be impeached, they are also subject to good behavior. By the very terms of the Constitution both judges and Justices enjoy their office only during good behavior.

It is to me an inadequate argument to say that it's inappropriate that inferior judges should try them. My answer to that is, a grand jury could indict a Vice President, a grand jury on which sits a plumber, an automobile mechanic; he is tried by a jury of his peers in the good old American way.

I don't for a minute admit that Justices are beyond criticism. They are being criticized from hell to breakfast; they are being criticized by law review commentators, including Raoul Berger.

I start with something quite different. I don't start with an exalted notion of looking up to the Justices, they are just judges. I say the President is our "Man Friday," and I say Justices are our "Men Friday"; they have to be called to account like everybody else. The minute I say Supreme Court Justices can't be tried by the lower court, then I have to say the same thing for a Court of Appeals judge.

Even the President would have been indicted if he hadn't been pardoned, and who would he have been indicted by? By a bunch of ex-Presidents?

Senator HRUSKA. By the Senate.

Mr. BERGER. He would have been indicted in a criminal proceeding by a grand jury.

Senator HRUSKA. Impeached by the House, tried by the Senate.

Mr. BERGER. He could be impeached by the House, but he could also have been indicted.

Senator HRUSKA. Yes, indeed.

Mr. BERGER. Who would he have been indicted by, Senator?

Senator HRUSKA. Well, I think that the process of accusation and trial, that is for the regular court to do, but not on the point of removing him from office. Mr. BERGER. That's right, let's forget about the removal.

Senator HRUSKA. He could not have been removed by a criminal court.

Mr. BERGER. I agree with you on removal. But, what we are talking about is the inappropriateness of trial. What I am saying is that the most exalted officer in the Government, the President, can be accused by an ordinary grand jury, and can be tried by an ordinary jury.

So, when you say that is inappropriate, I just can't buy that.

Senator HRUSKA. Fine, you made your point on it. Now, what about point No 2?

Mr. BERGER. Oh, well, I believe that is also against everything I said to you this moment. That virtually insulates judges who are crooks in office.

Senator HRUSKA. Could you consider point No. 2 in connection with point No. 3?

Mr. BERGER. The point I am making, history has proven we certainly cannot use this cumbersome impeachment process to get rid of a little crook. And when you take point 2 and say, neither a judge or a Justice may be removed except by impeachment, you are saying those crooks can enjoy immunity; and history proves it.

So, what I'm saying to you, here is a housecleaning job that you can't afford to undertake, nor can the democracy afford crooks in office, because it discredits the judicial system. Albert Johnson was sitting in judgment for 30 years when the whole community knew that he was a crook. Therefore, I reject No. 2 on practical grounds.

Bear in mind, what they are really talking about is sort of an Emily Post etiquette; they are not talking about constitutional barriers. The Ainsworth point says it's inappropriate and he doesn't believe Justices should be removed, except by impeachment. And I say to you that is an argument that just insulates misbehaving judges.

Mr. Senator, I want to make one point because it is for me a grand underlying fundamental. I was tremendously distressed when, right after Ford took office, the newspapers were full of the fact that Jerry was going in his bathrobe to the door, picking up his bottle of milk and his newspaper. Well, I have done that for 40 years, and nobody ever gave me any points for it.

So, all I want to say to you is this, Senator, we've got to get out of the habit of looking at people in public office as exalted figures. They are what Iredell, one of the founders who later became a Justice, said, "They are our servants and agents". You use the word "accountability", that's a grand word. I don't think anybody in public life has beat the drum more consistenly for Congress than I

have, but that is not because I regard Members of Congress as a collection, with all respect, of demigods, but because it is a marvelous debating forum; it's the "national town meeting"; there will always be found men who have the courage to differ. But that doesn't attach a special sanctity to them; we attack them, we later sweep them out of office. I want that vein of thinking not only for the President, but for the Congress and Supreme Court Justices, too.

As I said, I'm not an activist, and I hold myself free to criticize judges who are activists. I hold myself not only free to criticize judges but to say, if they are unworthy, remove them. Don't immunize them in any way, that would be my answer to Judge Ainsworth.

Senator HRUSKA. Well, these points I bring up because the Judicial Conference was trying to be helpful to the cause, the consideration of some sort of legislation in this area. And by laying out these points, I think they hope that we are going to subscribe to them and approve them without a lot of consideration and perhaps without a lot of variation and amendments, and some changes.

But, they are helpful to set the limits within which we can with some assurance begin to draft a bill to submit to the Senate and later to the House.

