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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF
THE UNITED STATES WITH RESPECT TO RECONFIRMA.
TION OF FEDERAL JUDGES AFTER A TERM. OF EIGHT

YEARS

Printed for the use of the Committee on the Judiciary

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DEC 1975

DOCUITES

REIERS

DEPE

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1973

21-183

COMMITTEE ON THE JUDICIARY

93d Congress, 1st Session

JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas

ROMAN L. HRUSKA, Nebraska SAM J. ERVIN, JR., North Carolina

HIRAM L. FONG, Hawaii PHILIP A. HART, Michigan

HUGH SCOTT, Pennsylvania EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina BIRCH BAYH, Indiana

MARLOW W. COOK, Kentucky QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, JR., Maryland ROBERT C. BYRD, West Virginia

EDWARD J. GURNEY, Florida JOHN V. TUNNEY, California

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS

BIRCH BAYH, Indiana, Chairman JAMES O. EASTLAND, Mississippi

HIRAM L. FONG, Hawaii SAM J. ERVIN, JR., North Carolina

ROMAN L. HRUSKA, Nebraska ROBERT C. BYRD, West Virginia

STROM THURMOND, South Carolina QUENTIN N. BURDICK, North Dakota MARLOW W. COOK, Kentucky JOHN V. TUNNEY, California

HUGH SCOTT, Pennsylvania (II)

CONTENTS

Page

7

65

May 19, 1972

Byrd, Hon. Harry F., Jr., U.S. Senator from Virginia-

Freund, Paul M., Carl M. Loeb University Professor, Harvard Law

School, Cambridge, Mass

Shuford, Paul M., attorney, Wallenstein, Goode, Dobbins, Shuford,

Richmond, Va.; president, Bar Association of the City of Richmond,
Kurland, Philip B., professor of law, University of Chicago Law School,

Chicago, Ill.; chief consultant to the Subcommittee on Separation of
Powers, Senate Committee on the Judiciary ----

STATEMENTS SUBMITTED FOR THE RECORD

Godwin, Hon. Mills E., Jr., Governor of the Commonwealth of Virginia..

Gray, Mr. Earl Q., attorney, Ardmore, Okla---

Kuykendall

, J. Sloan, senior partner, Kuykendall, Hall & Whiting, Win-

chester, Va.; president of the Virginia Board of Bar Examiners, former

president of the Virginia State Bar--

Segal, Bernard G., senior partner, Schnader, Hamilton, Segal & Lewis,

Philadelphia, Pa.; former president of the American Bar Association,

president of the American College of Trial Lawyers, chairman of the

board of the American Judicature Society ---

ADDITIONAL MATERIAL
Bar Association of the City of New York, report of the Federal Courts

Committee on a proposed amendment to the Constitution to require

reconfirmation of Federal judges every 8 years. (S.J. Res. 106)

Battisti, Hon. Frank J., “The Independence of the Federal Judiciary,'

Boston College Industrial and Commercial Law Review, vol. 13, No. 3,

p. 421 (1972)

Bennett, Mr. Hubert D., executive secretary, Supreme Court of Virginia,

letter to Hon. Harry F. Byrd, Jr., May 15, 1972.-
Berger, Raoul, “Impeachment of Judges and 'Good Behavior' Tenure,"

the Yale Law Journal, vol. 79, No. 8, p. 1475 (1970)
Bickel, Alexander M., professor of law, Yale Law School, New Haven,

Conn., letter to Hon. Birch Bayh, May 9, 1972.-
Byrd, Hon. Harry F., Jr., U.S. Senator from Virginia, letter to Hon.

Albertis S. Harrison, Jr.

Choper, Jesse, professor of law, school of law, University of California,

Berkeley, letter to Hon. Birch Bayh.--

Christian, Hon. Winslow, director, National Center for State Courts,

Washington, D.C., letter to Hon. 'Birch Bayh, May 18, 1972.-..

Davis, Robert R., Jr., "The Chandler Incident and Problems of Judicial

Removal,” Stanford Law Review, vol. 19, p. 448 (1967)----

Elsen, Mr. Sheldon H., Adjunct Professor of Law, Columbia University

School of Law, New York, N.Y., letter to Hon. Birch Bayh, May 11, 1972.
Ervin, Hon. Sam J., Jr., "Separation of Powers: Judicial Independence”

Law and Contemporary Problems.

The Federalist, excerpts from Nos. LXV, LXVI, LXXVIII, LXXIX.

Frankel, Jack 'E., “Judicial Discipline and Retirement—the California

Plan" Illinois Bar Journal, vol. 58 (1970) ---

82

10

109

79

15

80

84

271

Page

77

16

171

181

4

301

16

79

79

p. 119..

