Miller, Arthur S., professor of law, The George Washington University, "Legal Status of the Judicial Conference of the United States and the Judicial Councils and Judicial Conferences of the Several Circuits," memorandum, March 31, 1970_. "S. 1506, 91st Congress, First Session," memorandum, May 20, 1970. New York County Lawyers' Association Report No. F-1 on S. 1506 and Ogg, Frederic A., and P. Orman Ray, "Impeachment," excerpt from Poff, Hon. Richard H., U.S. Representative from the Sixth Congressional President's Commission on Law Enforcement and Administration of Ray, P. Orman, and Frederic A. Ogg, "Impeachment," excerpt from Shipley, Carl L., attorney at law, of the firm of Shipley, Ackerman & "Federal Impeachments" (concluded), 64 University of Pennsyl- Stolz, Preble, professor of law, University of California, Berkeley, "Dis- Traynor, Hon. Roger J., chief justice, Supreme Court of California, United States District Court, Western District of Missouri, "Proposed Vanderbilt Law Review, "Removal of Federal Judges-Alternatives to Page 1047 1053 1057 1064 1071 938 990 212 1083 1092 990 1094 1103 896 1121 1144 441 1158 529 1166 240 Wright, Charles Alan, professor of law, University of Texas, "The Doubtful 1186 NEWS ARTICLES Page Albright, Robert, "Senate Group Seeks Statute tɔ Oust Unfit U.S. Judges," 1196 1197 "Burger Silent on Judge's Conflict Role," April 10, 1970.. Behrens, Earl C., "Lawyers Pass Proposal for a Merit System," San Francisco Chronicle, October 8, 1968. 1198 1200 Denniston, Lyle, "Judges Cancel Plan to Curb Outside Work," The Evening 1200 Evening Star, The, Washington, D.C., "Ervin Hits Judges' Panel for 1202 "Judge advises tightening of discipline for Jurists," April 8, 1970. "Panel on Judicial Ethics Offers Rules," June 23, 1970... Graham, Fred P., "U.S. Judges Told to Disclose Fees," The New York Times, March 19, 1970. 1202 1203 1204 Law Journal-Record, The, Oklahoma City, Oklahoma, "New York Bar 1205 MacKenzie, John P., "Broadened Power for Juries Rejected," The Washington Post, November 4, 1969. 1206 "Federal Judicial Panel Orders Public Report on Outside Pay," March 19, 1970___ 1207 "House Group Finds Court Erred in Ousting Judge," December 18, 1969. 1207 "Judges Oppose Senate Curbs on Legal Help," November 3, 1969.. 1209 1210 1211 1211 Naughton, James M., "Burger Names 10 to Oversee Ethics of Federal 1212 Tulsa Tribune, The, Tulsa, Oklahoma, "Chandler Lashes at Circuit Courts,' Osnos, Peter, "Judges Tell Little of Outside Income," The Washington 1213 1214 Virginia-Pilot, Norfolk, Virginia, "Judges Won't Have to Reveal All," 1215 Wall Street Journal, The, "Judicial Ethics," editorial, November 7, 1969.. 1216 1216 "Judge Sits in Case While Owning Stock," August 1, 1970. 1217 1217 1218 "Senators Attack Judicial Conference for Comment on Pending Measures," November 11, 1969.. 1218 ""State of the Judiciary' Report," editorial, January 6, 1970....... 1219 1220 Wilson, Richard, "Burger Readies State-of-Judiciary Report," The 1221 BIBLIOGRAPHIES Fish, Peter Graham, assistant professor of political science, Duke Uni- 942 983 984 1064 THE INDEPENDENCE OF FEDERAL JUDGES TUESDAY, APRIL 7, 1970 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 2228, New Senate Office Building, Hon. Sam J. Ervin, Jr. (chairman) presiding. Present: Senators Ervin and Mathias. Also present: Rufus L. Edmisten, chief counsel and staff director; Marshall Lancaster, professional staff member; Prof. Philip B. Kurland, chief consultant (University of Chicago); Prof. Arthur S. Miller, consultant (George Washington University); and Prof. Ralph K. Winter, Jr., consultant (Yale University). Senator ERVIN. The subcommittee will come to order. This morning the Judiciary Subcommittee on Separation of Powers begins 2 days of hearings on the Judicial Conference of the United States and the judicial councils of the circuits. These hearings come at a time when the Congress is being urged to place new restrictions on Federal judges to require that they disclose their personal investments, and to allow select Federal judges to impose sanctions on their colleagues. No less than 27 bills designed to discipline Federal judges are now before the House and Senate. Many of them contain provisions that would strengthen either the Judicial Conference or the circuit councils. It seems to me that the Congress should not rush into enacting these proposals. We should proceed with the utmost care in contemplating changes in our system of justice. We must realize that although they attract great publicity, the misfortunes of the Federal courts are rare, and may well not warrant repressive legislation across the board. I think the Nation's Federal judges deserve our confidence. In the overwhelming majority of cases, they are not corrupt or incompetent men. On the whole, our Federal judiciary constitutes the best court system ever devised. For more than 200 years a majority in the Congress has fought to maintain the independence of our judiciary-an independence that protects the public and the rule of law rather than the judges themselves. We have sought to guarantee that no outside influence can invade a judge's chambers or determine how he decides a case. These 27 bills, to one extent or another, would undermine that independ ence. Some of them, while well-intentioned, would introduce new extra-judicial influences into the Federal court system. It may be that the Congress is prepared to sacrifice judicial independence in order to impose guidelines on judicial behavior; but if that is the case, the issue should be stated in those terms, not in the glowing language of making improvements in the administration of the courts. And before the Congress acts, I believe that the existing agents of judicial housekeeping the Judicial Conference and the circuit councils should undergo the most careful scrutiny. It may be that we do not want to entrust them with more authority. The Judicial Conference and