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2-1965 Removal of Judges- Federal and State Jack E. Frankel
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Recommended Citation Jack E. Frankel, Removal of Judges- Federal and State (1965). Available at: http://repository.uchastings.edu/publicity/8
This Article is brought to you for free and open access by the Judicial Ethics and the National News Council at UC Hastings Scholarship Repository. It has been accepted for inclusion in Publicity & News Clippings by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. SINCI': President Eiscnhower's hean at REMOVAL LiCk in his first inl11 LilcTe has l)cel1 deb:llc :liJOllt pl'csiilellli;d inabilily ;111(1 disalJilily ;llid ;tiso
il1s,ll1iL)" prosLraLion by disease from which currence and o[ what valuc is tile judgmcnt there is 110 hope of recovery-these should under such circumstances?"; ;] II be reasons for removal, rather tila n Iha t the a Prestige of Court Damaged In considering a remedy, Charles Evans Hughes observed, "The exigency to be The prestige of the Court was damaged thought of is not illness but decrepitude."" in a chain of events reverberating for years At the Attorney General's Conference on following Justice Robert Grier's feeble Court Congestion and Delay in Litigation mental condition in 1868 when the Court held June 16 and 17, 1958 in Washington, was divided on the legal tender cases. 6 Re D.C., United States Court of Appeals Judge ferring to Grier, Justice Miller, who was Warren E. Burger spoke about, on the dissenting side, wrote, "We do not say that he did not agree to the opinion. . .. keeping the federal judiciary staffed with \Ve only ask, of what value was his con- men and women who possess the physical 2. II New York State Bnr Assoc. Reports, p. 40. Ihe Court had felt because of Ihe condition of .Jus· 3. Goff, Old Age and The Supreme Court, 4 Am. J. lice Field. It occurred to the other members of the Legal Hist. 95 (960). Court that Justice Field had served on a commince 4. Carson, The History 0/ the Supreme Court of the which waited upon Juslice Grier to suggest his United States, Philadelphia (892), I, 28l. retirement, and it was thought that recalling that 10 5. 14 Howard iii; Fairman, The Retirement 0/ Fed his memory might aid him to decide to reI ire. eral Judges, 51 Harv. L. Rev. at 407 (938). In discU68- Justice Harlan was deputed to make the suggeslion. ing McKinley's case, Fairman calls it "remarkable." He went over to Justice Field, who was sitting 6. Fairman, Mr. Ju.stice Miller and the Supreme alone on a settee in the robing room apparenlly Court, 1862.1890, Cambridge (1939) p. 149; Hepburn oblivious of his surroundings, and after arousing v. Griswold, 75 U.S. 604; 8 Wallace 603 (1870). him gradually approached the queslion, asking if 7. Miscellaneous Writings of the Late Hon. Joseph he did not recall how anxious the Court had be· P. Bradley, ediled by Charles Bradley, p. 74. come wilh respect to Justice Grier's condilion and 8. Fairman, supra note 6, pp. 351, 378. the feeling of the other Juslices that in his own 9. ld. at 376. interest and in that of the Court he should give up his work. Justice Harlan asked if Justice Field did 10. Swisher, Stephen Field, Craftsman of the Law, J. not remember what had been said to Justice Grier p. 442; Goff, supra note 3 at p. 100. on that occasion. The old man lislened, gradual ly n. Hughes, The Supreme Court of the United States, became alert aDd finally, with his eyes blazing with p. 75. Hughes has given us this story about Field. the old fire of youth, he burst out: "Yes! And a "I heard Justice Harlan tell of the anxiety which dirtier day's work I never did in my life!" RE MOVAL OF .J UIlGES- FI 'J)F. I~AL ANIl STAT E alld Illell!al vigor which is indispensable to d llct had beglln shortly arter he took h is an eITecLive systCll1 or justice .... 