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THE JUDICIAL TENURE ACT

WEDNESDAY, SEPTEMBER 14, 1977

U.S. SENATE,

SUBCOMMITTEE ON IMPROVEMENTS IN

JUDICIAL MACHINERY OF THE
COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The subcommittee met, pursuant to notice, at 9:07 a.m., in room 2228, Dirksen Senate Office Building, Senator Dennis DeConcini (chairman of the subcommittee) presiding.

Staff present: Romano Romani, staff director; Robert E. Feidler, counsel; Michael J. Altier, deputy counsel; Kathryn M. Coulter, chief clerk; and Brian Clymer, staff member.

Senator DECONCINI. The Subcommittee on Improvements in Judicial Machinery will come to order.

Today we will hold a hearing on the proposed Judicial Tenure Act. The bill, S. 1423, is before the subcommittee for consideration.

S. 1423 was introduced by Senator Nunn of Georgia and provides a means for the removal or censure as well as authorizes the involuntary retirement of Federal judges.

The theory of this legislation is to give meaning to the provision in article III of the U.S. Constitution that says, "judges, both of the Supreme Court and inferior courts, shall hold their offices during good behavior."

The bill establishes a Council on Judicial Tenure, consisting of one member from each of the circuits, elected by the circuit and district judges of each circuit at a judicial conference of each circuit, together with one member elected by all the judges of the three special courtsthe Court of Claims, the Court of Customs and Patent Appeals, and the Customs Court.

This body would be authorized to receive complaints and, if frivolous or outside the scope of the act, to dismiss them. If the complaint is not initially dismissed, the Council will refer the complaint to the circuit judicial council of the appropriate circuit, to the Chief Justice of the Supreme Court or a chief judge of one of the three special courts. At the local level, an inquiry will be made into the allegations and a written report will be prepared and forwarded to the Council on Judicial Tenure.

Upon receipt of the report, the Council on Judicial Tenure will further investigate the matter and if a sufficient basis exists to warrant a hearing, the Council or its representatives would appear before the Court on Judicial Discipline as an advocate for any recommendation of the Council.

(1)

The Court on Judicial Discipline, that is the Judicial Conference of the United States or a panel thereof, would have full powers of a court of the United States. The court has the power to temporarily suspend the accused justice or judge from exercising judicial powers during the pendency of the inquiry. Possible dispositions of cases brought before the Court on Judicial Discipline could result in an order of removal, censure, involuntary retirement or dismissal.

Upon petition, the Supreme Court shall review an order of the Court on Judicial Discipline. However, in the case of a petition filed by a Supreme Court Justice, the Supreme Court is automatically disqualified and such appeal shall be heard by the Temporary Court of Disciplinary Review.

Since the introduction of this bill, the subcommittee has been focusing on the several key aspects of the bill. It is my hope that this morning's hearing will emphasize these and result in the approval of a bill which will be a working and acceptable alternative to the cumbersome and seldom used impeachment process.

The witnesses today will include Senator Sam Nunn of Georgia, and former Senators Joseph D. Tydings and Roman L. Hruska, each of whom have been active in this important area of judicial reform.

We will also be receiving testimony from the Attorney General of the United States, Judge Griffin B. Bell; and Mr. John A Sutro and Mr. J. Michael McWilliams in their capacity as representatives of the American Bar Association's Standing Committee on Judicial Selection, Tenure, and Compensation. It is my understanding that California has had a working judicial removal commission for several years. I hope, if time allows, that Mr. Sutro will be able to provide us with a brief synopsis of the operation of the California system. Our final witness will be Prof. John MacKenzie of the New York University Law School.

I might add that the American Bar Association, the American Judicature Society, and the Judicial Conference of the United States have each endorsed this concept in principle. I also endorse this concept and hope that today's hearing will promote discussion which will allow us to move forward on this important subject.

I welcome you, gentlemen, and I appreciate your being here today. Before we begin testimony, I would ask that the bill and the proposal which has been developed by staff and distributed to each of the witnesses be included at this point in the record.

[Material follows:]

95TH CONGRESS 1ST SESSION

S. 1423

IN THE SENATE OF THE UNITED STATES

APRIL 29 (legislative day, APRIL 28), 1977

Mr. NUNN (for himself and Mr. ALLEN, Mr. BARTLETT, Mr. BURDICK, Mr. CHILES, Mr. DECONCINI, Mr. GARN, Mr. GOLDWATER, Mr. HELMS, Mr. MORGAN, Mr. TALMADGE, and Mr. ZORINSKY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To establish a Council on Judicial Tenure in the judicial branch of the Government, to establish a procedure in addition to impeachment for the retirement of disabled Justices and judges of the United States, and the removal of Justices and judges whose conduct is or has been inconsistent with the good behavior required by article III, section 1 of the Constitution. Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That, this Act may be cited as the "Judicial Tenure Act”.

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PROCEDURES FOR REMOVAL AND INVOLUNTARY

RETIREMENT

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SEC. 2. (a) Chapter 17 of title 28, United States Code,

7 is amended by adding at the end thereof the following new 8 sections:

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1 "§ 377. Council on Judicial Tenure; establishment

2 "(a) There is established in the judicial branch of Gov3 ernment a Council on Judicial Tenure to further the honest, 4 impartial, and efficient administration of justice in the courts 5 of the United States in accordance with the duties imposed 6 upon it by law. The Council is authorized to appoint and fix 7 the compensation of an executive director and such other 8 employees as may be necessary to carry out its duties under 9 this Act.

10 The compensation of the executive director and other 11 employees shall not exceed the compensation prescribed by 12 law for level V of the Executive Schedule.

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(b) The Council shall be composed of one member 14 from each circuit, one member selected by the judges of 15 the Court of Claims, the Court of Customs and Patent 16 Appeals, and the Customs Court. Each member shall be a judge who is in regular active service. The member from 18 each circuit shall be elected by the circuit and district judges 19 of each circuit at a judicial conference of each circuit held 20 pursuant to section 333 of this title. The one member repre21 senting the Court of Claims, Court of Customs and Patent 22 Appeals, and Customs Court shall be elected by all the 23 judges of those courts. A judge who is a member of the 24 Judicial Conference of the United States may not serve 25 simultaneously as a member of the Council on Judicial

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