Based on my own experience I can attest with complete assurance that some of our most highly respected Federal Judges would not have accepted appointment if the term had been eight years with continuance in office subject to Senate reconfirmation each eight years thereafter. I have not the slightest doubt that the quality of the Federal Bench would suffer drastically if the eight-year term, with the requirement of reconfirmation by the Senate to continue serving, were to become effective. A Federal Judgeship, because of its life tenure and its resultant independence, has a particular attraction for lawyers of independent mind and thought. Such persons would, as I have indicated, be repelled by the prospect of having to face a reconfirmation period every eight years. Obviously, affluence and even lucrative practice are not prerequisite to qualification for the Bench. Nevertheless, the fact is that in recruiting we have often gone to the leading trial and appellate advocates in the particular area. In a number of cases we have been successful. These Federal Judges, and of course numerous others too, have given up positions in prestigious law firms enjoying lucrative practices. They were willing to make the enormous financial sacrifice which going on the Bench entailed. I have no doubt that they would have considered it foolhardy to have risked the prospect of starting their careers all over again if their conduct did not happen to meet Senate approval or reconfirmation. This probably would apply even more poignantly in the case of individual practitioners. Which of us cannot think of times, most often during election periods, when many judges would stand in serious jeopardy insofar as their tenure is concerned if they were to come up for confirmation at that particular time? Just think of the lobbyists for various pressure groups who would be endeavoring to persuade individual Senators to vote against a Judge who had decided a case against one or another of them, or a Judge whose decisions seemed to them to be oriented against their clients' interests. I am sure we could all agree that there has been no greater jurist of wider influence on our jurisprudence than Chief Justice John Marshall. Yet, Professor Gerald Gunther of the Stanford Law School, who is writing a history of the Supreme Court during the period that John Marshall was Chief Justice, has expressed grave doubts whether the United States Senate in 1808 would have confirmed his nomination for another eight years. What a loss if we had been deprived of the ensuing twenty-seven years of Marshall as Chief Justice, a period during which much of his greatest influence was exerted and many of his most outstanding Opinions written; and this is to assume that Marshall would have accepted the position in the first place if the eight year limitation had then been imposed upon it. As I have travelled about the world, I have found in legal circles a very high regard for English judges, who, of course, have life tenure, and more latterly in increasing measure a similar regard for our own Supreme Court and for many of the storied names among the Judges of our Courts of Appeals and District Courts. Our Nation can be proud of the independence and the high quality of our Federal Judges. Assuming arguendo that there are limited gains that may be achieved from the proposed Constitutional Amendment, the price is simply too high. No gains can possibly outweigh the harm that the Amendment would do to the independence, to the quality, and to the impact of our judiciary. The proposed Amendment does not serve the public interest and would strike a blow of the most serious proportions against the independence of our judiciary which has been one of our Nation's proudest boasts for almost two centuries. I urge that it be rejected. HON. BIRCH BAYH, STANFORD LAW SCHOOL, Stanford, Calif. May 10, 1972. Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR BAYH: I appreciate your invitation to comment on Senator Byrd's proposal to require reconfirmation of Federal judges every eight years. I have examined S.J.Res. 106 and Senator Byrd's supporting statement. I believe that adoption of the proposed resolution would be profoundly unwise. With Senator Byrd, I "fully support the concept of an independent judiciary." I believe, however, that the lifetime tenure which our Constitution has provided from the beginning is a vital bulwark for that concept. To provide for Senatorial guardianship of judicial performance in the manner of S.J.Res. 106 seems to me an extraordinarily dangerous tampering with one of the most important ingredients of our constitutional system. 21-183-74-6 My strong disagreement with this proposal does not rest on an uncritical admiration of the work of the Supreme Court. Like Senator Byrd, I have had occasion to criticize decisions of the Warren Court. In my professional work, moreover, I have found some actions of earlier Courts unjustified, and I will no doubt have reason to disagree with decisions of the present and future Courts. Moreover, I agree with many of the judicial statements Senator Byrd quotes. I too believe in judicial self-restraint. And I consider Justice Harlan, whom Senator Byrd frequently cites, as the most distinguished Justice of recent history. Nevertheless, I strongly disagree with Senator Byrd's assumption that abolishing lifetime tenure is the appropriate cure. Senate review every eight years would surely promote politicization rather than independence of the Court. If the proposed amendment were in effect now, for example, the continuation of the tenure of Justices Powell and Rehnquist would come before the Senate in 1980. Can it really be believed that Senate scrutiny of their performance in a presidential election year would promote judicial independence? By 1980, I may well have many criticisms to make of the new Justices' performance; yet I would not want their continuation on the bench to turn on whatever the political balance of power may happen to be then. The fact that this proposal comes from a Senator from Virginia strikes me as ironic and sad. In recent