this is documented in reports, they are excellent, somebody did their homework. Some of these committees, as a matter of fact, have been funded. The Ellison-Gesell committee was funded and the committee to study the problem of competency to stand trial, that was a 5-year study that was properly staffed.

And all of these things, let me say, whether it is the committee of the Judicial Conference of the United States or whether it is the committee of the conference of the circuit, in most matters, if they are important enough, require proper staffing, and this is the difficulty. I served for a time on one of the committees of the U.S. Judicial Conference, and I found that the staff was just plain inadequate. I tried at that time, some years ago, to involve the law schools, working with the committees, and I made such arrangements, but the Conference saw fit not to go through with it.

As a matter of fact, one of the things I got while I was a member of the Committee on the Administration of Criminal Law, was a look at the problem we had at that time with the probation system. I got Georgetown University (Kenneth Pye, George Shadoan, and Father Joseph Snee) to do a very fine preliminary study of the probation system, but the fact of the matter is that the committee couldn't confine it. We didn't have the staff to do it. We weren't set up to do it. But there was never any followthrough in the plan of getting universities and law schools involved.

It isn't only the law schools. In some of these problems you need some other kinds of information. But there was no input.

I think that one of the things we might consider is how to provide staff. The administrative office doesn't really have enough staff to do the job. The person is assigned. He does the best he can. He is assigned to several other committees. He has his other work. So you don't get anything in depth.

Professor MILLER. Thank you, sir.

No further questions.
Mr. LANCASTER. Judge

Judge BAZELON. Yes.

Mr. LANCASTER (continuing). I have only two short questions. First, when there is disagreement among members of the Judicial Conference on a given resolution, do you think that the side that loses ought to be allowed to express its dissent in a minority report? Judge BAZELON. I am for dissent and I am for the publication of dissent.

Mr. LANCASTER. The other question I have is this: At the earlier hearings it was said that very often the Federal district court judges learn of the actions of the Judicial Conference only by reading the newspaper the next day. To what extent do you think the Conference is representative of the full judiciary?

Judge BAZELON. Oh, that is a hard one. I wonder. I don't know what kind of mechanism would be better: it is about as good as you can get, I suppose. So many things come before the Conference that it would be utterly impossible to be fully advised on each one of the natters. Sometimes your off-the-cuff reaction may be good, and sometimes it may not be. If you knew more about it, it would be

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better, but you can't know everything about everything that is presented to you. So in that sense

Senator ERVIN. That is the vote call. I will have to leave, but Judge, before I do I wish to express a deep appreciation of your appearance here and to say you have given us some very stimulating testimony.

Judge BAZELON. Thank you, sir. I thank you for listening to me.
Senator ERVIN. You can continue.

Judge BAZELON. I have another, about 5 minutes, 10 minutes.
Mr. EDMISTEN. Judge, may I ask one question?

Judge BAZELON. Certainly.

Mr. EDMISTEN. Apparently those who propose commissions such as that provided for in S. 1506, and others, have a belief that there is widespread corruption, laziness, and inefficiency among the members of the Federal judiciary. Do you have any notion that that is true? I really wonder why now we have a rash of such bills. Is the system bad?

Judge BAZELON. I have never even heard the flimsiest kind of rumor about corruption in the District of Columbia Circuit, not even the flimsiest, but there were accusations about soldiering on the job and not working hard enough. I know that in our court, as I say over 20 years, I may have disagreed with other judges. Between the judges we have had our disagreement but everybody worked hard. Everybody has a different style of working. Some people take longer than others. But I don't know what goes on in California, or what goes on in Minnesota or Louisiana.

Mr. EDMISTEN. Judge, apparently some people must think the situation in the District of Columbia is rather crucial because there is embodied in the District of Columbia crime bill a commission which will be appointed by the President. I notice that it will have some members of the judiciary on it. It will have a couple of members of the bar, and it will have some laymen on it, appointed by the President to ferret out and find those judges who are not bringing dignity to the office. It is very broad. I just wonder what the reason for this is. Is this supposed to be a model for the Nation?