May I suggest this, professor, you are a busy man, too, it's not only the Members of the Senate that are busy, but if you will take this statement of Judge Ainsworth and consider further those five points, and submit a brief commentary on each point and include it in the record, it would be helpful.

Mr. BERGER. I must regretfully decline, I'm in the middle of another book, and it is engaging all my energy. I'm an old man, and I've got to stay with that job. I don't have a contract to live forever.

But, I think you made a good point, Mr. Senator, when you said within certain limits; let me reemphasize, we certainly shouldn't countenance removal of a judge for his opinions because, for example the Court of Appeals is nonactivitist and a district judge is activist. Notwithstanding, I don't like activitists on the bench who revise the Constitution, and dictate policy, instead of trying to give effect to the intention of the framers, as far as we can ascertain.

But, having said that, I still wouldn't want to give the power to this Conference for removal on grounds of activism. So, I'm with you-boundaries such as abuse of power, criminal misconduct, neglect of duty-those are grounds that commend themselves to anyone. Any man that comes to court and waits for hours on a judge who doesn't show up because he's in a drunken stupor will appreciate that.

Now, to go back-and maybe this is unworthy of me, maybe I'm prejudiced— were I a judge. I would have the professional feeling. "Well, we really ought to be removed only by impeachment", and that is very unlikely to happen in any case because in the 170 years we had just nine impeachments of judges—well, maybe I'm off there, but certainly of judges, and one Justice, not more than nine.

So, a judge that sees that will say, "Well, chances of impeachment-and I'm not talking about high-minded judges; I'm talking about the few judges who without that deterrent might engage in exactly that kind of misconduct we had down the years-there may be just enough "clubishness" among the bench to say, "Well, let's leave it as it is". But I want a more convenient process.

For example, I was unsympathetic with regard to Justice Douglas. He stayed on the beach when he was really a very sick man.

Senator HRUSKA. Thank you very much, professor. I kind of like to recall the slogan of one of my professors in law school, he said, "If in my lecture you think I'm right, agree with me and support me; and if I'm wrong, tell me about it". The attitude that you have displayed here today sort of epitomized that. So, thank you very much, personally, for your appearance. Senator BURDICK. Senator Scott?

Senator SCOTT. Thank you, Mr. Chairman.

Professor Berger, I'm in agreement with your thought that any bill that is passed should bind all judges. As I recall, the same sentence is used in the Constitution-good behavior relates to all judges, both the inferior court and the Supreme Court Judges. I appreciate your feeling on that, and certainly, you presented a very persuasive and very logical discussion. And yet, sometimes our court decisions may not appear to be as logical as you have been today; and going back to the early law, even you admitted that were you a judge, that perhaps you would feel that you should be removed only through the impeachment process.

Now, having said that, I wonder if you have any decisions whereby a Federal judge could be removed without, initially, the impeachment process.

Mr. BERGER. It has never been used.

Senator SCOTT. It has never been used. Well, I have some doubt as to the constitutionality of it. I just wonder, I know that you are advocating the enactment of this bill, and certainly I am in agreement with the theory of it. But, we are talking about new grounds. And, I don't believe that any of us would be dogmatic enough to say this is the way the court would hold-we don't know what the court would hold if it was presented.

You favor an enactment of this bill. Would you back it up by any constitutional amendments with regard to the tenure of a judge? It takes some time to get a constitutional amendment adopted; and, of course, it also takes time, as the Chairman remarked last week, to get a measure like this enacted and tested, so that it actually would be in effect.

Mr. BERGER. Are you advocating an amendment?

Senator SCOTT. Oh, yes, I do advocate an amendment. I have sponsored an amendment for a 10-year term with reconfirmation at the pleasure of the President and the Senate.

I am not disagreeing with the remarks you made, and I hope you are right. But I don't believe we know whether you are right or not until the court hasMr. BERGER. Well, if you don't pass the bill, the court will never speak. Senator SCOTT. I'm in agreement with you.

Mr. BERGER. Thomas Jefferson said that, Mr. Senator.

Senator SCOTT. Now, you have heard the classic example of a lawyer addressing the Supreme Court, and one of the Justices remarked. "But, counsellor, that's not the law", and the lawyer responded, "It was until Your Honor spoke”. We don't know what the Supreme Court is going to hold.

Mr. BERGER. Well, where does tht leave you?

Senator SCOTT. We might pass this law, but we should back it up by a constitutional amendment for tenure of judges, in reserve if the court ultimately holds the law unconstitutional?

Mr. BERGER. Oh, you are suggesting that in addition to passing a law of this kind there should be a supplementary move to get an amendment?

