Let me just say that at this time in American history institutions. of government are under attack and criticism by many segments of American society. It would, I think, behoove us to examine closely those institutions of American government to make certain they are operating as they should be, and that they, unlike some other institutions in American society, do not become afflicted with an authority crisis.

The courts have been involved in crises before, as they are again. today. They were, of course, involved deeply in a crisis at the time of the outbreak of the Civil War, and in the years thereafter.

Again in the 1930's the courts of the United States were again subject to a great deal of criticism. As is well known to you and the members of your staff, there were a number of impeachment proceedings brought in the Congress, dealing with judges who were accused of bribery, or in some cases of intemperate and arbitrary conduct.

These criticisms of the judges of the U.S. courts reached, not only Congress, but also the Chief Justice, and "these crises," as Leonard White said in his work, "Civil Service in Wartime," "put institutions to hard tests, the crust of custom breaks, a fluid situation ensues in which new forms are being temporized and old institutions either adapt themselves to new demands or are discarded."

And, of course, in 1939 the courts suffered from a number of criticisms of judicial misconduct. President Franklin Roosevelt, in his speech of February 5, 1937, calling for expansion of the Supreme Court, as well as for a court proctor to administer the lower Federal courts, noted shortcomings in these courts.

And So, the Administrative Office Act of 1939 became a response to a number of crises afflicting the courts, not only the political crisis generated by the court-packing bill of 2 years before, but also problems of behavior among lower Federal judges and economic problems which affected the whole country, but also affected the Federal court system where court messengers were eliminated, and other economy moves were made, including the elimination of jury trials toward the end of the fiscal year, and a general status crisis from which the trial judges particularly suffered.

So, Chief Justice Hughes supported the Administrative Office Act of 1939. He was certainly one of the crucial factors in that bill's formulation. Another was Chief Justice, as he was then called. Duncan Lawrence Groner of the U.S. Court of Appeals for the District of Columbia Circuit.

At the hearings of this subcommittee on April 9, we were seeking to determine the intention of the framers of the 1939 act. Certainly I would contend that one of the intentions of that act was to deal with the conduct of judges, of judges of the inferior courts, a problem which had arisen in an acute form during the 1930s, resulting in several impeachment trials in Congress.

Now, admittedly, the published legislative history is not terribly revealing. We do have some hearings. Chief Justice Groner was, of course, a major actor, and very little of his work has been presented in published form. He was chairman of the Judicial Conference committee which virtually drafted the Administrative Office Act of 1939.

But, Groner was what I would call an advocate of administrative self-restraint. I would term him an administrative passivist. He felt that though the Administrative Office Act would grant the circuit councils perhaps wide responsibility, their powers, the powers of the circuit councils, would be limited.

In fact, he wrote in 1941 to Hatton Sumners, who was, of course, long-time chairman of the House Judiciary Committee. He wrote hiin of the Administrative Office Act:

The power of the district judges is sufficiently preserved and the supervisory power of the Judicial Councils and the Conference will not be considered as impinging in any respect on the dignity and prerogatives of district judges.

So, certainly he felt that the act would have relatively limited effect on what might be called the autonomy of the Federal judges, as distinguished perhaps from their independence.

Now, as for the Congressmen involved, there were rather few about whom we have any clear idea of their intentions. Walter Chandler was the floor manager for the bill, because I believe Sumners was ill at the time.

In any case, Chandler, who was instrumental in enactment of the 1938 Bankruptcy Act, had a broader perception of the responsibilities and powers granted the courts via the Administrative Office Act than did the actual framers: the judges, Chief Justices Groner and Hughes.

Chandler said in a speech to the House, in volume 84 of the Congressional Record, part 9, page 9310:

Congress has created the inferior Federal courts and has a right to expect that they will function efficiently and expeditiously, but Congress thus far has failed to provide adequate administrative machinery whereby the best results may be obtained from the Federal judicial system.

And he felt that the Administrative Office Act would provide a coordinated and integrated system of judicial administration with, as he perceived it, a forceful administrator; namely, the Director of the Administrative Office of the U.S. Courts.

