since the end of the XVth century, the Barons of the Exchequer who were primarily financial officers held office during good behavior.

The judges of the Courts of the King's Bench and Common Pleas, who are the closest to our federal judiciary, however, were granted commissions at the King's pleasure until the middle of the XVIIth century. From 1641 until 1669 the judges of all three Royal Courts were appointed to hold office during good behavior. From 1669 on, Charles II again began to appoint judges to hold office during the King's pleasure. The interference of the late Stuarts with the administration of justice was notorious. One of the principal reforms of the Glorious Revolution of 1688-1689 was the reinstitution of the judicial good behavior tenure, first as a matter of grace, and, as the result of the Act of Settlement of 1701, as a matter of law, beginning with the accession of the House of Hanover in 1714.

Article III, section 1 of the Constitution provides that the judges of the federal courts shall hold office during good behavior. The Article, however, does not specify the procedure for the removal of a judge who violates that condition of his tenure. Article II, section 4 of the Constitution, of course, provides that— The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

There is nothing on the face of that section to indicate that it was designed to constitute the exclusive method for the removal of judges. It certainly is not the exclusive method for the removal of nonjudicial civil officers, other than the President and Vice President, who have been found guilty of treason, bribery, and other high crimes and misdemeanors. Moreover, the terms "treason," "bribery," "and other high crimes and misdemeanors" are narrower than the malfeasance in office and failure to perform the duties of the office, which may be grounds for forfeiture of office held during good behavior.

Nevertheless the question whether impeachment is the only method envisaged by the Constitution for the removal of judges has been debated ever since the Federal Convention completed its draft of the Constitution. The basis for the controversy is presumably Alexander Hamilton's statement in The Federalist No. 79 that impeachment was the only provision for removal "which we find in our own Constitution in respect to our own judges." Alexander Hamilton is, of course, rightly respected as an interpreter of the Constitution. It appears, however, that in the particular area of the power to remove federal officers Hamilton has not been infallible. Thus, in The Federalist No. 77, he expressed the view that officers appointed by and with the advice and consent of the Senate could be removed only with the consent of that body. The Great Debate of 1789 proved that he was wrong on this score and that such officers could be removed by the President alone. And, as a letter written by James Madison in 1829 indicates, Hamilton changed his view of the Constitution on this point.

During the first formative years following adoption of the Constitution there occurred at least three incidents which indicated that Hamilton's views as to the exclusive nature of impeachment were not shared by his contemporaries. The

First Congress not only rendered the decision of 1789 with respect to the removal of Presidential appointees. It also provided in section 21 of the Act of April 30, 1790, that a judge convicted of accepting a bribe "shall forever be disqualified to hold any office of honour, trust or profit under the United States." This statute thus had the effect of removing a judge upon a criminal conviction and without impeachment proceedings. It was passed by a Congress many members of which had attended the Constitutional Convention, as had President Washington who approved it. Alexander Hamilton, then serving as Secretary of the Treasury, apparently raised no objection to the bill.

The second pertinent incident occurred in 1796. A petition presented to Congress by inhabitants of the Northwest Territory lodged serious charges against a territorial judge, who held office during good behavior. The House of Representatives asked Attorney General Lee for his advice on the proper method of proceeding against the judge. The Attorney General responded that the charges were so serious that if the judge were convicted, "a removal may and ought to be a part of punishment." He continued that since judges held office during good behavior, they could not be removed until lawfully convicted of some official misconduct. Such conviction could be obtained in three ways: upon information, upon indictment, or upon impeachment before the Senate. He considered impeachment to be generally the best suited, but not the exclusive, method of trying judges. Here, he felt that impeachment was not advisable since the witnesses resided about 1500 miles from the seat of the Government, and therefore recommended that the trial be held before the Supreme Court of the Territory upon either information or indictment. The House Committee in charge of the matter submitted a report concurring in that recommendation.

The third pertinent incident relates to President Adams' Circuit Court Act of 1801 and its repeal under the Jefferson Administration in 1802. The Judiciary Act of 1789 established circuit courts, but did not provide for circuit judges. Instead, the circuit courts were held by panels composed of Supreme Court Justices and district judges. President Adams' Circuit Court Act of 1801 provided for the appointment of specific circuit judges. However, in view of the unpopularity of that statute with President Jefferson's Republican Party, the 1801 Act was repealed in 1802 with the intended effect that the circuit judges' commissions terminated when their judicial offices were abolished.

