district judges I do not know. I sometimes lap over and talk to district judges that I think have opinions other than mine.

Mr. LANCASTER. From your experience, how often does the Judicial Conference confer with the Justice Department on drafts of proposed legislation?

Judge ALDRICH. I read that in the Senator's opening statement, and I do recall that there have been circumstances brought to the attention of the conference, and I was trying to think how often. I would have thought it was very seldom. I never had myself any consultation with that department except that I think a representative testified before my subcommittee of the Bankruptcy Committee in connection with referees.

Mr. LANCASTER. Do you see any separation of powers problems there?

Judge ALDRICH. If it was done on a large scale I would see separation of powers problems, but done on a small scale in which there was a community of interest I would see none. The question raises a very interesting philosophy which actually-the one thing I was thinking about when I got dressed this morning-you and I are lawyers, you for the plaintiff and I for the defendant. We have very antagonistic interests, but that does not mean that there could not come some occasion in which we would consult with each other to our mutual benefit, and I don't think anybody would think we were doing wrong by our clients.

Mr. LANCASTER. There is a bill before another subcommittee-S. 1506, the Judicial Reform Act-which would create a new statutory role for the Judicial Conference. The Conference would hear appeals from a special commission which would recommend removal of Federal district and circuit judges without impeachment. How do you feel of being put in the position of judging one of your colleagues?

Judge ALDRICH. My first reaction would be I would dislike it very much. My next answer would be that if, as to the wisdom of this bill, that is a broad question, but if such a bill were passed-and I take it your question was how I would feel about acting on it-I would feel that if the bill were passed somebody must act on it. I feel badly when I sit on the court of appeals and reverse some friend of mine in the district court, but I have that obligation. I wouldn't feel, in other words, that I couldn't sit as a judge on that S. 1506, but I hope that I would be passed over. Does that answer your question?

Mr. LANCASTER. Yes.

Do you see any need to vest the power of removing judges in the judiciary?

Judge ALDRICH. That is a question really which has two parts. The first question is there any need to vest it anywhere. In my particular circuit-we can't help but look at things from one's own experience, I haven't seen any need for any such legislation.

The second fact does not mean that I haven't heard things, purely by hearsay, that would obviously cause some people to think that there is need for such legislation elsewhere.

If your question is related simply to whether it should be done by judges, I think, as I look over this bill, that I don't have any

instinctive feeling that it must not be done by judges. It is a difficult question.

Mr. LANCASTER. There is one alternative; if it were established that there was a need for a bill like S. 1506, it has been suggested that the House and Senate rules could be altered to make the impeachment process more efficient.

Judge ALDRICH. More efficient.

Mr. LANCASTER. It would streamline impeachment within the Congress. The Congress would retain exclusive control. Do you think that would be a better idea?

Judge ALDRICH. That is a very big question. I don't think I have any final views on that, but I would suggest some quick ones which really I suppose work both ways. Nobody is more conscious of the need for the independence of the judiciary than the individual judges themselves. I think it might be fairer to the judge to have his interest passed upon in this supposed situation by judges rather than by nonjudges. By the same token, maybe the bill wouldn't be as effective, because maybe some persons who are not so impressed with the independence of the judiciary would enforce it heartily. Since I don't think it should be enforced very hard, my quick reaction to your question, my quick reaction would be I think judges would be better protected if judges were used.

Senator ERVIN. Judge, this bill provides for the removal of judges by a commission of judges if they are allegedly guilty of willful misconduct. There is no elaboration on what the meaning of willful misconduct is. I would like to have your opinion on the question of whether that is so vague and indefinite as to fail to comply with the due process clause?

Judge ALDRICH. I don't feel I can pass on that. We had a case which went to the Supreme Court last year which I get the impression the Supreme Court thought was so unimportant, whether there was an oath required by the Commonwealth of Massachusetts before you get compensated that you would, under all circumstances oppose the violent overthrow of the government, and we got into a great hassle as to whether opposing was sufficiently clear or not clear and I read so many cases in connection with trying to solve that question that my head swam.