years, I have spent considerable time, in addition to my study of current constitutional problems, on the writing of a history of the Supreme Court during the Chief Justiceship of John Marshall, one of Virginia's greatest sons. Had Senator Byrd's proposal been in effect from the outset, the admirable career of the great Chief Justice would have been aborted at an early point, I suspect. I doubt very much that the United States Senate in 1808 would have confirmed the nomination of Marshall for another eight years. We would have had the Marshall of Marbury v. Madison and of Burr's Trial to be sure; but we would have been deprived of more than two decades of Marshall's remarkable judicial performance. I am glad we did not have such an amendment then; I do not think we should have one now. The history of our Federal judiciary, despite the occasional lapses, surely does not warrant an elimination of the vital tenure provision of the Constitution. U.S. Senate, Committee on the Judiciary, Subcommittee on Constitutional Amendments, Washington, D.C. DEAR SENATOR BAYH: I am glad to have the occasion to comment on S. J.Res. 106. I hope a conclusory statement on my part will be helpful. As a teacher and scholar in the field of constitutional law, I am thoroughly opposed to the proposal. Its undermining of the independence of federal judges, in my opinion, would eliminate one of the very most significant features of our constitutional system and would introduce an extremely serious imbalance in the constitutional separation of powers and checks and balances that has served us well, albeit imperfectly, since the founding of the Republic. If there appears to be any real chance of this proposal going fowrard, I would welcome the opportunity for further comment. Sincerely, JESSEE CHOPER, Hon. BIRCH BAYH, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, DEAR SENATOR: You asked me to comment on S.J. Res. 106; I am grateful for the opportunity to do so. The Constitution as presently written has created an independent federal judiciary. The Founding Fathers regarded the independence of the judiciary as a value to be greatly prized. The proposed amendment would destroy that independence. It is true that independent judges occasionally render decisions which are unpalatable to many members of the United States Senate, perhaps even to a majority. That is the price we pay for independence. An independent judiciary whose decisions were always compatible with the views of a majority of the Senate is an unattainable objective. Congress, of course, does have enormous power over the federal judiciary in that it prescribes its jurisdiction. Sincerely, SIMON H. RIFKIND. Hon. BIRCH BAYH, YALE LAW SCHOOL, Chairman Committee on the Judiciary, Subcommittee on Constitutional Amendments, U.S. Senate, Washington, D.C. DEAR BIRCH: I think the idea of subjecting federal judges to reconfirmation every eight years is an abomination. Indeed, I have long thought that recess appointments of federal judges should never be made. I hardly think we need any constitutional amendment concerning the appointment of federal judges, but if we were to have one, I would favor an amendment forbidding recess appointments. I suppose the historic function of our federal judiciary, as defined in Marbury v. Madison, should always be subject to reconsideration, and throughout our history men whose opinions are entitled to our respect have had their doubts about the function. But unless the power of judicial review is to be abolished, indeed unless, even aside from judicial review, we are prepared to dispense with the function of an impartial and non-political judiciary, the independence of the judges must be safeguarded. The reconfirmation proposal would in my opinion not only hazard that independence, it would most likely destroy it. Best regards, ALEXANDER M. BICKEL. DEBEVOISE, PLIMPTON, LYONS & GATES, Hon. BIRCH BAYH, Washington, D.C. DEAR SENATOR BAYH: I have your letter of May 1, 1972 as to the amendment to the Constitution proposed by Senator Harry F. Byrd, Jr. of Virginia, S.J. Res. 106, which would require the reconfirmation of Federal judges every eight years. The proposal is being considered by the Committee on the Federal Courts of The Association of the Bar of the City of New York and its Chairman, Barry H. Garfinkel, will be in touch with your staff as to when a report can be expected-I am sure it will be negative. As for myself, I am completely opposed to the proposal which, if adopted, would obviously have a most harmful effect on the independence of the Federal judiciary-one of the outstanding and most desirable features of our judicial system. Nothing would be worse than to politicize our judges into looking over their shoulders every eight years. I hope that your Committee will unanimously oppose the resolution. With kind regards, Very sincerely yours, FRANCIS T. P. PLIMPTON. COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, SCHOOL OF LAW, Hon. BIRCH BAYH, U.S. Senate, Washington, D.C. DEAR SENATOR BAYH: Thank you for your letter of May 1 in which you ask for my comments on a proposed constitutional amendment, S.J. Res. 106, which would require reconfirmation of Federal judges every eight years. If I can, I hope to send you somewhat more detailed comments for the subcommittee. I can say now, however, that S.J. Res. 106 is not only unwise but, if enacted, would be disastrous for our system of government. One may begin with No. 78 of the Federalist Papers, which states the reasons of the Founding Fathers for providing lifetime tenure for Federal judges. Our experience has strongly borne out Hamilton's position, and to me it remains unanswered and unanswerable. Indeed, 180 years of experience has borne out the argument of de Tocqueville's Democracy in America, which goes beyond Hamilton's, that the peculiar genius of the American political system lies in the independent Federal judiciary, which balances the democratic political process. A judiciary that is subject to periodic review by elected officials cannot preserve its independent dedication to principle, immune from