A quotation from a statement by Senator Ervin to the Senate Judiciary Subcommittee on February 15, 1966, shortly after the order was entered by the Council puts the matter in focus: "The action of the Judicial Council of the Tenth Not only this Court but all courts are now on trial by the public. A failure to resolve this matter may be considered an implicit approval by this Court of the deliberate usurpation of power by the judges who are Members of the Tenth Judicial Council. It amounts to a "Star Chamber" Bill of Attainder against a named federal judge (United States v. Archie Brown, 381 U.S. 437, 14 L.Ed.2d 484, 85 S.Ct. 1707). The original nationwide publicity incident to this case aroused great public interest and concern which the delay in adjudication has increased. The public is entitled to know what this Court thinks. The public is entitled to know whether the Circuit Judges were derelict or whether Judge Chandler was. And, of course, all United States District Judges are quite anxious to know whether they can now be disciplined like schoolboys and have no recourse in this Court. The Judicial Council has broken through the jurisdic tional boundaries imposed upon the entire judiciary by the Constitution and has transgressed the impeachment powers of the Congress and deprived Judge Chandler of his constitutional rights under Article III, Section I. There is no defense for such abuse of power and it is important that this Court act at once to redress the wrong. Respectfully submitted, CARL L. SHIPLEY 1108 National Press Building Washington, D. C. 20004 Amicus Curiae Of Counsel: SHIPLEY, AKERMAN & PICKETT National Press Building Washington, D. C. 20004 June 11, 1969 52-459 O 71 58 (Source: Professor Harold W. Chase, professor of political science, University of Minnesota, "Federal Judges: The Appointing Process," unpublished.) Chapter 6-CONCLUSIONS Evaluating the appointing process is no easy matter. On its face, the process appears plausible enough, but one which inevitably allows the courts to be infested with mediocrities and more than occasionally plagued by the appointment of scoundrels. Many an august voice has been raised to give credence to such an assessment. Erwin Griswold, while yet the Dean of the Harvard Law School, did not exempt the federal judiciary from his condemnation of the selection of judges in his annual report of 1964: "The basic complaint goes back to the fact that the generally controlling basis for the selection of judges in this country is political, whether they are chosen by appointment or by election. The result is that many persons become judges who, no matter what their other qualifications may be, are not well qualified for judicial office. "It is clear that this has a serious adverse effect on the administration of justice, and that this is well known and generally resented by large numbers of practicing lawyers." Likewise, former Attorney General Herbert Brownell presumably did not exempt the federal judges from his jaundiced evaluation of the American judiciary: "Justice in this country is suffering because we are not getting the best qualified lawyers as judges. . ." "Let's look at the present state of our judicial establishment. The real trouble is not venality or corruption. True, there probably are a few corrupt judges .. But the incidence of wrongdoers is probably lower among the judiciary than elsewhere. . . ." "The problem, then, is not corrupt judges. The problem is mediocre judgesthe men whom one distinguished judge has described as the 'gray mice' of the judicial establishment. What are the characteristics of these many 'gray mice'? Like other mice they are unobtrusive, they have not distinguished themselves in law school or college. Their practice has generally been a limited one and their general legal experience not well rounded. Although they rarely win distinction in professional or learned organizations, they do belong to an astonishing array of fraternal, military and other groups. "But above all else they belong to their local political club and are cheerful in performing the interesting assignments their 'leader' has for them. They are exemplary in their loyalty to their political party. They look on judicial appointment as the reward for their loyalty and devotion to the party, and they look forward to judicial service as socially and financially rewarding. To them the courthouse is a cozy rest home. In other words, they are ordinary, likable people of small talent. They are not venal, not corrupt, but they can do a great deal to debase and cheapen the entire administration of American justice." 2 As these critics see it, the vice of the present system is the political nature of the process of judicial selection in America. To quote Brownell again: "Why are there so many of these mediocre judges? Because of the way judges are selected. In theory, some judges are appointd by a President (in the federal system), a governor (in a state system) or by a mayor. Others are elected. As a matter of hard fact, judges are in most instances picked by political leaders. This is quite obvious in the case of selected judges ... "But isn't the situation different where the judges are appointed by a President, governor or mayor? Surely these leaders take seriously their high responsibility for the administration of justice and make their own appointments. In general, it may be assumed this is so. But these appointing officials are under many pressures, political and otherwise. Even the President still must have his candidate approved by the two senators from the candidate's state. By virtue of 'senatorial courtesy,' these senators may successfully prevent confirmation of the candidate by the Senate. Senators are rightly highly political animals and do not lightly disregard the desires of the political leaders back home." 3 1 Washington Post, September 18, 1964. 2 Herbert Brownell, "Too Many Judges are Political Hacks." Saturday Evening Post, April 18, 1964, p. 10. 