Senator HRUSKA. Will the witness yield? The lights on the clock indicate that a rollcall vote is in process on the Senate Floor. We will recess briefly until the Chairman returns. I presume he is on his way to the Senate Chamber to vote. Senator SCOTT. Mr. Chairman, could we get an answer to this because I cannot come back.

Senator HRUSKA. Sure.

Senator SCOTT. If you would, Mr. Berger.

Mr. BERGER. I see the logic of your proposal, Senator Scott, but since I don't regard the issue as debatable as you do-and I say this not on the basis of any authority I could claim, I say this on the basis of study in depth, of having spent many, many weary months-I am convinced myself and I might not have convinced you-but I would urge you to do what Senator Hruska did. I would urge you to take a couple of hours to read those chapters.

Senator SCOTT. Mr. Berger, I have the highest respect for you as an authority on the Constitution. I'm not talking about that. You may be right, and the Supreme Court could be wrong, but they still would be the governing authority. Mr. BERGER. Let me address myself to that.

Senator SCOTT. Let me add one other thing

Mr. BERGER. No, no, no, if you will forgive me, sir; let me address myself to the question you asked me, so we can have the record clear on that. Senator SCOTT. All right.

Mr. BERGER. You asked me why I'm not for an amendment. The reason I'm not for it is because I'm convinced that the issue is not nearly as debatable as you think it is.

Senator SCOTT. All right.

Mr. BERGER. Wait, now

Senator SCOTT. You might want to rethink this, because last week we recited several Justice of the Supreme Court in dicta in which they disagreed completely with what you just told us.

Mr. BERGER. You've got Rehnquist, and Burger, and Blackmun who were read into the record by Senator Hruska.

Senator SCOTT. These were remarks made in decisions by the Supreme Court of the United States.

Mr. BERGER. As you mentioned, dicta.

In any event, we've got an honest difference of opinion. You asked me would I back an amendment as a supplement, and I stated for the reasons I stated that I wouldn't.

Senator SCOTT. You do not feel that it should be

Mr. BERGER. That it's necessary. I don't think it's necessary, and it would encumber your efforts to get a bill through.

Senator SCOTT. Mr. Chairman, I'm going to have to answer to my name. Thank you very much, Mr. Berger, I've enjoyed hearing your thoughts.

Senator BURDICK. We'll be in recess for about 10 minutes.

Mr. BERGER. Very good, sir.

[Whereupon a 10-minute recess was taken.]

Senator BURDICK. We are certainly grateful for your testimony today, Professor, I have enjoyed it very much. I didn't have a chance to read your book last night, but I got a pretty good review of it today.

Mr. BEREGR. You have two footnotes which I wouldn't have thought of citing in my statement.

Senator BURDICK. The thrust of your testimony is that we should settle the matter. We had hearings in the past, some years ago; and now we should settle it. May I ask you this question. We know we could settle it by constitutional amendment, don't we?

Mr. BERGER. May I candid with you, Mr. Chairman?

Senator BURDICK. Yes.

Mr. BERGER. That's the "kiss of death". Getting a constitutional amendment requires an issue of the highest moment which agitates the whole community. It's got to be something that excites public passions. Do you think for a moment you could whip up any interest that a senile judge, or a sick judge

Senator BURDICK. I'm not so sure the public isn't ready for something.

Mr. BERGER. I would bow to your judgment of the public pulse because that is your field, and you are much better in judging political events than I am. But, I have seen enough in my fairly long life of what happens to amendments. I can remember, for example, the struggle by a Southern politician and Everett Dirksen, to undo the reapportionment decision, and what a struggle he had.

To get it through the Congress you need two-thirds on both sides; whereas, to get a bill through you just need a majority. And, an amendment is, to me, the last measure of desperation, if you can't do it any other way, it's there, you can make a stab at it. But my own feeling is, before we start talking about the law, why should the Congress have to grind to a halt in order to consider whether to remove a crooked judge, or whether a man is too old to serve on the third circuit, for example, like Buffington and Davis.

It just makes good sense, good administration that Congress should be free to deal with the tremendous issues that are before it every day.

Senator BURDICK. We are not arguing about that, the necessity of something being done; I think we all recognize that.

Mr. BERGER. The reason I make that point, forgive me, Mr. Chairman, is that's the kind of a reason that the Supreme Court itself would fully understand, and say, "We ought to do our own housecleaning."

Senator BURDICK. I just want to let you know that we had some witnesses here before this committee, and one testified as to a judicial tenure act in Virginia; and the other one on the judicial tenure act in California. Both of those were created by a constitutional amendment by those States.

