Our forefathers had a long and bitter quarrel with the king about the position of judges in the American colonies. The colonists wished them to hold office during "good behavior" to escape control by the crown. When the King of England demanded the surrender of colonial charters, the colonists resisted. A proceeding in quo warranto was commenced in the English courts inquiring by what warrant they claimed rights and it terminated predictably against the colonists by judges serving at the pleasure of the king.

It was against this background of history, Senator Ervin, as you well know that Edmund Randolph of Virginia proposed an independent national judiciary to serve during good behavior at the 1787 meeting in Philadelphia to amend the Articles of Confederation. Mr. Dickinson of Delaware moved to make the tenure of judges terminable by the President on demand of both houses of Congress, similar to the British system, but that and all other proposals were rejected and the Federal Constitution was adopted in its present form.

Very often the proponents of various types of laws, and you have indicated in your opening statement that there are some 27 bills pending in this Congress alone which in one form or another would give some judges or some administrative bodies or some hybrid group of people who are partly judges and partly administrative officials, the power to supervise in much greater degree than the Constitution seems to permit the activities of Federal trial judges.

The Federal Constitution provides a very workable system. It provides a special court made up of the members of the Senate, specially sworn on oath or affirmation, to try judges and other officers who have been impeached, that is, charged by the House of Representatives for lack of good behavior, and I think it is important to keep in mind that the Constitution itself says that the Senate shall have the "sole" power to try an impeached judge and that the House shall have the "sole" power to impeach or to enact articles of

impeachment.

There are other restrictions. In order to protect the independence of our Federal judges, it takes two-thirds of the members present in the Senate to convict, which is very similar to how we operate in the S. Court of Appeals here in the District of Columbia where our Judges sit in panels of three and two out of the three judges can, of ourse, decide the case. The President cannot pardon a convicted judge. His power under the Constitution to pardon is absolute with ne exception, and that is to protect the independence of the diciary and to protect the integrity of the trial system in the Senate, the President cannot pardon a person who has been imeached and convicted.

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And then there are additional penalties. As we all know, a judge ho has been convicted in an impeachment trial by the Senate sitting a Court of Impeachment can be removed from office, disqualified for life from holding any other office of honor, trust, or profit under he United States, and then he can be subjected to double-jeopardy, nd tried criminally in addition to the impeachment trial.

Now, the language of the Constitution gives Senator Tydings and Some of the others who are well-intentioned proponents of some of

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the pending legislation a great deal of trouble. They say that judge can only be impeached for treason and bribery and other hig crimes and misdemeanors.

In Professor Kurland's article last year (1969) in the University o Chicago Law Review, he rather carefully canvasses the history of th debates in the Congress respecting the repeal of the first Judiciar Act of 1801 and quotes some of the language of some of the Member of the Congress respecting what "good behavior" and what "misde meanor" and these other terms in the Constitution meant at that tim and mean at this time. And seemingly the thought has always bee that the word "misdemeanor" contemplated all kinds of unfitness and lack of good behavior. There is no limitation in the Constitution as t what type of questions respecting good behavior, that is, the tenure o the Federal judge, can be brought up in impeachment proceeding and that has been the history of impeachments.

The managers of the impeachment of President Andrew Johnson although he wasn't a member of the Federal judiciary, clearly defined the scope of the language in the Constitution as follows:

An impeachable crime or misdemeanor may consist of a violation of th Constitution, of law or an official oath or of duty by an act committed o omitted, or without violating a positive law, by abuse of discretionary power or improper motives, or from any improper purpose.

In short, the Constitution in that language protects the indepen dence of our Federal judges consistent with the lessons of history and yet it provides in this special court in the Senate a procedur which will protect against judges who are unfit or even agains judges who are unwilling or unable to fulfill the duties of office.

The history of the impeachment proceedings respecting judges, s far as I am advised, shows that there have been 12 such proceedings all set out in my statement. I think it might be helpful just to touch very briefly on the types of conduct that were involved.

