DEAR SENATOR ERVIN: I have for acknowledgment your letter of June 1st addressed to the District Judges of the United States Courts. I appreciate your courtesy in giving the judges an opportunity to comment on the bill which has for its alleged purpose improvements in the administration of the courts of the United States. I especially appreciate the attention you are giving to the question of independence of federal judges and the doubtful constitutionality of the proposals by Senator Tydings. In my judgment this cause deserves the most thorough and careful attention of your committee, the United States Senate and the Congress. While I am aware of the recent decision of the Supreme Court in the Chandler case, and which I believe has clarified some of the issues, there are other questions which in my judgment that are proposed in the bill that is not reached in the Chandler decision. I want to commend you for the splendid judicious statement on this subject. You have clearly and succinctly pointed out what I believe to be the serious problems in our federal judicial system and I am perfectly willing to leave the decisions with the good judgment that I am sure you and your colleagues will exercise on this question of maintaining the confidence in our judiciary and the independence of our courts. Again, I want to personally express my sincere thanks for your efforts in this important field. I hope you are doing well and enjoying good health. With my esteem and best wishes. DEAR SENATOR ERVIN: I received your letter of June 1, 1970, concerning S. 1506 and enclosing a copy of your statement of April 7, 1970. Permit me to compliment you on your very excellent statement. Concerning my feelings with regard to the proposed enactments in S. 1506, I agree with you that this Bill poses a serious threat to the independence of the Federal Judiciary. I feel that the thing which has contributed more than any other one cause or series of causes to the respect and admiration in which the Federal Judiciary as a whole is held by most of the people of the United States has been their absolute independence during their term of office and during good behavior. I believe that it is and has been recognized that for almost two centuries the Federal Judiciary as a whole has been beyond the influence of any man or group of men, be it The President, Senate, House of Representatives or any group of individuals. Any enactment which would give or purport to give any body, whether it be composed of a body of fellow-judges or of others, any power over judicial tenure might well result in most adversely affecting the independence of the Federal Judiciary. Our Founding Fathers were very careful to provide that the tenure of a Federal Judge could only be affected by the Senate, by a two-thirds vote, on charges brought by the House of Representatives. I know of nothing in the history of the Federal Judiciary which would require or justify a change in the independence of the Federal Judiciary after almost two centuries of existence as a country under the Constitution. Surely the process of impeachment of a derelict judge is a most cumbersome procedure but the very cumbersomeness of the procedure has kept our Federal Judiciary insulated from influence and politics for some 18 decades. With regard to Bills which would require the disclosure of income and investments of Federal Judges, I am strongly opposed to legislation of this nature since I again feel that such legislation would erode the independence of the Federal Judiciary. However, I must say that I very strongly approve the idea that every member of the Federal Judiciary should voluntarily make known at suitable intervals of once or twice a year his income from all sources and his investments. Chairman, Subcommittee on Separation of Powers, Washington, D.C. MY DEAR SENATOR ERVIN: Your confidence and your gracious interest in requesting the views of the members of the various Federal District Courts on Senate Bill 1506 are greatly appreciated, I am sure, by all Federal District Judges, and especially by myself. In response to your request for comments 1 must say that I find serious flaws in this proposed legislation. The provisions of "TITLE I-COMMISSION ON JUDICIAL DISABILITIES AND TENURE" of Senate Bill 1506 present substantial dangers of judicial harassment by disappointed litigants since they authorize an investigation of the official conduct of any judge of the United States appointed to hold office under Article III of the Constitution upon complaint or report, formal or informal, of any person. Unsuccessful litigants, especially those who have applied for post-conviction relief, will relish the opportunity of pursuing an additional and particularly vexatious recourse against any judge who has denied their unmeritorious and frivolous petitions for post-conviction relief. The proposed legislation would have the further unfortunate result of increasing the power of the Judicial Conference over the members of the Federal District Court in each Circuit. This will inevitably erode the time-honored principle of judicial independence. No group of Federal Judges and no administrative body of the Executive branch should have the authority to interfere with the everyday judicial conduct of a Federal trial judge. The most telling objection to Senate Bill 1506 is that the proposed legislation appears to be unconstitutional on its face. Article II Section 4 of the Consti tution mandates that "all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." The Congress of the United States is given the exclusive authority to remove civil officers such as Federal judges, since the Constitution vests the power of impeachment solely in the House of Repre sentatives, Art. I § 1, c1.5, and the authority to try impeachments solely in the Senate, Art. I § 3 c1.6. In essence, Senate Bill 1506 unlawfully delegates this Congressional power to remove Federal judges to a Commission on Judicial Disabilities and Tenure, the Judicial Conference, and the Supreme Court. Further, it is not clear that any new legislation relating to the removal of incompetent or unfit Federal judges is necessary. Recent events buffeting the United States Supreme Court have given rise to demands that someone, some thing, or some group must vigilantly monitor the Federal Judiciary. Curiously enough, the provisions of Senate Bill 1506 apparently do not apply to the "Justices of the Supreme Court", but only to "Judges of the United States"an ambiguity if not an anomaly, in view of the fact that the problems sought to be solved originated in the Supreme Court and not in the Circuit or District Courts. Moreover, the truth of the matter is that there is already an abundance of Congressional enactments and Constitutional procedures regulating the exercise of the judicial power of the United States. The formal Congressional impeachment procedure of the Constitution has operated adequately in the past to protect the integrity of the United States Courts from incompetent and unfit judges. And there are a number of other guarantees against judicial misconduct : (1) An aggrieved litigant can appeal a decision of a Federal District Court to the Court of Appeals. 