Judge BAZELON. I don't know; maybe they are just experimenting. Maybe they are just trying to get some experience under something like this because you don't have the constitutional problem in the District of Columbia, that is with respect to the Court of General Sessions. But if you are asking me in general whether I think there is corruption in the Federal judiciary on any important scale at all-if that is true I don't know about it, and I don't see that as the reason.

I do think there are problems of health. Now, that is a problem, and it doesn't go away. People do get sick and people do have drinking habits and that sort of thing. Now, that does exist and a man is the last one to know when he is beginning to fail health-wisephysically and mentally. That is a problem. The way we have handled it, when we have had health problems, we do it by gentle and tactful discussions.

Mr. EDMISTEN. The persuasive power of human beings, I suppose, helps, rather than coercion?

Judge BAZELON. Yes, but I must note the experience, for example, in New Jersey where they run a tight ship. I understand in the administration of courts there, if a judge is holding a case too long he doesn't get a salary. Now, the fact that they found it necessary to do things like that in New Jersey indicates that this may be a problem in the judiciary.

Mr. EDMISTEN. Congress did at one time prefer charges and impeach a man for excessive drinking. So, I suppose, if we put up with the cumbersomeness of impeachment, we can handle any of these situations in Congress, as Senator Ervin suggested, if the procedure were streamlined. I am not really asking you whether you favor any of these sorts of measures.

Judge BAZELON. No, you are just telling me.

I haven't had any experience which tells me that these kinds of mechanisms are absolutely essential at the moment. I have no objection to them, except on constitutional grounds. But I don't see any dire necessity for them. I do think there has to be something. We have to recognize that there are judges who need, let's call it, moral persuasion.

Mr. EDMISTEN. Your constitutional objections are pretty strong. Judge BAZELON. I didn't hear that last

Mr. EDMISTEN. I say if you do have constitutional questions about the Commission, I would say it is a rather serious matter to you. Judge BAZELON. You are talking about S. 1506?

Mr. EDMISTEN. Yes.

Judge BAZELON. Oh, yes. But as I said earlier, I think it might be helpful to take part of that idea and use it as a kind of sifting mechanism. You will probably get the job done just as well without the constitutional objections.

Now, if it develops that there are problems that can't be dealt with under this broad suggestion I have made, you can move on from there, taking it one step at a time. I don't know what the next step would be, constitutional amendment or a test case. Maybe we've got

one.

Thank you.

Senator ERVIN. Thank you very much, Judge. We certainly appreciate your appearing and giving us the benefit of your views. Please call the next witness.

Mr. EDMISTEN. Mr. Chairman, our next witness is Hon. William Rehnquist, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice. Prior to his appointment as Assistant Attorney General Mr. Rehnquist was engaged in the private practice of law in Arizona. In 1952-53 he served as law clerk to Supreme Court Justice Jackson.

Senator ERVIN. Mr. Rehnquist, I am delighted to welcome you to the subcommittee and express our deep appreciation of your willingness to come here and give us the benefit of your views on this matter we are considering.

Mr. REHNQUIST. Thank you, Mr. Chairman.

Senator ERVIN. You might identify the gentleman with you.

Mr. REHNQUIST. Yes, with your permission, Mr. Steve Lockman, an attorney in the Office of Legal Counsel, one of my special assistants, is here with me.

He has worked with me in preparing my testimony before the Tydings committee and in preparation for this committee. With your permission I ask that he be permitted to sit here at the table. Senator ERVIN. We are delighted to have Mr. Lockman.

STATEMENT OF HON. WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. REHNQUIST. I have prepared a short statement, Mr. Chairman. I gather that the testimony is going to be more or less in the nature of cross examination, so I will be happy to file it if you wish and just answer questions.

Senator ERVIN. It will be well. We will put the complete statement in the record, but it would be well for you, if you don't care to read the statement, just to summarize it briefly.

Mr. REHNQUIST. Thank you.

I briefly recapitulate the testimony I gave before the Tydings committee to the effect that in my opinion and the opinion of the Justice Department the provisions of S. 1506 relating to a new judicial commission to remove judges in cases of failure to conform with the good behavior standards of the Constitution are constitutionally permissible.

