Senator ERVIN. Well, certainly, as I tried to elicit from you, and I certainly established there was a very definitie meaning as far as "Treason" and "Bribery" are concerned, and that the "other high Crimes and Misdemeanors" are high crimes and misdemeanors, not some conduct which Congress may individually or collectively, without enacting any law on the subject, think they ought to be?

Mr. REHNQUIST. What do you do with the Archibald precedent, Mr. Chairman?

Senator ERVIN. I don't accept an interpretation of Congress as being an ultimate finding of the Constitution. That would be my answer to that. I don't think they had any basis under the Constitution for impeaching Andrew Johnson.

Mr. REHNQUIST. Well, of course, he was acquitted.

Senator ERVIN. He was acquitted, fortunately, by one vote.

But I think they put this in the Constitution to protect against over-ambitious men like Senator Wade, who was largely responsible for the fight against President Andrew Johnson and who was President pro tempore in the Senate, and who aspired to succeed to the Presidency.

Mr. REHNQUIST. I have no doubt that it was meant as a limitation on the grounds on which impeachment could be brought.

Senator ERVIN. The bill we have been discussing, S. 1506, says, in effect, that judges can be removed from office. The judge still can claim to be a judge and have a title, and he can still draw compensation, but he can't serve as a judge because the Commission can decide he is not able to do anything, and he thus can be effectively deposed from his office as judge. It says this can be done for willful misconduct in office. What is willful misconduct in office?

Mr. REHNQUIST. Well, I think it is a term something like high crimes and misdemeanors. It expresses an area of limitation, but it does not certainly profess to state what willful misconduct would consist of.

Senator ERVIN. If Congress would enact a law or a State could enact a law saying it is a crime to be guilty of willful misconduct and stopped at that, wouldn't the courts have to hold that that was invalid under the due-process clause for failure to prescribe the conduct in such a manner that a person would know whether he is being guilty of willful misconduct?

Mr. REHNQUIST. I would be reluctant to express an offhand opinion on that. Certainly the phrase is found in noncriminal branches of the law, workmen's compensation, guest statutes, and that sort of thing. I must say I am not familiar with any criminal statute which contains it.

Senator ERVIN. Don't you think that any statute that undertook to make a man guilty of a crime if he were guilty of "willful misconduct" would be vague, so vague as to be inavlid under the due-process clause of the fifth amendment if adopted by the Congress and under the due-process clause of the fourteenth amendment, if adopted by the States?

Mr. REHNQUIST. I would have to say it probably would be, though, you know, I certainly don't want that to be thought to be a carefully considered opinion.

Senator ERVIN. Well, it would seem to me that it is a pretty serious matter to disable a judge to hold office upon words that you couldn't convict a man of petty misdemeanor in a court of law.

Mr. REHNQUIST. Well, Mr. Chairman, I don't think that the implication of the bill is that the judge has necessarily been guilty of a crime.

Senator ERVIN. No; but he is guilty of willful misconduct, but I don't believe you can tell me what willful misconduct is.

Mr. REHNQUIST. Well, I can certainly think of examples. I think the Archibald case is a very good example of something that might reasonably be determined to be willful misconduct, although it was not a crime under the laws then existing or now existing.

Senator ERVIN. I know some of the Democrats think it is willful misconduct to vote for Republicans and some Republicans entertain the same views with respect to voting for Democrats.

Senator MATHIAS. A great many.

Senator ERVIN. If this is enacted into law, this means that we can depose a Federal judge who is given a lifetime appointment, even though the Constitution provides that he can be removed only for treason, bribery, or other high crimes and misdemeanors. He could be removed for anything that the Commission established. In other words, there is no protection for a judge.

Mr. REHNQUIST. Well, I think that certainly the phrase willful misconduct connotes some outer limits.

Senator ERVIN. Well, it connotes anything you want it to.

Mr. REHNQUIST. Well, Mr. Chairman, I don't think it is that broad. I think certainly the canons of judicial ethics would be a legitimate source for determination as to what was willful misconduct.

Senator ERVIN. You agree with me, then, that a judge could be removed from office by the Commission under this bill if he violated a canon of judicial ethics promulgated by a State bar or the American Bar Association?