1 would oath of orTice in I !)25. lI o t presun1e to say how many United States Why should the pubJ ic be impotetl[ in judges now in active service are not physi. cally able to perl'orll1 their work adequa tely, the face of jlldicial wrongdoing?I '1 While bu L every observer knows tha t there are there is no reason to think that more tha n 11 10re t11;uI a lcw .l~ a slllall nllmber o[ Ced eral jllc1ges have rc Thc possihlc cOllscqllcnccs ol thc al )senrc lllained in (ATice a lthough lI nflt, there is or a workable reJl}ova l Il lcthoc\ were starkly slifficiellt data to point to the dimensions rcvcaled in the U nited Statcs Court o[ of the p rohlem in federal as well as state Appeals ror the Third Circuit a generation courts. ago. ]llclge Josepll BurTin gLOn, who by 1935 Compulsory retirement ror age, favored had become scnile, signed decisions actual ly by many and now the Jaw in about 20 wri [ten by a d ishonesl colleag\le, J \ldge ]. states, has onl y been a partial approach. vVarren Davis .'~ J oseph llorkin in The Cor President Wilson was 65 at the time o f his ru jJt .J1ldge p ublished in 1962 details the stroke, and forrestal suffered his break separate venal courses of Davis, Martin T. dO\'JI1 a t 56. M axine V irtue, in her val uahl e Manton o[ the United States Court o[ court survey, recently n oted, "The desira Appeals [or the Second Circuit, who was bility of making j udicial retirement com convicted and sent to prison in 1940, and pulsory (openly or covertly) on a calendar Albert W . .Johnson, U nited States District age basis, once w idely accepted, is now Judge for the Middle District of Pennsyl under q ueslion." 15 vania. Davis left office in 1941 and ] ohnson A m odern judicial program requires tha t in 1945, both a fter prosecution started. there be an ' efficient way of d etermining Complaints against Johnson's official con- judicial misbehavior and disability and, if warranted, forcing a termination of service whether or not the office is elective and apart from a mandatory retirement for age. Disability, as the most common gl'ouncl which properly should act as a disqualifica tion from further judicial service, is in that respect the main issue. Legal reform is notoriously slow. It has been difficult to face the question of imro ducing a method which would compel a Joyal public servant to leave judicial offi ce due to a disabling sickness. However, par ticularly with the advent of reasonable p ension benefits, there has developed an awareness that notwithstanding Ollr h uman sympathy the general welfare deserves ade JACK . E: FRAN KEL is executive secretary 0/ the Co mmtS~wn o~ J ~,di c iol Qualifications 0/ the State 0/ q uate consideration. Long and bItter ex Cul,/or'.lIu. Thu lS a. modified version 0/ an article appearing currently m the Pennsylvania Bar Associa. perience has taught that the natural course tlOn Quarterly. of events often leaves the public interest 12. P roceedings, (Allorney General's Conference) 63. 143. See the reviews of Borkin's book in the Wall 13. Root Refining Co. v. Universal Oil Products 169 St.reet Journal, December 12, 1962, and the New York F. 2d 514 at 533. ' TImes Book Review Section, January 26, 1963. 15. Virtue, Survey 0/ Metropolitan Courts FiTUl l Re· 14. Borkin, The Corrupt Judge. pp. 100, 79, 120, 181, port (1962), Univ. of Michigon Pres~, p. 207. I SO JOURNA L. OF TIll:: J\:\IUlIC:AN .lIJl)ICA'Jld{I·: S()( :I LTY Vol. ",S, N I) . 'J t0LlIly u"protected. Tllis applies to boLiI gre;ltcst. 1;lrc(: e\'er jlrescllted. ,\t ()IIC lilllC l'cderal and Slale courlS. ollly Lh ree Senators \\'CI'C presellt · ;IIHI for Catalogllillg lile Ilormal remedies relU leS tell d;IYs we presellted evidellce to WII;11. W;I S Lil eir suitabil ity and effectiveness. practically a ll Cillpty CII;1l1d )cr." 17 Reg;lrd Cm ai udge' s la III i I y, colleagues or pi I y in).j the Ritter illl pC;Jc lllllClll, he oh ~crv cd sici;11l be relied U pOIl to sal'cguard lile pub "thnc wcre :i(j votes 1'0)" cOllv ict iOIl ;\11<1 oj' lie ill tcrest? those 5G votes oll ly live were oj' the sanle ls it an ;Inswer tilaL a Lrial judge WillI pol itical party as the .J lIdge h('ing tricc\."lx illlpaired LI{;lllties GIll be reversed Oil ap A I~J:\H ILlrv;ml Law R eview NO Le SUIil peal. or all appellate j udge can ue overruled marized the problem th is way, l)y il is collcagl lt"s? IllIpc;lclllllcnl as a lIletllOd o r rCllIovill ;'; If Lile ollin: is elective, how call the VO lers federal judges hilS h CCl! thc subjcn of IOllg m ake a si gnificam evaluation, e.