On page 8 of my statement, the last paragraph, we can see that starting almost from the beginning, Federal Judge John Pickering was impeached for misconduct in a trial on the beach while intox icated. Now, this is one of the things that I have noticed in Senator Tydings' and others' comments, that there is no way-the language Senator Tydings has used repeatedly is apparently there is no way we can deal with the unfit judges, and he describes them as being lazy, senile, alcoholic, corrupt, and so on, in a number of words of that kind which other people copy and which always leave the impression that there are many unfit Federal judges, and thi machinery of impeachment cannot be used and has never been used for removing an unfit judge, and yet here we have in 1803 Judge Pickering impeached and convicted for drunkenness.

In 1804 it was Associate Supreme Court Justice Chase. He was impeached for misconduct in trials impairing the confidence and respect of the Court. Now, that is just about as far as you can go. He was acquitted, which again is the very nature of the institution. We want to see the judges acquitted if they are not guilty of the offenses with which they are charged.

In 1826, Federal District Judge James Peck was impeached for misconduct in office for misuse of the contempt powers. He was tried and was acquitted.

In 1862 we had a Federal judged impeached for supporting the seccession of Tennessee and acting as a judge of the District Court of the Confederate States, who was tried, convicted, disqualified from office.

In 1903 it was Federal District Judge Charles Swayne who was impeached for padding his expense accounts, and using railroad property in receivership for his personal benefit, and misusing the contempt power. He was acquitted in the trial.

In 1912 it was Federal Judge Robert Archbald of the U.S. Customs Court, impeached for trips to Europe, improper appointment of a jury commissioner, who was tried, convicted, and removed from office.

In 1926 in the eastern district of Illinois we had a judge impeached for gross abuse of power, profane and abusive conduct in the courtroom, collusion, partiality and favoritism, and he resigned during the trial.

In 1932 it was a Federal district judge who allowed excessive fees, who was tried and acquitted.

In 1936 District Judge Ritter was impeached for, among other things, practicing law while serving as a Federal judge and filing false income tax returns. He was tried, convicted, and removed from

office.

Now, those 12 examples show that for almost any type of lack of "good behavior" the machinery is there. It works and works quickly, and it also works to protect the innocent judge.

When Senator Mathias was talking about the litigious nature of our society these days, I couldn't help but think of the problem of the increasing load of litigation.

Of course, the very nature of our adversary system is that in a law suit there are two parties. Somebody wins and somebody loses, and it is human nature that the people who lose are inclined to think the judge is feebleminded, corrupt, ill-advised, biased, or partial, that something is wrong and he couldn't possibly have decided the case on the merits, and I guess we are all kind of guilty of this when we shake our heads and walk away when the judge has ruled against us. Senator ERVIN. There is an old couplet that is applicable: "No wretch e'er felt the halter raw with good opinion of the law."

Mr. SHIPLEY. How true it is. So my concern is that with the expanding invitation to people to attack judges in private litigation and the seeming willingness of the judicial councils to accept those attacks and to go beyond the administrative functions of seeing that the calendars are kept up to date, and that the courthouse, the physical equipment, the machinery of the judicial system is operated properly, we have the judicial councils getting into the business of disciplining judges. It seems to me they have extended their powers some of the cases that I have looked at and been involved in actually into the area of really defrocking Federal judges, of really removing the office from the judge whether they remove the judge from the office or not.

In closing, just let me say that the Congress has under other sections of the Constitution provided all kinds of controls respecting the Federal judiciary which are not inconsistent with the Federal Constitution or the independence of the Federal judiciary and which supplement the impeachment procedures of the Constitution. We have under title 28, for example, section 132, which permits the clerk to postpone a case where the office of the judge becomes vacant until another judge can be assigned, and as I understand that section, it would cover a case of the type Judge Lumbard was talking about where a judge just disappears and will not handle a case. If in substance the business is not going forward, another judge can be designated to pick up the case.