Mr. REHNQUIST. I think if the violation were serious enough that under the language of the bill it was willful misconduct, the Commission probably would be justified.

Senator ERVIN. How serious would it have to be to be serious enough? That is my objection to the words.

is

Mr. REHNQUIST. Well, I could perhaps deal with specific fact situations. Again, I would go back to the Archibald precedent, which a case where the man was rather obviously using his office to feather his own nest in violation of at least two or three of the provisions of the canons of ethics. I think under the language of this bill the Commission would be justified in removing him for that.

Senator ERVIN. Every time the American Bar Association or State bar association changes the canons of ethics, an act of Congress would automatically change to conform to it, although bar associations are not authorized to exercise the legislative power of Congress or the legislative power of a State?

Mr. REHNQUIST. Well, the canons of ethics would be a source on which this Commission would draw, I presume, for its determination

of willful misconduct. It certainly wouldn't be bound by the canons as though they were written on the 12th day.

Senator ERVIN. If the Commission wouldn't be bound by it, how can you have a rule of law in a country without any guide to determine what the law is? I think willful misconduct is a vague word of indefinite meaning.

Mr. REHNQUIST. Well, Mr. Chairman, I suggest it is no more indefinite than the language used in article III of the Constitution, which is that judges shall hold office during good behavior. Certainly an equally valid question is what is good behavior.

Senator ERVIN. I think the Constitution says what that is. It says "good Behaviour." You have to interpret the instrument to effect all purposes of the instrument, and good behavior, in my judgment, is not committing treason or accepting bribes or soliciting a bribe or committing a high crime or misdemeanor, not just willful misconduct. I think that this would mean that if Congress has the power to enact this legislation to remove judges who have life terms, that it has the power to enact similar bills to remove a President whose tenure of office is 4 years and who is subject to impeachment on exactly the same grounds as judges.

Mr. REHNQUIST. I don't agree with that, Mr. Chairman. I think that the specific tenure of the President provided for in the Constitution is a guarantee against removal other than by impeachment. Judges, on the contrary, are limited in their tenure by article III to the term of good behavior

Senator ERVIN. The only difference it says the President's term of office is for 4 years and the judges' is for life.

Mr. REHNQUIST. Mr. Chairman, the Constitution doesn't say the judges should

Senator ERVIN. It says good behavior.

Senator MATHIAS. Mr. Chairman, would you yield at that point? Senator ERVIN. Yes.

Senator MATHIAS. I wonder if there is any analogy between the point you are trying to make between the shifting grounds for which a judge might be removed and the shifting grounds on which we have considered confirmation of Justices here in recent years. There is no doubt that we are applying a stricter standard today than we did a few years ago, and there has been a very clear shift here.

Senator ERVIN. I would answer that question. I say the Constitution makes a very clear distinction between the two, because the Constitution sets out the grounds of impeachment and the Constitution says that the Senate confirms for any reason an appointee to the

courts.

Senator MATHIAS. I think the distinction is-you are absolutely correct-but what I am talking about is the analogy between the way a standard which is as flexible as the standard for confirmation is can change with the changing times and differing ideas.

Senator ERVIN. Well, I don't think there is any standard for confirmation of judges except the persons themselves. Some judges are appointed because they are cronies of the President; some are appointed because they are extremely able lawyers; some are appoint

ed because they are good judges; some are appointed because they have performed political services at some time for the party. I say it is almost like willful misconduct.

Senator MATHIAS. Now, Mr. Chairman, you have come full circle to the point I was trying to make.

Senator ERVIN. Evidently Hamilton was one of the participants in writing the Constitution.

Mr. REHNQUIST. Yes, he was.

Senator ERVIN. And he states emphatically in The Federalist, papers which were written to induce the States to ratify the Constitution, that the only way to remove a judge from office was by impeachment.

Mr. REHNQUIST. Yes, he did.

Senator ERVIN. I guess I have belabored this point long enough.
Do you have any questions?

Senator MATHIAS. No.

