operation from Presidents Eisenhower, Kennedy, and Johnson. In the 1960 presidential campaign, it obtained pledges of cooperation from both candidates. Although Presidents have usually appointed only candidates designated by the Committee as qualified, some have been appointed who were rated as "not qualified."

Party considerations in the appointment of judges

Failure to select the best qualified judges is caused chiefly by the pressure on the appointing officer to select from among members of his own political party to whom he owes some political debt. Although a chief executive is concerned about maintaining his reputation by appointing qualified judges since he is primarily and publicly responsible for their selection-pressures within his party tend to control appointments in all cases except those in which the proposed appointee is totally unfit. The dominance of this factor in appointive selection was made strikingly clear in the 1961 annual report of the American Bar Association Committee on the Federal Judiciary:

Invariably, presidents have made their judicial appointments primarily from the ranks of their own party. Criticism of this practice goes as far back as the presidency of John Adams and Thomas Jefferson. Judicial appointments by Democratic Presidents Cleveland, Wilson, Franklin D. Roosevelt, and Truman ranged from 92 per cent Democratic by President Truman to 99 per cent by President Wilson. Judicial appointments by Republican Presidents Theodore Roosevelt, Taft, Harding, Coolidge, Hoover, and Eisenhower ranged from 86 per cent Republican by President Hoover to 98 per cent Republican by President Harding. These facts do not prove that all the appointments made in this way are bad. What they do suggest is that the best qualified judiciary is apt to be sacrificed for political purposes under an appointive scheme.

Legislative confirmation. In one-man selection there are virtually no restrictions at all upon the appointing officer. Even where judicial appointments must receive confirmation by some body independent of the appointing officer there is no substantial protection against inferior selections. At best, confirming bodies have only a veto power. While they may reject one appointee, they cannot be certain that the next appointee proposed will be any better qualified. In actual operation, Senate confirmation in the federal system works not so much to improve the quality of appointments as to make them political footballs. Senatorial objection, an important factor influencing federal judicial selection, is often made not on the ground that the nominee lacks the necessary qualifications, but explicitly on the basis that he is "personally obnoxious" to a Senator from his home state.

In brief, traditional elective and appointive selection methods have proved inadequate in furnishing a well qualified and independent judiciary. In competitive elections the voters have neither the interest nor the ability to participate intelligently; they only ratify politicians' choices which, in turn, are made largely on factors unrelated to the qualifications for judicial office; while in appointive selection, although a single appointing officer is better able to choose judges wisely, the system offers no continuing permanent body to advise the appointing officer, and it does not serve to limit the adverse effect of political pressures on judicial appointments.

Executive appointment and merit selection compared

The "Missouri Plan's" provision for a nominating commission retains the important advantage of the appointive scheme, that is, participation in the selection process of an authority qualified and able to assess judicial candidates. At the same time the nominating commission device avoids the instability inherent in voluntary cooperation between the appointing official and existing advisory groups by providing for a continuing official body to submit candidates to the appointing officer. The composition of the commission can be tailored so as to bring together people well equipped to assess judicial qualifications. A specific number of lawyers drawn from the community bring to the commission's deliberations their expert knowledge of the qualifications required for judicial office and of the legal ability of the candidates under consideration by the commission. Fair representation of all segments of the bar is usually assured by election of the lawyer members of the commission by all the members of the bar itself. The lay members, also drawn from

Eight out of 99 appointees were rated not qualified between August 1961 and August 1962; 1 out of 16 between August 1962 and August 1963; 3 out of 23 appointees between August 1963 and August 1964. Annual Reports of the Standing Committee on the Federal Judiciary of the American Bar Association, 87 A.B.A. Rep. 25 (1962) 88 A.B.A. Rep. 20 (1963) 80 A.B.A. Rep. 20 (1964).

the community, bring to the commission's deliberations their knowledge concerning the equally important non-legal qualifications necessary in a judge. The member of the judiciary usually included on the commission gives it insight into aspects of the judicial function with which outsiders could hardly be familiar.

In addition to creating a permanent body of well qualified persons to nominate candidates for judicial office, the nominating commission arrangement insulates judicial selection from the adverse effects of politics inevitable in appointive selection of judges. Since the appointing official's choice is limited to the nominees on the list submitted to him by the commission, it is largely unimportant if he chooses to select only nominees from his own political party, so long as the nominating commission submits only the best qualified possible appointees. Nonpartisanship on the commission itself is accomplished in a number of ways. The commission members are prohibited from serving as officers of a political party during their terms on the commission, and, if deemed necessary, it can also be required that a nominating commission be equally representative of both political parties, thereby achieving nonpartisanship through establishment of strictly equal bipartisanship. It is for these reasons that a governor of Missouri recently wrote: "The present system has resulted in a better administration of justice than previously prevailed." "10

JUDICIAL TENURE AND COMPENSATION

An adequate selection method meets only a part of the problem of maintaining an able and independent judiciary. Each of the basic methods of judicial selection has traditionally been accompanied by a method of retaining judges in office. Patterns of judicial retention

Retention of judges for life during good behavior is the method used in the federal courts and in several of the states. Although such a system assures security of judicial tenure, it is open to the criticism that it tends to produce a judicial autocracy over which effective control is difficult. The unethical or incompetent judge is frozen into office as well as the good one.