281

Gunther, Gerald, professor of law, Stanford Law School, Stanford, Calif,.

letter to Hon, Birch Bayh, May 10, 1972.. Harrison, Hon. Albertis S., Jr., Justice of the Supreme Court of Appeals,

Richmond, Va., letter to Hon. Harry F. Byrd, Jr., May 5, 1972Kramer, Robert and Jerome A. Barron, "The Constitutionality of Removal

and Mandatory Retirement Procedures for the Federal Juriciary: The
Meaning of 'During Good Behaviour's the George Washington Law

Review, vol. 35, No. 3, p. 455 (1967) ----
Kurland, Philip B., "The Constitution and the Tenure of Federal

Judges: Some Noies from History” University of Chicago Law Review,

vol. 36, No. 4, p. 665, (1969)
Library of Congress, memorandum on the tenure of Federal judges...
Lillich, Richard B.; "The Chase Impeachment,” the American Journal

of Legal History, vol. 4, p. 49 (1960), Temple University,
Memorandum of law, "A Challenge to the Concept of Life Tenure for the

Federal Judiciary," prepared for Hon. Harry F. Byrd, Jr., by Edward

J. White, special assistant to Senator Byrd.
Plimpton, Francis T. P., attorney, Debevoise, Plimpton, Lyons & Gates,

New York, N.Y., letter to Hon. Birch Bayh, May 11, 1972.-
Rifkind, Simon H., attorney, Weiss, Rifkind, Wharton Garrison,

New York, N.Y., letter to Hon. Birch Bayh, May 8, 1972.
Ross, G. W. C., "Good Behavior of Federal Judges,” University of

Kansas City Law Review, vol.
Rutgers Law Review, “Courts-Judicial Responsibility-Statutory and

Constitutional Problems relating to Methods for Removal or Discipline

of Judges,” case comment, vol. 21, p. 153 (1966) -Senate Joint Resolution 106. Shaffer, Thomas L., dean, Notre Dame Law School, Notre Dame, Ind.,

letter to Hon. Birch Bayh, May 19, 1972...
Shartell, Burke, “Federal Judges --Appointment, Supervision, and Re-
moval-Some Possibilities Under the Constitution". Michigan Law

Review, vol. 28 No. 7, p. 870 (1930) --
Simpson, Alex, Jr., “Federal Impeachments," University of Pennsylvania

Law, vol. 64, p. 653 (1916).
"Federal Impeachments,” (concluded) University of Pennsylvania Law

Review, vol. 64, p. 803 (1916) --
Stolz, Preble, “Disciplining Federal Judges: Is Impeachment Hopeless?"

California Law Review, vol. 57, No.3, p. 659 (1969) --
Vanderbilt Law Review, “Removal of Federal Judges-Alternatives to

Impeachment,” vol. 20, p. 723 (1967) --
Wallace, Leon H., professor of law, Indiana University School of Law,

Bloomington, Ind., letter to Hon. Birch Bayh, June 1, 1972
Winters, Glenn R., "Judicial Selection and Tenure—The Missouri Plan”

Illinois Bar Journal, vol. 58 (1970),
Winters, Glenn R. and Robert E. Allard, "Judicial Selection and Tenure

in the United States," Judicial Selection and Tenure: Selected Readings,

American Judicature Society, Chicago, 1967---
Yankwich, Leon R., “Impeachment of Civil Officers Under the Federal

Constitution" Georgetown Law Journal, vol. 26, No. 4, p. 849 (1938) ---
Ziskind, Martha Andes, “Judicial Tenure in the American Constitution:
English and American Precedents" 1969 Supreme Court Review, p. 135..

286 14

81

200

312

325

217

262

82

166

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U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS,
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh presiding.

Present: Senator Bayh (presiding).
Also present: Peter W. Coogan, assistant chief counsel; Michael S.
Helfer, assistant counsel ; Carol A. Brezina, clerk.

Senator Bayh. We will convene our hearing this morning, the primary purpose of which is to study the ramifications, the impact, and the thrust, of Senate Joint Resolution 106, introduced by our distinguished colleague from Virginia, Senator Byrd.

I will ask unanimous consent that an introductory statement which I have prepared be put in the record at this point. For the benefit of those who are here and I will not read it in toto.

[The statement referred to follows:] STATEMENT OF SENATOR BIRCH BAYH, CHAIRMAN, SENATE SUBCOMMITTEE ON

CONSTITUTIONAL AMENDMENTS

This hearing has been called to consider Senate Joint Resolution 106, which purposes an amendment to the Constitution requiring the reconfirmation of all federal judges after a term of eight years. We are pleased to have with us today the distinguished senior Senator from Virginia, Harry F. Byrd, Jr., who introduced S.J. -Res. 106. We are also fortunate to have several outstanding legal scholars as witnesses today; Professor Paul Freund of the Harvard Law School; Mr. Bernard Segal, former President of the American Bar Association : Professor Philip Kurland of the University of Chicago Law School; and Mr. Paul M. Shuford, President of the Richmond Bar Association.

Article III of the Constitution provides that "Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior." S.J. Res. 106 would alter that Article by providing federal judges with only an eight year term, during good behavior. During the final year of each judge's appointment his name would be placed in nomination for another term, and the Senate would be asked whether it wished to advise and consent to the nomination. This procedure, however, would not apply to judges currently on the bench; they would continue to serve under Article III's provisions.

I must state, in all candor, that I am not currently persuaded that the proposed change in Article III's provisions is necessary and proper. But my mind is not closed to argument on this or any other issue, and that is why I am looking forward to discussing this proposal with today's very distinguished witnesses.

The judiciary today, as in other times, is not completely free from problems which are the legitimate concern of the legislative branch. For a number of years, I have been working on legislation which would require the very highest standards of ethics in our judges, and that battle is not yet won. We are all also concerned with ensuring that only the most highly qualified able, and professional

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