Professor BICKEL. Mr. Rehnquist, I have a couple of questions. I have to say I have no opinion of my own. I am genuinely inquiring. What struck me were the three examples that you give to make the point that the impeachment isn't necessarily the only constitutionally permissible way of removing judges.

First, a point of information on the first of the examples, the statute of 1790, and which you read apparently as authorizing the removal of a judge upon a criminal conviction without impeachment proceedings.

Was it ever used, do you know?

Mr. REHNQUIST. So far as I know, it wasn't.

Professor BICKEL. The reason I ask that is because it brings to mind a general point that sometimes the early practice is a good basis upon which to rest a constitutional construction, and sometimes it is not. Citations to the Alien Sedition Act as a basis upon which to rest a modern construction of the first amendment have come into some disuse. I think you might agree, and by the same token, these scattered early examples.

Indeed, I should think that the Circuit Court Act of 1801 is the counterpart perhaps to constitutional districts of the Alien Sedition Act and it falls in much the same state of disrepute. Congress took greater care not to deprive the judges of office and distribute them around the circuit. You remember Judge Mack and a number of other judges-in fact, I am not sure Judge Archibald wasn't one of those who served-had their tenure that way because the practice was not followed of removing a judge because his place was abolished.

So I just wonder about the total, the particular individual and the total validity of the practice of these early instances as a basis upon which to construe the impeachment law.

Mr. REHNQUIST. Well, let me reply as best I can. It seems to me that an act of the first Congress, which is the same Congress that passed the Judiciary Act of 1789, and, as you know better than I do, contained men like Madison and Ellsworth who had been at the Convention and participated extensively in the debates, is some indication, regardless of the fact that it has never been used or, indeed, that its constitutionality has never been passed upon, that at

least those of the framers who were then in the Congress thought this was a perfectly permissible way of removing judges. So far as the circuit court repealer, the only reason I mention that in my statement is that the statement by Senator Stone of North Carolina as to the propriety of doing what was done at that time dwelt at some length on the fact that impeachment was not the only ground for removal. Even though it was during a debate, there was no real reply to him by any of the opponents of the act, who of course were finding every reason they could to oppose it.

Certainly the fact that the circuit courts were abolished, I would not adduce as an argument that really supports the position that 1506 is constitutional. And as to the redistribution of the Commerce Court judges, I suppose Congress is always free to grant more rights than the Constitution requires.

I wouldn't draw the inference from that, without at least reading the debates, that they felt that they could not have done otherwise. Professor BICKEL. I wasn't drawing that inference. I sought to undermine the value of that particular precedent by suggesting that hindsight came upon them quite soon. The act was seen, as the Alien Sedition Act was soon seen, as a mistake, and it was probably unconstitutional and a highly politically motivated act and was the kind of practice that was not good and ought not to be followed. I don't want to pursue that.

I think your answer obviously meets the points and is a matter of judgment.

On to another point-it struck me, as you and the Senator were struggling with the meaning of the operative language in the Tydings bill, that the Code of Military Justice, which is, of course, a criminal statute, in its way, to which most due process and other provisions of the Constitution are applicable, does, or at least used to, make it a crime to engage in conduct "unbecoming of an officer and a gentleman," which is an infinitely vague phrase.

Mr. REHNQUIST. Doesn't it speak of misconduct in the face of the enemy, too?

Professor BICKEL. Very well. I do know that that troubled people. It was not a very highly regarded section of the code on precisely the grounds that Senator Ervin mentioned, but there may be some precedents.

I wonder whether in a possible construction of the constitutional impeachment provision, one couldn't explain the term "high Crimes and Misdemeanors" as going beyond the criminal code and yet very severely limited in that it would go beyond the criminal code only in so far as conduct affecting the functions of the office was concerned, that is to say, just to pick examples out of thin air, you couldn't impeach a man for publishing articles or engaging indeed, if you will, immoral conduct off the bench, and yet you could. if this interpretation were adopted, for conduct that affected the discharge of the office like that of sobriety, alcoholism, not doing his work. not writing his opinion, soldiering on the job and so forth, which wouldn't be crimes, the criminal code wouldn't include them precisely because they had to do only with the function of that particular