And the second point I expressed before the Tydings committee was the idea that the provisions of S. 1506 dealing with involunatry retirement of judges for disability were very arguably constitutional since any judge who was involuntarily retired for disability would retain a judicially enforceable right to perform the amount of work which he was able to perform.

In response to a question contained in your letter to me, Mr. Chairman, I have attempted to find out the extent to which the Judicial Conference of the United States and the Justice Department have collaborated in bill drafting in the past, and whatever was done, of course, took place before my tenure and so I don't speak with personal experience on that point.

My impression is that that has happened on infrequent occasions in the past, that it is not a regular procedure at all, and that when that has occurred that has been with the notion of pooling specialized knowledge for the purpose of coming up with a more satisfactory draft of a bill relating in some way to the judiciary.

That would be a summary of the statement that I have filed with your committee, Mr. Chairman.

Senator ERVIN. The Constitution itself provides only in one way for the removal of judges, does it not?

Mr. REHNQUIST. The only way referred to in the Constitution, Mr. Chairman, is impeachment.

Senator ERVIN. Yes. It provides for impeachment for treason, bribery, or other high crimes or misdemeanors.

Mr. REHNQUIST. Yes.

Senator ERVIN. Well, now certainly treason is a crime which is defined in the Constitution itself.

Mr. REHNQUIST. Yes, it is, Mr. Chairman.

Senator ERVIN. And bribery is a well-defined crime.

Mr. REHNQUIST. Yes, and it was in 1789.

Senator ERVIN. The words "other high crimes or misdemanors" certainly refer to crimes as far as literal meaning is concerned.

Mr. REHNQUIST. I beg pardon?

Senator ERVIN. I say the words, "other high crimes or misdemeanors"-misdemeanor is a crime, isn't it?

Mr. REHNQUIST. Certainly in my understanding, in its ordinary usage it is a crime, though used in that context I am not entirely sure what it means. If it had said felonies and misdemeanors one would have assumed that it was intended to include all crimes. Using the term crimes and misdemeanors, I think there is a good deal of doubt as to just what it was intended to include.

Senator ERVIN. Do you not believe that the reason that the framers of the Constitution put in these words was to keep a partisan Congress from removing from office a presence they didn't like or deposing him and robbing him of power.

Mr. REHNQUIST. Oh, I don't think I would reach that conclusion, no. My memory goes to the Archibald case which was, I believe, the first time that the Senate actually convicted a sitting Federal judge. I don' believe that you could make out that he had committed a crime. Senator ERVIN. Well, it was really very difficult to make out that Andrew Johnson-who of course was acquitted on impeachment charges-had committed a crime because his main offense was that he had vetoed the Tenure of Office Act and vetoed some reconstruction acts.

Mr. REHNQUIST. Yes, but then Congress passed the Tenure of Office Act over his veto, as I recall.

Senator ERVIN. Yes, and the Supreme Court in a later case-the Myers case-held that the Tenure of Office Act was an unconstitutional act, itself.

Mr. REHNQUIST. Certainly there were strong political elements in the trial of Andrew Johnson.

Senator ERVIN. Don't you agree with me that those words in the Constitution have a definite meaning, and that they might mean something other than what Congress may interpret them to mean at a given time.

Mr. REHNQUIST. I think there are really two questions contained in your question. One is what do the words mean, and the second is who is to interpret what they mean. My reading of the Constitution leads me to think it is the House and the Senate who are to be the judges of what the terms mean. They are no freer, I suppose, than a court would be to just rove at will in defining the terms.

Senator ERVIN. Well, that theory, if adopted, would mean that these words had no meaning as set out in the Constitution, but they only had such meaning as Congress itself from time to time might give them.

Mr. REHNQUIST. I can't agree with that, Mr. Chairman. I think that any time you have any language that requires construction, no one would say that the body charged with construing it is entirely free to roam at will. And I don't suppose Congress is any more free than a court is in construing. But to me the words themselves don't admit any ready definition.