The obvious fact is that if you describe things with too great particularity then there is always some exception. If you describe them with too little particularity and too much generality then there is always difficulty in knowing how to construe it.

Willful is probably not too hard to explain, but what is misconduct. I think my quick reaction to that one is that it ought to be spelled out a little more.

Senator ERVIN. The proponents attempt to justify this on the grounds that although the Constitution says that judges can be removed from office by impeachment proceedings provided that two thirds of the Senate concur it is argued that this bill can be sustained on the ground that the Constitution says judges shall hold office during good behavior, and that if a judge displays "willful misconduct," he is not exhibiting "good behavior."

Judge ALDRICH. I have heard that argument but it does not answer the first question you asked me about what is misconduct. I might think it was, if we sent a case back to a district judge and told him our mandate, how it was to be tried, and he decided to retry it in Some other way, I might think, but I hope I would not, but I might feel that that was willful misconduct. I told him what to do and he did not do it.

It would certainly not be a ground for removing the judge if I did not agree with what he did in a particular case.

Senator ERVIN. Would not the same thing apply to the words "good conduct"? The theory is that the Congress can legislate in this field and circumvent the impeachment process defined in the Constitution because the Constitution says, in article III, judges hold their offices during "good Behaviour," and then the argument is made that Congress has the power to say what is good behavior or what is bad. behavior and, therefore, would it not destroy the independence of judges and subject them to the caprice and whims of Congress. I do not think this is good legal reasoning.

Judge ALDRICH. It surely would, if you construed it broadly, but you still have the problem, when you are going to phrase a new statute that I have already averted to, but to put in a footnote here, you see is that he can be removed, impeached as a judge for a high misdemeanor. I have never been able to find out what a high misdemeanor was as distinguished from some other misdemeanor.

Senator ERVIN. Well, I certainly agree with you, but I believe that would exclude a judge from impeachment if he got a parking ticket. Judge ALDRICH. I hope so, Senator.

Senator ERVIN. In other words, to my mind certainly, given the "Treason, Bribery, or other high Crimes and Misdemeanors," it would at least imply that it would be a very serious case.

Judge ALDRICH. True.

Senator ERVIN. Judge Lumbard testified and gave us a statement concerning the new rules that the Judicial Conference had established since the action was taken on the McClellan bill and the Murphy amendment. Is it your opinion that these new rules make it about as certain as it is humanly possible that the Conference will not take precipitous action?

Judge ALDRICH. I hope they do. That certainly was the purpose. Senator ERVIN. And, frankly, I think it is well-phrased to accomplish that purpose.

Judge ALDRICH. We tried to.

Senator ERVIN. Any other questions?

Professor WINTER. Judge, I was intrigued by your belief that judges would best be judged by judges, I think as you put it, rather than some other tribunal or some other kind of officer.

I am not sure I follow from that, though, that it would be wise to have a tribunal of judges that would be empowered to remove other judges.

Let me suggest for comment, if you choose, something that Judge Bazelon suggested yesterday, which was a tribunal of judges empowered to investigate charges against other judges, charges which on

their face would seem sufficiently serious to warrant removal, that they undertake the investigation, and be empowered to make a recommendation to the House Judiciary Committee to begin whatever proceedings would be necessary. Would that be a desirable arrangement?

Judge ALDRICH. I wish I had thought about this problem before I got into the room, because I am not in a position now that I would have been when we voted on the amendment.

I am coming on it very cold. I do not think I can add to what I already said.

Professor WINTER. Thank you.

Mr. EDMISTEN. Judge, I heard you mention a moment ago that you did not believe in sanctions being applied by other Federal judges. In our last hearings we had another chief circuit judge tell us that he hoped that the circuit councils would be given the subpoena power. I asked the judge why, and he gave a number of reasons.

What reason could you give? Why would you think a circuit council would want the subpoena power?

Judge ALDRICH. Well, perhaps some circuit council has wanted it. I do not know why. I do not want it. They may have good reasons.

