THE INDEPENDENCE OF FEDERAL JUDGES THURSDAY, APRIL 9, 1970 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to recess, at 10:15 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman) presiding. Present: Senator Ervin. Also present: Rufus L. Edmisten, chief counsel and staff director; Marshall Lancaster, professional staff member; 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. Mr. EDMISTEN. Mr. Chairman, the first witness is Judge Walter E. Craig. U.S. district judge of the U.S. District Court, Phoenix, Ariz. Judge Craig was former president of the American Bar Association. Judge Craig. Senator ERVIN. Judge, it is good to see you again. I want to welcome you to the subcommittee and express our appreciation for your willingness to come and give us the benefit of your observations and views on the matter we are considering. STATEMENT OF WALTER E. CRAIG, U.S. DISTRICT JUDGE, U.S. DISTRICT COURT, PHOENIX, ARIZ. Judge. CRAIG. Thank you very much, Senator. I had hoped to have a prepared statement to submit to you, but unhappily, the business of my court was such that I did not have time to do it. So I hope that I will be able to contribute a little something. I think most of what I Lave to say is probably to some degree redundant. I think it is pretty well covered by your own statement and the discussions of Tuesday. With respect to the subcommittee's function on separation of powers, let me express this thought. It seems to me that the judicial System of the United States is one that lends itself to a like sort of thing as does the Federal Government in the sense of separation of powers. That is to say that the Supreme Court of the United States, eing the Court of last resort, has a very definite function in the ystem. The appellate courts of the United States have a very definite function in the system and the district courts, the trial courts, have a very definite function in the system. Each function is separate from the other. And I think for the success of the system, it is well to keep that in mind and to keep those functions separated. I recall that Tuesday, Judge Lumbard spoke about inherent powers and the function of the courts of appeals in, in effect, controlling the business and the operations of the district courts. I respectfully disagree with Judge Lumbard in that respect. Title 28, United States Code, section 137, provides the business of a court having more than one judge, and this relates to the division of business among district judges. The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. Now, I take that language to mean it is the rules and orders of the district court and no other court. The chief judge of the district court shall be responsible for the observance of such rules and orders and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. The duty there is expressly placed by Congress upon the chief judge of the district to carry out the business of the court. The final paragraph says: If the district judges in any district are unable to agree upon the adoption of any rules or orders for that purpose, the judicial council of the circuit shall make the necessary orders. I have never known that last paragraph to be put into effect where it has been necessary for a district court to go any place but to its own judges. This, I think, if nothing else, dispels Judge Lumbard's thought with respect to any inherent powers. In the ninth circuit. and in Arizona, we are thrice blessed, I think, in having Judge Chambers as the chief judge of the circuit. Judge Chambers' attitude is, you fellows take care of your business and we will take care of ours; if you need any help, call. And that is the end of it. So we have no problem of any division of thought with respect to how the respective courts should be administered. Senator ERVIN. It seems to me, Judge, that there is a portion of section 331 of title 28 that is in harmony with the views you express. because in the fourth paragraph, speaking of the Judicial Conference of the United States, it says: The Conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary and shall submit suggestions to the various courts in the interest of uniformity and expedition of business. It does not say shall issue orders. Judge CRAIG. No, sir; that is quite right-it refers to suggestions. Senator ERVIN. Submit suggestions. Judge CRAIG. And in most instances, the suggestions are most welcome, but they are not made in the sense of an order. You mentioned, Senator, in your opening statement a bill currently pending, being Senate bill 1506, I believe, the Tydings bill, with respect to a commission charged with responsibility for investigation and discipline of judges who are charged with misbehavior or senility or other disabilities. I have served for about 3 years on a committee of the ninth circuit on that subject. You may be interested to know that the Ninth Circuit Judicial Conference at its last meeting voted against S. 1506. The vote of the conference was based on the proposition that there was serious question as to the constitutionality of the proposed statute on two grounds-one, with respect to the impeachment process, it being felt that the Constitution. foreclosed any other method. On our committee, at least, more important than that was the feeling, unanimously, of the committee that the bill as drafted lacked due process. You mentioned, I think, Tuesday, the possibility of prejudging and I think that is exactly what that bill contemplates, because it is the commission itself that decides under that proposed