Re-election and its problems. By far the most widely accepted retention provision calls for the re-election of judges for short terms in partisan or nonpartisan competitive elections. Many of the criticisms already made of selection by popular ballot apply to this method of retention. Here again the voter has neither ability, information, nor inclination to assess the qualifications of a long list of judicial candidates, and the polls of state and local bar associations have proved largely ineffective. Judge Rosenman, who had served as chairman of the Judiciary Committee of the Bar Association of the City of New York, could report only "meager results" from that association's published reports on the qualifications of incumbent judges and other judicial candidates. The influence of politics is fully as strong in the retention of judges by election as in their initial selection.

Judicial retention by election, combined with short terms, operates to discourage able men from seeking judicial office, and once they achieve the office it may operate to remove them despite their doing a good job on the bench. Judicial elections are often affected by issues entirely unrelated to the qualifications of the incumbent judge. The late Fred L. Williams, an eminent Missouri jurist, is reported to have said that he was elected to his state's supreme court in 1916 because President Wilson kept the country out of war, but was defeated for re-election in 1920 because the President did not keep the nation out of war. Results like this can make an able lawyer reluctant to seek election to the bench because of the real possibility that, once he has given up a valuable law practice, he may be turned out of judicial office on the basis of quite irrelevant political issues.

Judicial elections, whether partisan or nonpartisan, may well be decided on a point as small and absurd as the name of the candidate. Justice W. St. John Garwood, now retired from the Supreme Court of Texas, recalls that in one campaign his opponent, little known in the state, received substantial support at the polls merely on the strength of his name, Jefferson Smith, which happened to be the same as that of the leading character in a then-popular movie, "Mr. Smith Goes to Washington." " A highly regarded judge in the state of Washington was almost defeated in 1962, in a so-called nonpartisan election, by an opponent with the politically significant name, Robert Kennedy. In the 1964 elections in another nonpartisan election state, a state supreme court judge was defeated by Paul Brown, a good name for football fans in that state. A jurist with sixteen years

10 Letter from John M. Dalton to the Texas Civil Judicial Council, 12/9/64.

"Garwood, Judicial Selection and Tenure-The Model Article Provisions, 47 J. Amer. Jud. Soc. 21 (1963).

of experience was defeated in an election during the presidency of Lyndon B. Johnson by an opponent whose last name just happened to be Johnson.

In some states attempts to achieve greater security of judicial tenure are made by encouraging political parties to give preference to incumbent judges when making up slates of nominees. For the most part, this scheme is inadequate because it is only voluntary. Sidney Schulman, writing of the Pennsylvania experience, has indicated the scheme's ineffectiveness in that state:

The policy of bipartisan, political support for "sitting judges" who have conducted themselves well in office has been accepted only to a limited degree by the political leaders in Philadelphia County. In most other counties this principle has been rejected and judicial contests are bitter fights. Noncompetitive re-election.-The third basic method of judicial retention and tenure, a companion to the Kales selection plan, attempts to retain the best features of both appointment for life and political reelection. Under this plan, an incumbent judge seeks retention in office at the end of his term by simply filing a declaration to that effect. His name is then placed on a ballot without opposition and the voters are asked whether he should be retained in office. The judge is required to submit to this type of noncompetitive re-election within a short period after his initial appointment and thereafter at the end of each successive term. This periodic merit retention plan serves a twofold purpose. There is no need for political campaigns. The only step the incumbent must take is the filing of his statement of intention to remain in office; his total expense is the price of a postage stamp. No judicial time is lost in campaigning, and qualified judges are not prevented from remaining in office simply because they lack political appeal on the campaign trail. Since the retention election is disassociated from political campaigns for other public offices, the chances that a judge will be removed from office on political grounds unconnected with his ability as a judge are greatly reduced. Judicial tenure is secured against purely political tides.

The second underlying purpose of the periodic merit retention provision is to reserve to the people a veto on judicial candidates, a privilege which is thwarted under appointment-for-life tenure. The public is rarely in a position know in advance how good a judicial candidate is, but if his record as a judge is outstandingly poor, the voters can ascertain the facts, and in the merit retention election they have a means of removing him.