And so in December 1940, Walter Chandler wrote to the new Director of the Administrative Office, Henry P. Chandler. In this letter he indicates what I think is a wide dichotomy between the perception held by the judges of the powers granted them by the Administrative Office Act, and the perception held by the legislators of those same powers.

In this letter to the Director, Congressman Chandler warned of the prevalence within the judiciary of serious ethical problems and he demanded that such shortcomings within the judiciary must, and I quote here: "Must be corrected or Congress some day will abolish the Federal District Courts."

Of course, this threat to abolish the Federal districts courts was one that had been made from time to time in the 1920s and early 1930s. I believe George W. Norris, the Senator from Nebraska, had been a leading proponent of this particular goal.

Congressman Chandler told the Director of the Administrative Office that he would be expected to do more than simply compile statistics, he would be expected to do something about ethical shortcomings among Federal judges.

"The compilation of statistics," he asserted, "is not sufficient to restore confidence in the Federal courts."

Instead he said, "The Office must interfere with the leisure of Federal judges or else fail in its purpose."

Director Chandler replied that the Congressman misconstrued the intent of the very act which Congressman Chandler had helped to press through the Congress. The Director of the Administrative Office said, "that the course that you suggest that independent action by me be brought would cut across the theory of the act that I am the agent of the court for improvement of judicial administration, and the responsibility for action is in them."

The courts, as Director Chandler saw it, had the responsibility for acting.

Well, there is not a tremendous amount of material indicating the legislative intent, if such there was, and this is, as I am sure you are aware, an old problem. But, certainly Hughes, Chief Justice Groner, and Congressman Chandler saw the administrative apparatus which was set up, particularly the circuit councils, provided by 28 U.S.C. 332, as a means of dealing with complaints. These complaints came from members of the bar typically, but to some extent from those whose estates were being mishandled by referees in bankruptcy, or who were suffering the slings and arrows of other court officials as distinguished from judges.

Who was to deal with these complaints? The answer in 1939 was that the circuit councils would have the power to deal with these complaints which otherwise undermined the authority of the U.S. courts. This, Chief Justice Hughes felt, was highly undesirable, and I think all here will agree that it is undesirable to permit judicial authority to be undermined by shortcomings on the part of a very few judges, and perhaps a larger number of inferior court officials, clerks, et cetera.

Senator ERVIN. There were, a short time prior to that, charges against Judge Ritter, as I recall, and Judge Manton, and Judge Asher.

Professor FISH. That is right.

Senator ERVIN. I am not as much of an expert on the Administrative Act as I should be, but I have a notion that Congressman Chandler was doing what sometimes members of legislative bodies do, and that is to claim that an act is a whole lot more far-reaching and salutary than it really is.

I recall nothing in the act that gave them right-outside of seeing that the administrative processes were carried out-nothing that would indicate that they were to have even supervision over ethics. If they had that intention, they certainly did not express it.

Professor FISH. There is certainly nothing in the language of the statute to be sure, but certainly even Chief Justice Hughes favored such supervision. He was not a great activist. In fact, he felt there ought to be decentralization of administrative powers in the Federal court system; hence, the circuit councils were established, on a circuit basis rather than by centering administrative supervision either in the Supreme Court, or under the Chief Justice in the Judicial Conference.

But, Hughes was quite clear in the 1938 Judicial Conference that one of the councils' functions was to deal with such complaints. Otherwise, they would go to Congress, and Congress in many instances could not deal with them. These were complaints from lawyers, and from those who had been affected by subordinate personnel or supporting personnel of the Federal courts. The judge would stand behind his supporting personnel. He would stand behind his clerk, or his referee in bankruptcy, and refuse to take action against him, or to admonish him in some way. Through the councils, Hughes felt that these situations could be dealt with.

So I would contend that the record is clear that the circuit councils were to consider ethical problems, short of criminal charges. Early in the tenure of Director Chandler of the Administrative Office it became his policy to refer complaints which raised criminal issues to the Department of Justice, and then they would undertake an investigation of the court officer who was alleged to have committed some kind of a crime, or a judge, preparatory to establishing a House impeachment committee.