statute whether or not there is going to be an investigation. They have to look at something to make that determination. There is their first decision. Then again, they subsequently sit as judges. Therefore, the committee as a whole felt in that area that the bill was faulty. Now, I have been around long enough to know that constitutional scholars differ in opinion and I suppose there are many scholars who say that the bill actually is constitutional. I remember going through the debates on the 25th amendment on that subject. This is a similar type of argument. The scholars were divided. But our ultimate conclusion was that if the scholars were divided, it was no time to test it when the problem arose, and, therefore, let's go the constitutional route and be sure rather than going the statutory route and leaving it open to question. As I previously stated, I think if we bear in mind throughout these discussions the separate functions of respective courts, the fact that we are seeking men of equal quality in all of the positions, each having an entirely different function to perform, we will get away from some of the minor bickerings that may go back and forth between the respective courts. This is one reason I think there is a considerable feeling that if there is any distinction in pay between the several branches, it ought to be minimal; that with respect to the functions, if the district courts' functions are so vital to the system, it is equally vital as the appellate system; the judges work just as hard and they are looking for a quality of judge equal in ability and, therefore, there is considerable thought that they ought to be compensated in the same fashion. I have little more to say, I think, unless somebody wants to ask Some questions. Senator ERVIN. I am very much interested in the reaction of your circuit, that the circuit judges took, in respect to the Tydings bill. I have difficulty reaching any conclusion except the conclusion that the proper interpretation of the Constitution is that Federal judges hold office during good behavior, and the judge is in good behavior as long as he does not commit one of the offenses as defined in the Constitution as grounds for impeachment. It seems to me this is the only rational conclusion you can come to on that subject. Judge CRAIG. I would certainly concur. Senator ERVIN. Then you have in addition to that the fact that this matter was very seriously considered during the Constitutional Convention, and several alternate plans were suggested and every one of them was rejected by the Convention. Judge CRAIG. You are quite right. Senator ERVIN. This certainly tends to support that position. But it seems to me that irrespective of that, one of the most overriding purposes of the Constitution was to establish the independence of the Federal judiciary-not only to establish the independence of the Federal judiciary, or of the President, or of the Congress, but to establish the independence of the judiciary from the different echelons of the judiciary except in the case where different action was required by the dependence of the action on judicial review. I often say that to remain a free society, we have to put up with a lot of inconvenience at times. Judge CRAIG. I agree. Senator ERVIN. And if we are going to have freedom, we are going to have to let people act foolishly as well as wisely; otherwise, we are not going to have any freedom. The same thing applies to independence. It seems to me that proposals of this kind can be abused by a private individual just as by a judge, and I think it is better at times to put up with a little senility and things like that as the price of maintaining the independence of the judiciary. Judge CRAIG. I think I concur. I might say this: I think as every other judge, when he first ascends the bench, he is pretty well frightened. To this end, I have come to the opinion that probably no judge should be appointed until he has had a minimum of 15 years of active practice of the law and a good portion of that in trial work. I would even go so far as to say, 20 years maybe. I had 28 and I was glad I had every year of it. But when I did finally ascend the bench, what I was remembering was the good judges that I had appeared before. I learned in the "pit," so to speak, what a good judge was, how he acted. I tried to pattern my conduct on the bench after my recollection of good judges, and I had appeared before some very able ones, both in Arizona and California and elsewhere. I think the Ninth Circuit Judicial Conference in its action not only considered constitutional questions in reaching its conclusion, but it was also generally the concensus of those in attendance that it simply was not needed. Now, if we look at the history of this sort of legislation, I think probably the leading State is California. That was the first one that really put it into effect solidly. They had an entirely different problem confronting them. They did not have the selection process that the U.S. Government has in its system. And you will find that true in other States, particularly in the States where judges are elected for reasonably long terms, in some States, even under the party system, as a result of a direct primary. Well, that does not guarantee any quality necessarily on the bench. Certainly, you can say the fellow is a reasonably good politician or he would not make it. But when they get a judge under the elective system, particularly in a reasonably well-populated State, the inclination is to vote for the |