The Missouri experience with merit retention of judges.-The Missouri experience has shown that the merit retention provision secures judicial tenure while at the same time reserving to the voters the possibility of removing unqualified judges. In the first four elections under the Missouri plan, it became clear that issues between political parties were no longer decisive on the tenure of judges. In the first election, in 1942, the state went Republican, but two Supreme Court judges, both Democrats, were retained by two-to-one votes. St. Louis went Republican but retained, by two-to-one votes, six circuit judges who were Democrats and at the same time confirmed for a full term the first circuit judge, a Republican, appointed under the then-new plan. In 1944, the state went Democratic, as did both Kansas City and St. Louis, but two supreme court judges, one from each major party, received substantially the same favorable vote, three-to-one for retention, and two court-of-appeals judges, again one from each major party, were retained. In Kansas City, a Republican probate judge was retained and, in fact, received fewer "no" votes than any of the six circuit judges, who were all Democrats.12 Subsequent Missouri elections have shown substantially the same results, and experience in other states has been similar. There was a Democratic landslide in Iowa as elsewhere in 1964, but all incubent judges, both Republicans and Democrats, were retained in office.

It has also been proved that the procedure of merit retention of office is effective in accomplishing the removal of unsatisfactory judges. A Kansas City judge who had first taken office during the reign of the Pendergast political machine in that city came up for re-election on a merit retention basis in 1942. A committee was organized to campaign for his removal from office, and he was defeated.

Judicial compensation.-For substantially the same reason that it is important to provide means of judicial selection and retention which do not place unnecessarily high demands on the financial resources of a would-be or incubent judge, it is also important that judicial office carry with it financial rewards equal to those comparable positions in the practice of law. One of the common measures of success of the practioner is his income during his active years, and the financial provisions for his retirement.

12 Hyde, The Missouri Plan for Selection and Tenure of Judges, 9 F. R. D. 457 (1950).

The state, as an employer of judges, is only one of several buyers in the legal job market. To attract to the bench the high quality of personnel required, it must be able to compete on a financial basis with corporate employers and privatelaw practice. Unfortunately, since World War II, judicial salaries have lagged behind compensation for comparable positions in the practice of law.

Judicial salaries.-Figures on the comparative incomes of experienced lawyers and trial judges in three representative states reflect the present situation. According to a State Bar of Michigan survey of lawyer income in 1962, private practitioners with five or more years of experience received an average income substantially higher than the lowest paid ($12,500) trial judge. A 1964 survey showed that lawyers in the city of Boston with ten or more years' experience earned $1,000 to $10,000 more than trial-court judges. Boston suburban lawyers' incomes exceeded the income of trial judges by even greater amounts. A survey by the Oklahoma Bar Association indicated that the 1959 average gross income of self-employed lawyers with ten or more years of experience exceeded the salary of the highest paid trial judge by amounts ranging from $1,000 to $13,000.

It would be a mistake to try to pay judges as much as the highest-paid lawyers earn. The state could not afford it, the salaries would be out of line with the compensation of other public officials, and there would be unseemly political scrambling for judicial posts. But salaries no higher than the earnings of lower-level practitioners cannot be expected to bring high-level talent to the bench. The judicial salary range should be somewhere well above the average or median of lawyer earnings.

Pension Benefits. A judicial compensation system adequate to attract wellqualified lawyers to the bench must include some provision for pension benefits after termination of service. All states now have such plans for some or all of their judges but many of these plans are inadequate as to coverage, or benefits, or both. The plan, at minimum, should provide retirement benefits computed on the basis of a judge's earning level during active service and be payable upon retirement at a certain age and after a certain minimum term of service. In addition, the plan should provide for benefits in the event of some disability which causes termination of active service before the judge's normal retirement age, and make some provision for the dependents of a deceased judge who would have been qualified either for disability or retirement benefits. Federal judges, on retirement, receive a pension equal to the full amount of their regular salary at the time of retirement. Most states are less generous, providing 75 per cent or 50 per cent or less, and some require contributions by the judges of more than 7 per cent of their salaries. Mandatory retirement of judges

Related to retirement benefits but designed essentially to protect the legal system from extreme advanced age and senility in judges are the commonly adopted provisions for mandatory or voluntary judicial retirement at a specified age. A simple voluntary retirement plan can do little to protect the legal system against judicial incompetence because of mental or physical incapacity due to age. A voluntary retirement plan can, however, be so designed as to encourage voluntary retirements, by reducing benefits if the judge chooses to retain his office after he has passed a certain age. Such a modified voluntary retirement plan is now in force in California.