During the debates, the Federalists argued that judges could be removed from their judicial positions only by way of impeachment and that no other method was constitutionally permissible. On that occasion Senator Stone carefully analyzed the pertinent provisions of the Constitution and concluded to the satisfaction of the Senate that under the Constitutional plan impeachment was not the only method for terminating judicial tenure held during good behavior. As a result of the repeal, the commissions of the circuit judges appointed under the 1801 Act were terminated when the 1802 repeal legislation went into effect, and the circuit courts were again comprised of Supreme Court Justices and district judges until the Circuit Courts of Appeals were established in 1891.

During the first thirteen years under the Constitution there were thus three instances in which the impeachment provisions of the Constitution were not considered to be the exclusive method for ending a judicial tenure. Admittedly during the following 158 years, Congress took no new action in this field. Nevertheless, the provision of the 1790 Act calling for the disqualification of a judge as a consequence of a criminal conviction for bribery was incorporated in the Revised Statutes, the Criminal Code of 1909, the 1948 enactment of title 18, United States Code, into positive law, and the 1962 revision of the Bribery and Conflict of Interest provisions of that title. The Senate report on the 1962 Act specifically refers to the disqualification of judges as the result of criminal conviction.

Moreover, the first thirteen years of experience under the Constitution were important years in determining the meaning of that document. The Supreme Court so stated in Stuart v. Laird (1 Cranch 299 (1803)). The case arose under the 1802 Act which repealed the Circuit Court Act of 1801. Stuart, the plaintiff in error, sought the review of a judgment rendered against him by a circuit court composed under the 1802 Act of a district judge and Chief Justice Marshall sitting as a Circuit Justice. One of the assignments of error was that Justices of the Supreme Court were ineligible to sit as circuit judges because they had not been appointed to that office, and held no commission to that effect.

The Court could have taken the position that the reinstatement of the old circuit courts was an integral part of scheme to remove the circuit judges ap

pointed under the 1801 Act in violation of the good behavior clause of the Constitution. Instead the Court upheld the service of Supreme Court Justices on the circuit courts on the ground that

practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.

This practical exposition test can also be applied to the question whether under the Constitution impeachment is the exclusive method for the removal of judges. Three times during those formative years the Constitution was interpreted as permitting other methods of removal. For the purpose of determining the meaning of the Constitution, I suggest that the action taken and the experiences gathered during the years immediately following the adoption of the Constitution balance, if not indeed outweigh, the inertia of the following decades.

I therefore conclude that in our Constitutional plan impeachment was not intended to constitute the exclusive method for the removal of judges who violate the good behavior requirement.

I have mentioned before that historically the forfeiture of an office held during good behavior was determined in judicial proceedings. Nothing indicates that the Constitution intended to change this rule of law. The argument has been made that the forfeiture of an office held during good behavior by way of scire facias was an obscure common-law procedure of which the Founding Fathers were unaware. A perusal of the papers of John Adams, however, indicates that American lawyers of the second half of the XVIIIth century were well informed of the intricacies of common-law procedure. Indeed, Blackstone states that the writ of scire facias was the remedy to revoke a royal patent where the patentee had committed an act that constituted a forfeiture of the grant.

Attorney General Lee's opinion indicates that he was fully aware of this legal background. He regarded impeachment as a "most solemn" trial before the Senate, but essentially a judicial proceeding.

The Department of Justice therefore agrees with the theory underlying Title I of S. 1506, viz., that under the Constitution impeachment is not the exclusive method for the removal of judges, and that judicial proceedings may be utilized to determine whether a judge has violated the requirement of good behavior. We do have minor doubts as to several aspects of the plan, but these are matters which arise out of the mechanics of this particular plan, rather than out of the idea itself.

Proposed 28 U.S.C. 378(d) (p. 5, lines 5-8) would provide that if the Commission on Judicial Disabilities and Tenure should recommend to the Judicial Conference the removal of a judge, the Commission should in effect suspend that judge. It might be fairly questioned whether a basically investigatory body, even if composed of judges, can be given power to suspend an Article III judge prior to his removal. I realize, of course, that the Adiministration's Court Reorganization bill for the District provides both suspension and removal by a Commission, rather than by a court. However, that bill also expressly states the Article I origin of the local court, thus placing the judges in an entirely different status than federal judges.