the circuit councils are our measuring sticks. If we find that they have misused their power, we should remember those misuses when we are asked to grant even more authority to them-or to any supervisory body that might presume to tell a Federal judge what to do. No doubt we shall find that the Congress and the executive departments have themselves encouraged the Conference and councils to assume extra-statutory roles by persistently asking them for opinions on pending and proposed legislation. The practice by the Department of Justice, whose attorneys argue before every Federal court in the Nation, of submitting draft bills to the Judicial Conference for consideration is particularly disturbing. I would suggest that instead of submitting proposals to the Judicial Conference, the Justice Department submit them to the Congress, which holds all legislative powers. At the start of these hearings, I want to emphasize that even if we do establish that the Judicial Conference or the circuit councils have expanded their powers beyond statutory limits, we shall not have distinguished them from other agencies in the Government. Nearly every bureau in Washington seems to have an affinity for building empires, which is occasioned by the insatiable thirst for power of well-meaning men. But before we lightly excuse any of their actions or unduly condemn them, we should remember that the Conference and the circuit councils are composed of judges, men who hold a special respect for the law-the law as Congress intends it. Theirs is a heavy responsibility. The aim of our hearing, then, is to reexamine the premises underlying the Judicial Conference and circuit councils, and to compare the actual congressional mandates of those bodies with the mandates which they often assume that they have. In this investigation, we shall be holding the Judicial Conference and the circuit councils to full account for their actions for the first time since their creation. And we shall be asking questions about judicial independence which seem to have been forgotten in the headlong rush to enact legislation restricting Federal judges. The subcommittee's first task in this inquiry is to determine exactly what the Congress intended that the Judicial Conference and the circuit councils should be. I will now trace for the record the legislative history of the creation of the Judicial Conference in 1922. The idea for a Conference of Senior Circuit Judges, as it then was called, arose in response to one of the most severe case backlogs in the history of the Federal courts. In 1920, the average Federal court docket in the United States contained 1,500 cases. In New York City, justice had collapsed; with only four district judges for a population of 4 million, the backlog was 20,000 cases per judge. Most of this enormous backlog was attributed to increased prosecution under the so-called "morality laws," the Mann Act and the Volstead Act. The Federal courts in 1920 faced a breakdown. After a lengthy study, Congressman Joseph Walsh, of Massachusetts, came forward with a tentative solution. He introduced H.R. 9103, a bill to create additional district judgeships and to establish what is now known as the Judicial Conference of the United States. The creation of the Judicial Conference must be viewed in the context of this enormous backlog. Congressman Walsh, speaking on the House floor as he introduced his bill, gave this as the reason for the annual conference of senior circuit judges: 1. In order that they may relieve the congestion and accumulation of arrears. It was also felt that this conference of judges called together might arrange a little more uniformity in the matter of sentences perhaps and in the method of dispatching business in the various courts, the conference so-called to have no inquisitorial powers, and not to impose any regulations of a mandatory character; but it was felt that if these justices could confer once each year and with such district judges as might be called in, it would result in uniformity and tend toward the dispatch of business. This was the purpose of the Judicial Conference: to help clear up the severe case backlog and to encourage uniformity in sentencing and court administration. As Congressman Walsh envisioned it, the Conference was to be a docile housekeeper in the Federal courts. If we need any further evidence of this purpose, we have only to read a letter from Chief Justice William H. Taft to Attorney General Daugherty. Writing from Montreal on July 3, 1921, Taft said: It might be well to have a conference each year at a convenient season of the Chief Justice, the Senior Circuit Judges and the Attorney General at Washington to consider the prospect for the year and to make all possible provision for it. This conference could also make recommendation to the Attorney General as to the need of additional Judicial force and where and of what rank so that Congress might have the benefit of judgment formed on nothing but the need of service. . . Taft reaffirmed this central purpose of the Conference at hearings before the Senate Judiciary Committee, when he said: This council does not do anything but take up and consider and deliberate on and agree among themselves what shall be done with reference to meeting the arrears of the particular court. In the final House debate before passage of the bill, the Judicial Conference's sponsors repeated to the point of redundancy that the Conference's sole purposes were to make provisions for transferring judges from one district to another in order to clear heavy dockets, and to encourage uniformity in court procedures by improving communications between judges. Many charges were raised in the final hour of debate by the bill's opponents-charges that the Conference meetings would amount to "judicial junkets" at taxpayer expense and that the Conference would deteriorate into a "publicity-seeking propaganda effort." These |