I would be feeling that with subpoena power I would get into the position of-well, I do not think I can elaborate on that answer. I am happy without it.

Mr. EDMISTEN. I take it from your statement that you have very strong beliefs that in our Federal system the independence of these Federal judges is probably the most important thing we have?

Judge ALDRICH. Indeed, I do.

Professor MILLER. Senator, I have just one comment, rather than a question. You mentioned the idea that it might be misconduct for a district judge not to follow a remand or a mandate from the court of appeals, and so on, and it seems to me that there was a case a few years ago in the Supreme Court, and I think the record might show this, that the court in, I believe, Cascade Natural Gas Company v. El Paso remanded it to the district court, or the court in Utah, and ordered that, I believe, Judge Ritter was not to sit on that any more. Judge ALDRICH. This was the Supreme Court?

Professor MILLER. Yes.

Judge ALDRICH. I think I remember.

Professor MILLER. I only make that as a comment, that there is some idea that at least in one instance the Supreme Court has acted in this way. They did not believe that the district judge was following their previous decision and ordered his removal.

Judge ALDRICH. Excuse me. That is a different case. Could I speak to that?

Professor MILLER. Well, I made it as a comment, but yes, sir.
Judge ALDRICH. We have done precisely the same thing.

We had a case that was tried, and I do not remember if it was with a jury, they may have waived the jury, but anyway, it was tried by a judge in the district court, and we sent it back, and he did not do what we thought he should do, so there was an appeal and we had to remand to him a second time. So, we put in our order that this should be tried by another judge the next time.

That, to me, was precisely the right thing to do. Now, we did not go around and say anything to that district judge, that he was guilty of any misconduct. We felt that he had not handled that case right, so we took care of it.

Professor MILLER. Yes, sir. Do I understand that was in your function as an appellate court?

Judge ALDRICH. Right.

Senator ERVIN. In my recollection of it, and I have not read the report in that case, there were some dissenting opinions, at least one of them, which stated in substance that the litigants were perfectly satisfied with the subsequent action of the district judge, and there was no appeal back to the Supreme Court in that case.

Professor MILLER. Senator, that was a later case.

Senator ERVIN. Oh, yes.

Professor MILLER. And Mr. Bennett was permitted to come in and intervene on special motion.

Judge ALDRICH. I just remember that case very vaguely. The one I remember specifically was my own case.

Senator ERVIN. From my recollection, the case I am talking about was recently, and my recollection also is indistinct except for this vigorous dissenting opinion.

Judge, we certainly are greatly indebted to you for your very enlightening discussion.

Judge ALDRICH. I thank you very much. I do not feel I have been here very long, and I hope everybody has asked me every question they want to. Thank you.

Senator ERVIN. Thank you, we certainly appreciate it.

Judge ALDRICH. It was a great pleasure to be here.

Senator ERVIN. Counsel, will you call the next witness?

Mr. EDMISTEN. Mr. Chairman, we have as our next witness Prof. Peter G. Fish, who you will remember was here at our last hearing. This will be a continuation of his testimony.

We would like to welcome you.

Senator ERVIN. I would like to say for the benefit of those who were not present at the previous hearing, that Professor Fish is assistant professor, Department of Political Science, Duke University. He is a native of New York; he received his A.B. degree from Princeton University, and his master's and Ph.D. degrees from Johns Hopkins University.

Prior to joining the faculty of Duke University, he was an instructor at Oberlin College and at Princeton University.

He is the author of "Secrecy and the Supreme Court: Judicial Indiscretion and Reconstruction Politics," and "Status of the Federal Probation System."

We are delighted to have you back with us.

STATEMENT OF PETER G. FISH, ASSISTANT PROFESSOR,
DEPARTMENT OF POLITICAL SCIENCE, DUKE UNIVERSITY

Professor FISH. Thank you very much, Senator. I am glad to be back here, and consider it an honor and privilege to testify before you. Let me make a few opening comments before I answer questions. I understand that is the purpose of my return visit.