Nearly half the states have provisions for mandatory retirement of judges at ages ranging from seventy, the large majority, to eighty in Louisiana.13 Mandatory retirement requires a judge's withdrawal at an age after which his efficiency and productivity can reasonably be expected to decline. Many states have arrangements by which a judge's post-retirement service is allowed, by call of some judicial officer. This device has been effective as a source of valuable judicial service in times of unexpected increases in judicial business. Mandatory retirement at a fixed age is sometimes objected to on the ground that it frequently deprives the state of competent judicial service that might still be given. The provision for post-retirement service as needed adequately disposes of that objection.

Removal and disciplining of judges

Provisions for mandatory retirement and for periodic review by the voters of a judge's performance in office are both designed in large part to safeguard against incompetence or unethical conduct in judicial office. These measures provide only limited protection, however, since they permit removal of unfit judges only at specified times.

13 Ala., Conn., Fla., Hawaii, Idaho, Kansas, Maine, Md., Mich., Minn., Mo., Nebr., N.H., N.J., R.I., Va., Wisc.-age 70; Iowa, S.C.-age 72; Ore., Va., Wash.-age 75.

Procedures for the removal and disciplining of judges can furnish additional safeguards of the quality of the judiciary. In most states these traditional means include imepachment, that is, indictment by one house of the legislature, trial by another, and removal upon conviction; address, that is, trial by a legislative body and request to the executive for removal; and recall, that is, a popular petition requiring a judge to run in a special election if he is to continue in office.

Defects of the traditional procedures. All three devices have glaring defects. They provide an inflexible remedy, outright removal, and hence are unsuitable for dealing with the most common types of judicial misconduct, which warrant some form of discipline short of removal. The infrequent use of impeachment and the other devices is due largely to this inflexibility in sanction. And these traditional measures are cumbersome because they require either the mobilization of entire legislative bodies or the preparation and circulation of popular petitions. In situations involving anything less than the most flagrant violations of judicial ethics or indisputable incompetency, legislators and citizens hesitate to take the trouble to initiate removal procedures.

Florida's experience with the impeachment of two of its trial court judges vividly exemplifies these problems. There were two trials by impeachment, one in 1957, the other in 1963. In each instance, special legislative sessions had to be called, since the legislature was too busy to dispose of the charges during its regular session. The cost of the two trials ran to approximately a quarter of a million dollars, over half the annual budget of the state's supreme court. Chief Justice Drew of the Supreme Court of Florida, who presided at one of the trials, noted that the forty-four-member legislative body that heard the impeachment charges was extremely unwieldy. His rulings during the trial were always subject to reversal by vote of the senate, only one-third of the members of which were lawyers. In addition to the excessive cost and the unwieldy nature of the proceedings, the remedy available proved to be too harsh in both cases. Despite the fact that many senators believed that the judicial conduct involved merited some kind of censure or discipline, the legislators acquitted both judges. Impeachment and address suffer from an additional serious defect. Both are essentially political and not judicial proceedings, and political considerations tend to take precedence. Because of the manifest defects in the traditional removal measures, those who have considered the subject carefully have long urged the adoption of additional procedures that will be both workable and flexible as to the measure of discipline to be imposed.

Disciplinary procedure in California.-California has adopted one of the more successful of these procedures and has now had substantial experience with it. A constitutional amendment adopted in California in 1960 created a Commission on Judicial Qualifications, composed of nine members: five judges selected by the state supreme court, two lawyers elected by the board of governors of the state bar association, and two laymen appointed by the governor with the advice and consent of the state senate. The commission is empowered to investigate a complaint submitted by any person concerning the incapacity or misconduct of a state judge and to recommend to the supreme court that he be retired or removed. All complaints, preliminary investigations, and formal hearings are kept confidential unless and until a recommendation for retirement or removal is filed with the supreme court, when the record becomes public. hearings are kept confidential unless and until a recommendation for retiremen or removal is filed with the supreme court, when the record becomes public. In its first four years of operation the commission considered 344 matters, most of which were dismissed, after initial investigation, as groundless. Twentysix of the investigations led to voluntary resignation or retirement without formal removal proceedings. In the one case carried to the state supreme court, the court reviewed the evidence and declined to remove the judge concerned. In the remaining cases, questionable activity was found which, in the commission's judgment, did not merit removal. In these instances-which included unjudicial participation in a case, insufficient industry, and faulty courtroom demeanor—a simple notice to the offending judge that the investigation was being conducted usually prompted him to reform his conduct voluntarily.14

The benefits of the California procedure are clear. It allows flexibility of remedy to cope with all types of judicial misconduct and incapacity. A commission composed largely of judges preserves the independence of the judiciary from political forces, and lawyer and lay membership on the commission assures representation

14 Frankel, Removal of Judges: California Tackles an Old Problem, 49 A.B.A.J. 166 (1960). See also the current annual reports of the Commission on Judicial Qualifications of the State of California.