The second question relates to the issue of whether the Supreme Court can review a determination of the Judicial Conference certifying a judge for removal. I do not believe it is possible to state categorically whether or not the Court has the power to do so, especially since some facets of this question are now before the Supreme Court in the Chandler case. I believe, however, that I should mention the existence of this Constitutional problem. Marbury v. Madison pointed out that the Supreme Court can exercise its jurisdiction only, originally, in those cases enumerated in the Constitution, or, on appeal, from the decision of inferior courts. The review of determinations of the Judicial Conference is not included in the Constitutional grant of original jurisdiction, and the Judicial Conference, as it is now constituted, is not a court.

As I indicated previously, the Chandler case involves the analogous issue whether the Supreme Court can review rulings of a Judicial Council of the Circuit. An amicus curiae brief submitted by the United States in that case argues for the jurisdiction of the Supreme Court based on the fact that the Council was acting as a court. That position, however, is based at least in part on the fact that the Judicial Council of the Circuit is actually the Court of Appeals sitting en banc. That line of reasoning does not extend to the Judicial Conference.

These potential difficulties and some others resulting from the somewhat involved procedure envisaged by the bill could be obviated by a slight modification. Provision could be made for an investigation by a commission composed of judges, for actual decision on the removal by the Judicial Conference, or a committee thereof, designated for that purpose as a court of the United States, and finally for review by the Supreme Court. Consideration might be also given to an alternative plan which would provide (1) for the investigation and presentation of charges by a single officer, who could be appointed for a given case, perhaps by the Director of the Administrative Office of the United States Courts; (2) for trial before a standing panel of federal judges, which the statute would constitute as a court of the United States; and (3) for review by the Supreme Court on writ of certiorari.

Precedents for such a special court of the United States staffed with judges of other federal courts are the former Commerce Court and the Emergency Court of Appeals. Moreover, it was established in Glidden Co. v. Zdanok, 370 U.S. 530 (1962), that the tenure requirements of Article III, section 1 of the Constitution are met if a court of the United States is staffed with judges serving during good behavior; it is not required that their appointment to the particular court be for service during good behavior.

These, however, are matters of detail and do not go to the fundamental plan of Title I of S. 1506. With that, the Department of Justice has no quarrel.

II

I shall now discuss the provisions of S. 1506 dealing with the involuntary retirement of judges for disability.

Existing law deals with two aspects of judicial disability. A disabled judge may retire voluntarily. In that event he becomes a senior judge and can perform judicial duties only by designation and assignment. If a disabled judge does not retire voluntarily, the proper dispatch of business may suffer and require the appointment of an additional judge. In that event, 28 U.S.C. 372(b) now authorizes the Judicial Council of the Circuit to certify these facts to the President, who thereupon may appoint an additional judge. 28 U.S.C. 372 (b) suffers from two infirmities: first, the Judicial Councils have been reluctant to certify the disability of their colleagues, and second, the disabled judge does not become a senior judge; hence, he retains the power to perform judicial duties without special designation and assignment. There are obvious dangers in having a mentally incapacitated judge signing orders ex parte.

S. 1506 would provide in effect that a disabled judge could be involuntarily given the status of a senior judge. In that event he would retain the salary of his office and would have an enforceable right to be assigned to such judicial duties as he is willing and able to perform.

These provisions of the bill manifestly touch on an extremely delicate area. We believe, however, that they reconcile in a constitutionally permissible manner the divergent interests of the public in an efficient and at the same time independent judiciary and those of the judiciary in protection against unwarranted interference with its activities as well as against the vicissitudes of illness and old age.

For a number of reasons which I shall discuss briefly, the problem of disabled judges holding office during good behavior assumed serious proportions only at the time of the Constitutional Convention. Hence, there is no historical experience and no precedent which could indicate to us whether the procedures set forth in compulsory retirement provisions conform with the general Constitutional plan. I have mentioned earlier that tenure during good behavior was by no means rare in England and that it goes back to the Middle Ages. Hence, it could be assumed that there would be a large body of law and experience dealing with the problem of superannuated officeholders under that tenure. Astonishingly enough, this is not the case. This is probably due to the deputy system pursuant to which officers other than judges of courts of record could appoint deputies for the performance of their official duties. Hence, if the officeholder became incapacitated he could appoint a deputy, and if the latter became disabled another one could be substituted for him.

I have also mentioned before that non-attendance of an office held during good behavior resulted in its forfeiture. This, however, was the case only if the nonattendance was the result of voluntary negligence, or willful. Hence, there are a few cases suggesting that nonperformance of the duties of an office due to illness