3 Ibid. Do the facts support such alarming assessments as they pertain to the federal bench? Unfortunately, no satisfactory objective and/or "scientific" method has been devised to answer that question. At an early stage in this study, valiant efforts were made to devise objective criteria for rating sitting judges. It was thought that in view of the hierarchical arrangement of the federal courts which permit higher courts to review cases which are brought to them from lower courts, the percentage of cases in which a lower court was reversed by a higher court might be a valid objective indicator of performance by the lower court. Experimentation and consultation with sitting judges made clear that such was probably not the case. First, such analysis assumes that the higher courts are usually "right" when they reverse and there is no objective basis for such an assumption. Second, as many judges pointed out, such an analysis does not take into account that it is the creative judge(s) and the innovator(s) in the law who is often reversed, that the timid judge (s) who relies heavily on precedent will be least likely to be reversed. In lieu of better methods beyond the ken of this researcher, it was decided to take a random sample of thirty lawyers who appeared in the federal courts in each of the following states: California, New York, Georgia, Virginia, Missouri, Texas, and Minnesota, and ask them to rate the sitting federal judges. The sample was procured by a visit with clerks of the appropriate courts and making a random selection from their card files or lists. The sample was then interviewed. Candor was not lacking. Once assured of confidentiality, the seriousness of the enterprise, and the fact that this was not a muck-raking enterprise, respondents were very frank in their appraisals. To be concise, these responses were reassuring. No one suggested that their federal courts were beyond criticism, but all respondents were satisfied that the federal courts in which they practiced were on the whole good or better. One very curious and common observation made to me upon conclusion of interviews was "we've been very lucky in our federal courts here in California, but they are very bad in New York," and in New York they would say they were lucky in New York but that the courts were poor in some other state. To repeat, my interviews led me to conclude that probably those who actually practiced in particular federal courts were generally satisfied with them. As I write, I am reminded of my ungallant friend who always replies to the question "How is your wife?" with "Compared to what?" The fact that lawyers practicing before federal courts find them "good" does not necessarily mean very much. What is their measure? An obvious comparison to make is between federal and state judiciaries. Without fail, the sample I interviewed rated the federal bench superior to the state bench. In several jurisdictions, the state's highest court was pointed to as a conspicuous exception to the lower rating of the state bench generally. The limited nature of the data makes any strong conclusion hazardous. I would not go beyond stating that the federal courts are probably in pretty good shape as to the general quality of the judges. This is not to suggest that there is no room for improvement and no room for suggestions as to changes in processes to bring that about. The rest of this chapter will be devoted to those matters. Suffice it to say here now that in my studied opinion, there is no grave emergency situation with respect to selection of federal judges. I feel that if there were, it would have become apparent in my interviewing just as it became apparent that in some state jurisdictions, judicial selection has become a disaster. Interestingly enough, interviews and observation have led me to the conclusion that, where a judge is regarded as unfit for the federal bench, it is not the fault of the selection process, but rather the Constitutional provision granting that federal judges "shall hold their offices during good behavior." I would estimate that roughly ten percent of the federal judges are incapable of doing a first-rate job due to disabilities of illness (including failing eyesight and defective hearing) and old age. Everywhere I visited, I was regaled with stories about at least one present or recent sitting judge who had to be "wired for sound and still couldn't hear," Cf. the more detailed comparison of the rating of federal and state judges by Texas lawyers done in the exceptionally fine work of Bancroft C. Henderson and T. C. Sinclair, The Selection of Judges in Texas (Houston, Texas, Public Affairs Research Center, 1965). But note that they write that "62 per cent of the lawyers in the sample said their practices were non-trial..." (p. 75). Their results were not so clearly in favor of the federal courts as I indicate, but they conclude "Thus in general the federal courts occupy positions of greater prestige than do the state courts." (p. 76). or "who had to feel his way around the courtroom because he couldn't see." But the important point to bear in mind is that in virtually every case when I asked what these judges were like in their early days in the bench, considered judgments were that they had been good judges. In some cases they had been among the most distinguished judges on the federal bench. Patently, old age is the real culprit. To get some measure of the problem, the table below indicates the ages of the federal judges sitting as of the first of the year 1966. It is significant that in an age when universities have found it imperative to save themselves from the disabilities of aging professors by making retirement mandatory at age 68, fifteen percent of all sitting district judges in January, 1966, were over that age. Note too, that almost half of the sitting circuit judges and forty-five percent of all sitting district judges were over 60. Perhaps, the problem of disability due to illness and age would not be a great problem, if there were practical and easy ways to remove federal judges who had become unfit on the bench. But there are none. Senator Joseph D. Tydings has explained fully and well why impeachment is not a suitable remedy to the problem : "Historically the only method of actually removing a Federal judge from office, so that he is deprived of his title and his right to salary, has been impeachment by the House of Representatives and conviction on the impeachment charge by the Senate of the United States. This has created many difficulties .. First, constitutionally impeachment lies only for treason, bribery, or other high crimes and misdemeanors.' It is uncertain whether senility, insanity, physical disability, alcoholism, or laziness-all of which are forms of unfitness that require remedial action-are covered by the impeachment process. "The second difficulty lies in the naure of the impeachment machinery. Even in the early years of the Republic the inadequacy of this process was recog nized. As early as 1819, Thomas Jefferson said: 'Experience has already shown that the impeachment of the Constitution as provided is not even a scarecrow.' It is a cumbersome, archaic process which requires one House of Congress, the House of Representatives, to act as a grand jury, and the other House, the Senate, to sit in judgment as a court. The House of Representatives can perhaps do its share of the work effectively through the Judiciary Committee, but what of the Senate? We all know that the Members of the Senate are hard pressed to fulfill the many demands of the office and of the constituents. If the Senate were required to do nothing but listen to testimony |