political pressures. I think it fair to say that our independent Federal judiciary has been essential to preserve our civil rights; in recent years the decisions in the school desegregation cases, the reapportionment cases and many other constitutionally required but politically unpopular matters would have been impossible had this amendment been in effect. I am writing this letter as an individual, as you requested. Within the Association of the Bar of the City of New York the matter falls within the jurisdiction of the Committee on Federal Courts, and I have asked the Chairman of that Committee to comment. Because it will require some time for that Committee to prepare a formal report and submit it for debate and approval, I am not sure that your timetable will permit this. In any event, I think that the issues are so fundamental and the answers so clear that one would anticipate that virtually all lawyers and legal scholars would agree in opposing this proposed constitutional amendment. Cordially, SHELDON H. ELSEN, Adjunct Professor of Law. Hon. BIRCH BAYH, NATIONAL CENTER FOR STATE COURTS, Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR BAYH: At the suggestion of Michael S. Helfer, Assistant Counsel to the Subcommittee on Constitutional Amendments, I am writing to set out my comments on Senate Joint Resolution 106. The National Center for State Courts has undertaken the responsibility of assisting the states in the improvement of their court systems. Alterations in existing constitutional provisions regarding tenure, discipline and removal of Federal Judges do not come within the scope of that activity. It should also be understood that the Board of Directors of the National Center for State Courts has not had an opportunity to review the proposed constitutional amendment; therefore, the following comments are personal only. Much experience has been accumulated by several states in recent years in regard to judicial selection, tenure and discipline. The trend has been away from the formerly prevailing pattern of partisan election of judges; varying methods of nonpartisan selection, accompanied by more secure tenure, have been substituted in several states. Characteristically, constitutional or statutory provisions establishing secure tenure have been accompanied by new procedures for discipline or removal of judges who become unwilling or unable properly to perform their duties. The prototype of modern systems for discipline and removal is that of California which has now been in effect more than ten years. This procedure assumes the ineffectiveness of impeachment to deal with the problem of misconduct or unfitness. It substitutes a procedure under which any person may submit a complaint to an independent commission concerning any claim of judicial misconduct or unfitness. The commission screens out obviously insubstantial complaints, conducts investigation or hearing when that is necessary, and can recommend to the state supreme court discipline, including removal or involuntary retirement. As a member of the California Judiciary, I can assure you that there is widespread satisfaction with the operation of this procedure in my State. Although discipline has rarely been imposed formally, several retirements have occurred during the course of private investigations by the Commission on Judicial Qualifications. The strength and public stature of the judiciary has been enhanced; at the same time, there has been no hint of political interference with the independence of our judiciary. Similar results have been obtained in Texas, New Mexico, Colorado, Maryland and several other states. It is with this background that I read Senate Joint Resolution 106. It provides for termination of the service of a Federal Judge at the end of an eight year term, if he fails of renomination or reconfirmation. No standards for renomination or reconfirmation are stated. The proposal goes directly contrary to the modern trend in favor of secure tenure coupled with a fair and effective procedure for discipline or removal. Moreover, it appears likely that the adoption of the proposed amendment would gravely undermine the independence of the Federal Judiciary by subjecting the continued tenure of the judges to extinction on an essentially political basis: First, by the President through his failure to renominate and second, by Senators through their failure to reconfirm. At the same time, no provision is made for discipline, removal or involuntary retirement of any Federal Judge on the ground of misconduct or incapacity. To summarize, it seems to me that the proposed constitutional amendment needlessly threatens the independence and quality of the Federal bench without effectively meeting any need that may exist for a new procedure of discipline and removal. Sincerely yours, WINSLOW CHRISTIAN. NOTRE DAME LAW SCHOOL, Hon. BIRCH BAYH, U.S. Senate, Washington, D.C. DEAR BIRCH: You asked me for comments on S.J. Res. 106. I have discussed that proposal with colleagues learned in constitutional law and federal courts and receive from them the strong impression that Senator Byrd's proposal to require reconfirmation of federal judges every eight years would be unwise. I can say for myself that I have always regarded the federal judiciary as a bastion of objectivity. It is my observation of practicing lawyers that one rarely even suspects favoritism or political influence let alone corruption-when he is dealing with a federal judge. One would hope, of course, that this were true of all judges. The main reason it is not, in my opinion, is that so many state-court judges are simply not able to be above the storm. They must bear in mind—and if they need not, self preservation being what it is, they do that their tenure in office depends upon voters, or powerful supporters, or public favor, or all three. Those factors are powerful dampeners of judicial courage. The judge is rare indeed who can ignore them. The federal judge is more often free of these influences. My impression is that most lawyers well recognize the factors Senator Byrd is concerned about-the |