28 U.S.C. § 1291. (2) Any litigant can challenge virtually every judicial impropriety via the "All Writs Statute". 28 U.S.C. §1651. (3) A Federal Judge must disqualify himself in any case in which he has a substantial interest. 28 U.S.C. $455. (4) Any Federal Judge who engages in the practice of law is guilty of a high misdemeanor. 28 U.S.C. §454. (5) A Federal Judge who commits bribery or engages in graft is subject to prosecution under the Criminal Code. 18 U.S.C. §201. Although these special sanctions for the discipline and removal of unfit and incompetent Federal Judges have seldom been used, the presently existing arsenal of Constitutional and legislative authority appears more than adequate to provide all necessary ammunition for appropriate regulation of the Federal Judiciary. Before closing I should perhaps allude to and comment upon the "Financial Statements" provisions of Senate Bill 1506: (a) The Judges and Justices should not be asked to place exact or estimated valuations on any of their properties, interests or assets, since any such valuation might well be used against them in income tax, estate tax and inheritance tax inquiries, audits and assessments. (b) Any and all reporting should, at the very least, be absolutely privileged against disclosure to anybody except the Judges or other repository set up by The Judicial Conference and authorized by law to receive and keep the financial statements. In particular, it should be made a crime to disclose any such financial statement without the permission of the reporting Judge or Justice. In other words, there should be a protective cloak of privilege buttressed by criminal sanctions against any unauthorized disclosure. (e) If some public disclosure of income or assets is deemed absolutely essential to prevent judicial conflict of interest and to reassure litigants, such disclosure should be limited to the names of the persons, partnerships, corporations or entities from whom income is received, or in and with whom there is an investment interest. Any conflict of interest would readily appear from such disclosure of names and it would not be necessary to have disclosures of amounts or estimates of valuations. Thank you, Senator, for this opportunity to express some of my reasons for opposition to Senate Bill 1506 reasons in which I am confident the vast majority of my brothers on the District Courts throughout the United States concur. Sincerely yours, HON. SAM J. ERVIN, JR., A. ANDREW HAUK. U.S. DISTRICT COURT, DISTRICT OF SOUTH CAROLINA, Columbia, S.C., June 23, 1970. Chairman, Subcommittee on Separation of Powers, F.S. Senate, Washington, D.C. DEAR SENATOR: Your letter of June 1 and enclosure inspire, initially, my lasting gratitude for your continuing and magnificent service as United States Senator. Your unceasing crusade for preservation of constitutional government deserves our unfettered praise. We of the Federal Judiciary are on the eve of reporting some of our activities. A form sent to each of us for such purported purpose is enclosed for your perusal. I find no objection to the giving of the information, but I reflect that no man should be elevated to judicial responsibility in whom the complete confidence cannot be placed, with expectation and confidence that his integrity will be sufficient and controlling throughout his tenure. The very fact of this surveillance implies a mistrust which we do not deserve. The incidents of ethical departure have been rare, despite the millions of opportunities over the years. Now I find the Congress, and the Judicial Council, indicate a suspicion that every Federal Judge is a potential source of judicial misconduct. I do not believe the experience over the years justifies the creation of such a climate of distrust. Be that as it may, I will report as directed. I beg your indulgence while 1 comment on matters now pending in the Senate. S. 952 is a bill to increase the manpower of the federal bench. I do not have the legislation before me, but I am of the opinion that the increase in manpower, if justified, could be accomplished in a manner that would be efficient and economic. If the federal judges were allowed to retire to senior status at age 62 or above, after fifteen years service, we could foresee a reservoir of talent available. A condition of the retirement would be a pledge of availability for assignment to any court for at least 200 days of the year. I have in mind that senior judges do not command the same support personnel now available to active judges. The senior judge could be supported by a secretary or combined secretary-law clerk. Intercircuit assignments could be molded to derive maximum use of the senior judges. I would envision this would eliminate creation of new judgeships every three or four years. Incidentally, this would not interfere with the mandatory retirement features of S. 1507, which I heartily endorse. The bills could easily be combined as one. S. 978 seeks to create a commission to study the effect of certain court decisions. In my opinion we do not need any more commissions. The Senate can handle any work a commission would undertake, and the Senate has the talent on hand in its membership and staffs. S. 1506 seeks to create a Commission on Judicial Disabilities and Tenure to review and make recommendations with regard to conduct inconsistent with the good behavior required by the Constitution. Not only would this be an unconstitutional creation and delegation of power, but it would be a vehicle for abuse far beyond our present abilities to foresee. I am in absolute agreement with your arguments against interference with the independence of the federal bench. Once