But, I would say that it was quite clear in the record that ethical problems were one of the important areas in which the councils were to operate; otherwise, there was no other way of dealing with such difficulties.

Otherwise, they would become publicized. It was not perceived as advantageous to the U.S. courts to permit unsubstantiated publicity concerning alleged shortcomings among judges and supporting personnel. There should be some means of dealing with these shortcomings within the judiciary, hopefully resolving them before they became publicized and before Congress felt it necessary to take action.

Now, to be sure, Congress from time to time has felt it necessary to take action where the councils have failed to act. The travel allowances and per diem for Federal judges were abused in the ninth circuit back in the early 1950's, I believe. Judges were spending 340 and 350 days away from their official residence, and collecting the per diem and travel allowances, and this eventually came to the attention of, I believe, a minority member on the House Appropriations Committee, and he asked that action be taken, and eventually the Judicial Conference established a separate committee which made an investigation of this problem and recommended action. Yet this is the kind of problem which the circuit councils were designed to take care of, and yet here is an issue which went out of the judiciary, went all the way to the Congress, and Congress requested action.

Now, again, this indicates the prominent role which the Appropriations Committee of the House plays in judicial administration. In a way they have almost life and death power over the inferior Federal courts through their control of the purse strings.

This is why last time when I was here I suggested that perhaps an address on the state of the judiciary by the Chief Justice to a joint session of Congress would be desirable, that this would present the entire judicial program to a wider audience.

As it is now, the judicial program and problems are presented as a complete unit only to the House Appropriations Committee. The

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Judiciary Committee gets pieces of it, but the state of the judiciary is made known, as a whole, only to the House Appropriations Subcommittee, headed now by Congressman Rooney.

I will be glad to answer any questions.

Professor WINTER. Why don't we talk about, for a second, a somewhat more general question, Mr. Fish. Last time you were here we discussed the powers of the Judicial Council to remove judges.

Why do we not turn the question around and let me ask you what you think are the limits on the powers of the other branches of Government to remove Federal judges; what are the constitutional limit on removal of judges, in your opinion?

Professor FISH. On the part of other branches, the executive and the legislative?

Professor WINTER. Or any combination thereof.

Professor FISH. Yes. The executive could not remove, unless the judge were a member of a legislative court and the act establishing it provided that the President could remove for misconduct. This would be a court created under an article other than article III.

The proposed courts in the District of Columbia, for instance, the new superior court, and the District of Columbia Court of Appeals are stated not to be article III courts, but article I courts.

I think the Congress could stipulate that the President could remove such a judge of such a court on various grounds. But, for article III judges, the legislative branch could remove only by impeachment for treason, bribery, high crimes, and misdemeanors. The rationale, of course, goes back to the Constitutional Convention. The concern of the Founding Fathers was with preserving the tenure of the Chief Executive, and much of the debate focused, of course, on that issue. They wanted to prevent the branch which represents the popular sovereignty idea in America to have only limited control over a court. If the Legislature sought to remove it it would have to be via the impeachment power, which is stipulated in article I and article II.

Professor WINTER. So that the only way to remove judges, in your view, is through impeachment?

Professor FISH. By a coordinate branch of Government.
Professor WINTER. Well, can the judiciary remove judges?

Professor FISH. Well, this is a problem we debated last time. They would not have inherent power today to go out and remove judges. Their jurisdiction would have to be declared.

Professor WINTER. They might, Mr. Fish. After listening to Mr. Rehnquist from the Department of Justice yesterday, and some of the other things that have been said, I would think that the logical position of those who say that the judicial branch may remove judges the logical position ought to be that a private litigant could, by a lawsuit under article III, asking that the Federal judge be removed because he was not serving in good behavior, and that the suit would go on like any other lawsuit; and that, it seems to me, from the instrument, from the document of the Constitution itself, is the logical position.

Professor FISH. Well, yes; but

Professor WINTER. I mean totally and absolutely wrong, but