would not be inherent constitutional powers, but would be implied from the language of the statute.

Professor WINTER. I do not think that the broadest construction as you said, would for a moment read either of these statutes broadly if, in fact, they were just agencies composed of five laymen. And, indeed, I would think that they would find such statutes constitutional in anything but the most narrow kind of application. I must say the same thing about S. 1506, that if you look at thatthat Commission to remove judges as being nothing but a creature of Congress, and if you think that is constitutional, it means you can also commit the President to name which five people decide which judges are active on good behavior or-if you look at it that way, we have no problem; it is unconstitutional.

Professor FISH. If you think of this as a system which is designed to permit the courts to govern themselves, a self-governing system. Now, it is true that nowhere is it articulated that the courts are to deal with misbehavior problems under article 3, and the councils have been called upon to do this from time to time. Perhaps that is implied power, which the judges have implied from the fact that they have been delegated self-governing functions by Congress; they are then to operate under article 3, enforcing the good behavior provision, although there has been no specific mention of this in the hearings.

Professor WINTER. I take it, you are saying that a judge can be removed through devices other than impeachment?

Professor FISH. It is possible that impeachment perhaps is not the exclusive method of removal.

Professor WINTER. What are the other methods of removal? Professor FISH. Well, impeachment would be the primary. Professor WINTER. It probably would not be if we had other methods.

Professor FISH. Well, it is necessary, of course, that impeachment be spelled out, because there it is not the judiciary which is doing the disciplining, it is another branch of Government, a coordinate branch of Government, namely Congress. And, naturally, its power has to be spelled out in the Constitution.

Professor WINTER. Well, taking S. 1506, it is not the judiciary doing the policing. It is five judges named by the Chief Justice, and their action is then reviewed by the Judicial Conference, presided over by the Chief Justice. That action is then reviewed by the Supreme Court, presided over by, guess who? You know, that is not the judiciary, is it, policing anything?

Professor FISH. Well, I do not know. The alternative, of course, would be to have all the Federal judges gather for what would probably turn out to be a lynching party.

No. I do not think that would be feasible at all. Obviously, if one is going to enact legislation that affects the good behavior provision of article 3, it would have to be via some rather small group of judges, not the entire judiciary. I think it is sort of facetious

Professor WINTER. I do not like to take up too much time, but why does it have to be the judiciary? I take it in passing legislation effectuating the good behavior provision, Congress is acting under the "necessary and proper" clause. Why does Congress have to name

judges? Why cannot Congress name five law professors or five political science professors? Why does this Commission to review the conduct of judges, if it is constitutional, have to have only judges?

I see nothing in article 3. Indeed, let me say that article 3 seems quite inconsistent with that, because article 3 vests the judicial power in the judges, and what you are talking about does not seem to be the judicial powers, asking them to undertake a very different kind of task.

Professor FISH. Then the question becomes whether the good behavior clause is enforceable at all. What you are saying then, is that this is dead language in the Constitution and cannot be enforced, that only high crime and misdemeanors, contained elsewhere in the Constitution, can be enforced.

Now, as to the question of whether law school professors or deans, or whoever it might be, can sit as a court of judicial discipline, it seems to me you would have to analogize with the Myers case, which permits, of course, the President to remove, without the consent of Congress, officials of his executive department who have been appointed with the consent of the Senate. And if he can do that, then the question is, is it possible for the court, for the judiciary, to operate in the same fashion, enforcing what otherwise would be dead language in the Constitution, namely, the good behavior provision? Because presumably the high crimes and misdemeanors standard is a higher standard and it can be utilized only by another branch of the Government.

This is designed to protect the Judiciary from a breach of the separation of powers.

Professor WINTER. You seem now to be suggesting the proposition that the judiciary can remove judges without legislation, that it is a function of the judicial power for the judiciary to remove without congressional legislation. The question I was raising was if you need congressional legislation, why do you restrict it only to setting up a commission of Federal judges?

Professor FISH. Well then, who is to do it?

Professor WINTER. But there is nothing in the Constitution that speaks to that at all.

Professor FISH. There is nothing in the Constitution about removing executive officials, either.

Professor WINTER. Yes, it does.

Professor FISH. Where?

Professor WINTER. Impeachment.

Professor FISH. Then what do you do about the Myers case?
Professor WINTER. Maybe the Myers case is wrong.