a commission is created it has to find something to do. A staff is assembled, whose first determination is a perpetuation of their existence, and the creation of a climate of usefulness. Most of the federal trial bench are over fifty years of age, have wide and varied experiences, have survived the screening processes now in existence. It occurs to me that members of the United States Senate do not ordinarily recommend lawyers who are not accepted and recognized, in their home state, for professional integrity and ability. I challenge anyone to examine the trial bench of our circuit-I know and respect them individually and collectively, regardless of political background. I feel sure the other circuits are similarly fortunate. I have attended meetings and conferences with many from other circuits and I am proud and humble to be included and catalogued as one of the trial judges of the nation. I dare not suggest as to appellate or Supreme Court justices, they being of higher level. Suffice it to say, the Senate is America's watchdog in assuring proper screening before elevation to the federal bench. If the commission is created, many dissatisfied citizens will file complaints to satisfy their own grievances, and the commission will then compile a file' which will immediately generate suspicion. The next step is the letter to the busy judge, who probably has neither acquaintance nor recollection of the alleged departure, but who must stop, refresh his memory, perhaps get his secretary and/or law clerk, or the Clerk of Court, or others, to stop, inquire and consult. Think of the time that would be consumed, the aggravations and irritations that would ensue. Finally, on this subject, I agree with your statement that impeachment is the only constitutional procedure for removal. Our founding fathers were wise Suffice it to say I share their confidence in the ability of the Senate of the United States to hire (by confirmation) and fire (by impeachment) a federal judge. S. 1509 seeks to create court executives for each judicial circuit to administer non-judicial activities of the court. Initially, these executives are unnecessary— we have Clerks, Magistrates, Marshals and others available. However, if we are to have an executive, require that he be a judge with at least five years experi ence. This would eliminate the imposition of some career bureaucrat getting a 1 E. G. John Doe v. Judge Roe. little power and exercising a lot, with the ever present hope that his powers would increase. If someone is to look after the courts of a circuit, the work is important enough to call for a position of the stature of judge, or the position should not be created. S. 975 seeks to compel witnesses to testify in certain criminal cases. If this legislation seeks to amend the Fifth and Fourteenth, and probably other Amendments, it is unconstitutional. Despite my high regard of the Senate as the greatest deliberative body in the world, I do not believe the Senate has the right or authority to amend the Constitution. Unfortunately, I do not have a copy of. the legislation, but it may reflect an attempt at political or legal activism that could have awesome and evil consequences. As crime continues to rise we cannot but reflect that the stretching of the Constitution, by judicial legislation under guise of interpretation, has encouraged and aided the criminal element. We need nothing to cause harassment of judges who can best preserve impartiality by having the self-discipline, as well as the responsibility of the power of office. If the word duty is sublime in the dictionary of a noble man, it must certainly have its impact on one elevated to the high office of judge. As matters stand today we have to keep up, first, with current decisions from the Supreme Court of the United States, ten circuits and the trial decisions reported in Federal Supplement. We also have to keep up with State decisions and current legislation. We might call this "parallel reading" but it is necessary to meet our obligation to remain alert to the changes taking place. My remarks may be superfluous in view of your experience as a jurist. We have our hands full taking care of the business of the courts. We do not need much of this legislation. Finally, let me assure you of my confidence in the Senate of the United States. Except for the Office of President, Vice President, Chief Justice or Speaker, I consider membership in the United States Senate the highest honor a man or woman can receive from his countrymen. No public service is so demanding, nor of such honor. I continue in highest regard of that great body. My continued admiration and highest personal regards. Sincerely, ROBERT W. HEMPHILL. U.S. DISTRICT COURT, EASTERN DISTRICT OF VIRGINIA, HON. SAM J. ERVIN, JR., Subcommittee on Separation of Powers, Senate Office Building, Washington, D.C. DEAR SENATOR: I have your kind letter of April 15 requesting me to appear before the Subcommittee on Separation of Powers at a further hearing on May 7-8, 1970. While I would like to be present, I have a long-standing commitment to address the Ninth Circuit Sentencing Institute at Phoenix, Arizona, at 9 a.m. on May 8. In order to be there on time, I must leave Norfolk on May 7. Under the circumstances I trust that you will overlook my inability to be present in Washington on either day. I have read with interest your opening statement at the hearing on April 7. Some of the questions raised are indeed pertinent and I can fully understand your desire for clarification. Nevertheless, the issues may result in a misunderstanding of the purposes sought to be accomplished. As a member of the Judicial Conference of the United States for the past six years, a member of the Advisory Committee on Criminal Rules for about eight years, and Chairman of the Judicial Conference Committee on the Administration of the Probation System for approximately five years, I have never entertained the view that these groups were usurping the powers of Congress, but instead have thought that they served as an aid to Congress as the work involved was so time-consuming that the members of Congress and their staffs could not possibly undertake such work. Congress assuredly has the right, power and authority to take over all of this work. I shall comment only briefly as to the subject matter of your letter, without endeavoring to answer the inquiries suggested by your opening statement which |