Mr. BERGER. But, in California amendments are a dime a dozen, they are accustomed to amending their constitution, whereas in our whole 170 years we have had 25 or 26 amendmens; it's like pulling teeth.

Even with all the power of women's lib, you've still got a problem of getting the equal rights amendment across.

As I say again, with genuine deference to your political judgment, you are picking a hard road because I don't think it will excite enough public interest. This is really a housekeeping measure, that's the way it looks to me.

Senator BURDICK. One thing has been intriguing me a little bit on the historical background you gave us today. What was the historical background of the term "high crimes and misdemanors"; your testimony seems to separate the serious crime, the impeachment, and the lesser offenses of misbehavior, misdeeanor. What is the historical definition of misdemeanor, is that something big, or something small?

Mr. BERGER. To begin with, high misdemeanor has no relation at all with misdemeanor. This is an extraordinary fact, but it is so. Remember, impeachment was a parliamentary proceeding. The first impeachment, back in about 1380, of the Duke of Essex, proceeded for treason and other high crimes and misdemeanors. So, what was meant by high misdemeanors?

Now, long before there was such a crime as misdemeanor, parliament developed high misdemeanor, and it usually proceeded with it against a minister for a high crime against the state, whereas misdemeanors were based on offense against the individual. Misdemeanors in English law never entered parliamentary impeachment; high misdemeanors under parliamentary law, never entered into English criminal law. So, you start with that.

Now, a high misdemeanor was a very serious thing. They proceeded, for example, for neglect of duty; the admiral who has neglected to safeguard the sea; the high commissioner

Senator BURDICK. Excuse me. Off the record.

[Discussion off the record.]

Mr. BERGER. To put it in a nutshell, the Parliament proceeded against high ministers of the King, that's were it originated. You had favorites like the Duke of Buckingham; or Lord Chancellor Francis Bacon-that was one of the early impeachments, about 1620-who was engaged in acts which amounted to bribery. He was impeached and removed from office. They went after the bigshots for serious offenses, and usually as a means of tearing down the favorites of King Charles II, like the Duke of Buckingham, who was subverting the constitution. That was the most serious crime, subverting the constitutional processes. Now, normally good behavior, breaches of good behavior concerns small fry, a chief forester, or something of the sort; it didn't concern serious high crimes; such breaches weren't even crimes for the most part. But, diligent conduct of the office can embrace misconduct of office of any kind.

Am I responsive to what you are seeking?

Senator BURDICK. You are responding very well. I wanted the record to show that the misdemeanor and its historical background is not the misdemeanor referred to in common parlance as misdemeanor today.

Mr. BERGER. That is right. If I may add to what I have said; This is to be found in my chapter that deals with high crimes and misdemeanors and I must say I was really gratified that a very, very large part of the House Judiciary Committee was persuaded by my analysis, and their report is in very large part based on it.

But the first mention we get, as I say, of a high misdemeanor is way back in 1380, and it wasn't until about the early part of the 16th century-almost 200 years later that you run across a misdemeanor for the first time. Before that time, curious as it may seem to you, but I think it's worth mentioning, there were felonies, very serious offenses, and trespasses. You are familiar with trespass; in your torts law, if you recall, you could bring a writ of trespass; and there was also a crime of trespass. Now, trespass disappeared and was supplanted by misdemeanor in the early part of the 16th century.

So, you have totally different origins. I found the historical materials that showed what high crimes and misdemeanors meant; high crimes and high misdemeanors. And a high misdemeanor was an entirely different breed of cat than a misdemeanor in criminal court. Traditionally, in England. you don't find high misdemeanors in criminal court, and you don't find misdemeanors in impeachment proceedings.

Senator BURDICK. Apparently, what they did, they removed the distinction between them. If it was a serious crime it was a felony or a high misdemeanor. Mr. BERGER. Well, for the purposes of criminal law, a felony, for example, would be murder, rape, things like that. The lesser crimes originally were trespasses, assault, battery. But, a misdemeanor was definitely a lesser crime than a felony, quite different, in the criminal proceedings. But it is irrelevant to impeachment because it never crept into the impeachment parlance. Senator BURDICK. I see. Staff has a question or two.

Mr. WESTPHAL. Professor Berger, if I can call your attention to page 14 of the bill-I believe you have a copy of the bill in front of you-and in the beginning of line 5 on that page they propose a new section 372a, removal of judges. In the language, beginning at lines 10 and 11 they say that the ground for removal is that the conduct of such justice or judge is or has been-and I quote “inconsistent with the good behavior required by article III section 1 of the Constitution."