We have section 144 where a judge can be disqualified for bias: section 455 where a judge must disqualify himself for a conflict of interest. We have a series of sections commencing with section 201 of title 28 where a judge can be convicted of bribery and all types of crimes and misdemeanors under the criminal laws. And we have the "all writs" statute that we referred to, the All Writs Act, section 1651 of the Code, which gives broad authority to the Supreme Court and the courts of appeals to issue writs of mandamus, writs of prohibi tion, and all other common law writs which might be necessary to aid their appellate jurisdiction.

With this whole web of laws, it seems to me that the independence of the judiciary is well protected and the public interest is wel! served by continuing to observe the limitations, the sole authority provided in the Federal Constitution for removing Federal judges from office, until such time if ever, that it would be wise to amend the Constitution itself.

Let me just touch on this. I know that in 1937 the American Bar Association thought this problem could be reached through legisla tive action, what I think is an illusory problem of unfit judges. I think all the machinery is there, always has been, and can be used tomorrow if necessary when there is a good case against a judge when he is unfit. The people who do not like that, who cannot prove him unfit, who do not have a good case, or want to remove him because they may disagree with his politics or his philosophy, but cannot make a case that he lacks good behavior in the meaning of the Constitution, want to get at him some other way, so they constantly propose these new types of approaches which involve administrative control or supervision of the judge in the day-to-day work of his office.

It just seems to me that in view of the many efforts that have been made, of the great debates held in Congress when Congressman Hatton Sumners of Texas was chairman of the House Judiciary Committee respecting the legislation at that time, which Professor Kurland deals with at some length in his article I referred to, that al of these avenues have been exhaustively researched and debated and rejected from the days of the Constitutional Convention in 1787 and in the years when Thomas Jefferson himself changed his mind and decided the Federal judges ought to be removed by some procedure other than the constitutional procedures. This grew out of his feeling that judges who had been appointed for life should be removed when

the political parties changed control of the White House. This is exactly what gave rise to the debates in 1801 on the First Judiciary Act. Judges were appointed for life and the next political party took over when the Jeffersonians succeeded the Federalists. The first item on the agenda was how do we get rid of those Federal judges. It would be a very serious thing for our Nation if this got to be what happened to Federal judges, that every time we had a change at the White House we would have a change of Federal judges. We would be right back to the problem referred to in the Declaration of Independence.

I just want to refer to a couple of statements by statesmen in the history of our country. Thomas Jefferson, of course, was widely quoted when he said, "In questions of power, then, let no more be heard of confidence in man." This is what Chief Justice Lumbard was talking about, our confidence in our judges despite broad and fuzzy language to do what is right, should allay any fears as to 28 United States Code 332.

Thomas Jefferson said, "Let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution." Not all judicial councils have practiced the restraint of Chief Judge Lumbard's second circuit. That is why section 332 should be repealed.

The great historian, Samuel Pettengill, back in the 1940's in some of his writings said:

The Constitution is a coat of mail which man himself fashioned for his own Protection against the abuse of power by his servants in the legislature of Congress whom he may displace at election time or by impeachment, and against whose invasion of his rights he can appeal to the courts; against his executive officers, whom he may dismiss by impeachment or by ballot; against his judges, whom he may remove for lack of good behavior. His government is not his master as the king or the dictator has always been, but his servants.

Section 332 cannot be permitted to weaken the impeachment procedures of the Constitution.

And Abraham Lincoln in one of his speeches exhorted all of us. to study the Constitution, saying:

Let every American, every lover of liberty, every wellwisher to his posterity swear never to violate in the least particular laws of the country and never to tolerate their violation by others. As the patriots of '76 did to support the Declaration of Independence so as to the support of the Constitution and laws let every American pledge his life, his property, and his sacred honor.

This subcommittee has a great opportunity and responsibility after all these years since 1939, since the proposals of the American Bar Association in 1937 respecting legislation of the kind pending in Congress to control Federal trial judges, and the American Bar Association changing its official position, to take action to repeal section 332. In 1964 the American Bar Association decided it would take a constitutional amendment to change the method of determining good behavior other than by impeachment. The recent decisions involving the significance of section 332, and the actions of one of the circuits where the judges sit in the same chairs, and apparently adjourn as a court of appeals and constitute themselves as the judicial council, and without any hearing on any of their actions,