Professor FISH. Well-of course, the Legislature, too, can discipline its own Members. Only the judiciary is unable to do it. The Powell and McCarthy cases are instances where the Legislature has disciplined one of its own Members.

Senator ERVIN. The President has the power to remove an executive officer because an executive officer, in a sense, is his agent. But the Congress could not remove an executive officer except by impeachment, could it?

Professor FISH. Congress could not.

Senator ERVIN. The difference is the executive officer owes his whole existence to the President. He is carrying out a function of the President. He is nothing but an agent of the President. There is

no set tenure.

Professor FISH. I think in the Myers case, there was a set tenure involved, 4 or 7 years. It was a postmaster case.

Senator ERVIN. But the 4-year term is nevertheless removed at the pleasure of the President. They do that in the case of marshals and US. district attorneys. At least, I see a valid distinction there between the President's removing one of his appointees and

Professor FISH. Even though the Senate had to consent to the original appointment?

Senator ERVIN. Even though Congress has given him a definite term, but Congress has approved an agent of the President. If the President does not want the service of that agent any more, I think he has clear and apparent authority, as I understand was held in the Myers case, to remove him, even though he has been confirmed by the Senate.

Professor WINTER. At least the President has appointed the man. There is no precedent that the judiciary appoint people yet. Broad construction may take us anywhere.

Professor FISH. Although they may influence the appointment, or seek to influence the appointment.

Senator ERVIN. I will just make one observation about the legal services of OEO. The States license lawyers. They run the services in the State courts, as well as Federal, and States have statutes prohibiting champerty and solicitation of business, soliciting business for lawyers. The Murphy amendment merely talked about overseeing lawyers, to see if they are violating State statutes.

I think the States have a real interest there. I think it was officious meddling by the Judicial Council when they started trying to say Congress should deprive the Government of the powers of the State to whether these legal services, which they are not going to litigate. in their own behalf, whether they are going to go out and solicit business and whether they are going to be guilty of champerty.

I suspect we had better let you go if you have a plane. I want to thank you very much, and I hope you will let us know when your article appears in the Law Review.

Professor FISH. I told Mr. Edmisten I would send him an airmail copy.

Senator ERVIN. This examination and discussion has been so interesting, I hate to cut it off, I do not want you to go, but I want you to get back to North Carolina, because, if I were in your place, that is where I would go. If I had my choice between Heaven and North Carolina, I would take North Carolina.

Thank you very much.

Professer FISH. Thank you.

Senator ERVIN. We are adjourned, subject to the call of the Chair. (Whereupon, at 5:20 p.m., the committee adjourned, to reconvene subject to the call of the Chair.)

THE INDEPENDENCE OF FEDERAL JUDGES

THURSDAY, MAY 7, 1970

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin (chairman) presiding.

Present: Senators Ervin and Mathias.

Also present: Rufus L. Edmisten, chief counsel and staff director; J. Marshall Lancaster III, professional staff member; Prof. Arthur S. Miller, consultant (George Washington University Law School); Prof. Ralph K. Winter, Jr., consultant (Yale Law School); and Prof. Alexander M. Bickel, consultant (Yale Law School).

Senator ERVIN. This morning, the Judiciary Subcommittee on Separation of Powers resumes its hearings on the Judicial Conference of the United States, the judicial councils of the circuits, and the independence of Federal judges.

When we first began our hearings in April, the testimony we heard raised many more questions than it answered. Several of our witnesses testified that the Judicial Conference has very little power and that its jurisdiction is limited to routine housekeeping. But from other witnesses, we heard that the Conference has virtually free jurisdiction within the Federal court system. One witness even took the position that the Judicial Conference would continue to pursue its present activities if the statute which created it were repealed.

In April, we spent a good deal of time asking whether it is proper for judges on the Judicial Conference to comment on the merits of legislation that is pending in the Congress. After all, with the exception of a very few bills, nearly every act of the Congress is likely to be the subject of litigation. And some of the bills on which the Judicial Conference has spoken in recent years-bills that concern wiretapping, legal aid, and so on-are almost sure to incite broad legal controversy. Yet the judges of the Judicial Conference have, in part, committed themselves to public positions on several of them. It seems to me that if the Conference adhered to the legislative intent behind the act and spoke only on the need for additional judges, the need to improve the mechanics of court procedures, and the need for added funds to implement improvements, this would not be a problem.

We also asked whether it is proper for the judges of the Judicial Conference to collaborate with the Department of Justice--the

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