\j>ecially if stalldillg dis\:JtisLlnioll. (1)CII to ;!II lhe o\)· there is 11 0 election when the issue arises? jectiolls to Icg i.·da livc justice, i m pe;lclnTlell t Is ther e allyone lamiliar w ith this topic has heell periodically cemllred as partisa n, ille lrcr.tuill, unduly cUllll)ersome, illlli overly wllo will argile tllat t ile traditional Anglo expcllsivc. 10 Alllcr iean legisLt Li ve proced Ilres o r address alld ill lpe;lcilment are anything b llt hope Ninety years hdo)"e .Iustice ;,\'[il ler ad less except ror grievous wrongdoing? dressed ti le New York St;lte nar Associatio n Alexander 1-i;ulli iLon argl,eci agams[ COln The Last Two Impellclunents pel l ing retiremen t o[ j lIdges. The want of a provision [or re moving lll e The last two impeachments o[ federal judges Oil account o( inabil ily has \)eell a judges wllicll so patently showed tile ddects subject of colllplaint. But all considera te in the few sllch cases ever urought were: men will I)e sensil)le []lat sllch a provision Harold Louderback, U. S. District Judge would either not be practised lI pon or would be more liable to ;11)\Ise til a ll ca ic: II Lor the N orthern District o[ Cal ifornia lated to allswer any g'oo d pllrjlosc. T he impeached and acquitted, 1 a:lg; Halsted L. 1l1ellSuration of the fac ulties of the Illind Ritter, U. S. District Judge (or SOllthern has, I believe-, no place in the catalogue of District of F lorida-impeached and con known arts. An allempt to fix the boundary victed, 19:\6. Hatton VI/. Sumners, w ho was between the regiolls of ability and inability, would much oftener give scope to personal Chairman of the Judiciary Committee o f and party attachments and enm ities thall the H ouse of Representatives in the 1930's, advance the interests of ji,stice or the public wrote, good. The result, except in the case of in sanity, must [or the IHOSt part be arbitrary; The Sellators are b usy legislators, not and illsanity, without any formal or express .Judges. W hether or not a J udge is guilty of provision, may be sa(ely prolloullced to be bad cOllduct, for which under the Constitu a virtual disqualificatiol l.~O tion he loses h is right to hold office, is a justifiable question. The atte mpt to have H H amilton's principal concern was to the Senate properly try these relllov;d cases, place the judiciary on an equal footing' called impeachments, utterly fa ils. IG with the o ther two uranciles oE government According to Stllnners, who had b een one and to p r otec~ the judiciary hom outside of the House Managers in the Louderback attack, a plan of removal relying on tbe impeaChment, that case "resulted in the judiciary itself could not be criticised for 16. 13 Penn. Bar Assn. Q. 150 (1942) 8ill H.R. 146, 18. Supra note 16. Sumners. 19. 51 Harv. L. Rev. 330,332 (1 938), Tire Exclusive 17.31 Ill. L. Rev. . 631 (1937), Removal 0/ Federal /lCSS 0/ the Impeachment Power U/l dcr the COllstjlulioll. Judges. 20. Federalist No. 79. Ft:1Jrlllll)" 1i)(j 5 J 81 pCrlllilliIlg kgislalive ()\" t'xeClIIive ill In die prescllLly rCII)()vahk III II'llyS differcnt i'crcllce. il( II illl )CaChlllCI1I, lilaL the "II ! CX;\IH!er )11, Jr., pH y the ;1 II COIIStittll)1l I Ill!,; SCllOl 1 ( k{leral IJllcnLs, Illive illlpi 11;l1iOll or [IIC put iL lhis way in 1~)J(;, illg "g()od 1)(.'llltvi()r" lelltlrc.~'1 BOLh posi tiolls have lllcrit a1L110tlg-11 any ;lni()ll hy It is IlOl 10 he lost sight oj lhal lhc jlldi- (iii! dCplll'l1) I. \\'I(~ illlciided Ilot SI:ttlite would iJe Op!)()s{'d as lIllCO[lSI it ti- ( Iy a co-oniili dClll I' nd prol)alJly prevent dcbale ( il1ll11Ch of li II Rcpresen Slimners, >,[ j>ossil)lc )1 Ii cOlltrol I otllcr i llil uCllced hy iJ is Ji r~l,hand k now Iedge oi hr;lllciles; lind thal illlpcadlllleill 01 judicii" officers Ily Congress was oilly perllliLled I)e tlte lInsatisractory natllre of illlpcaclllllCI1Ui, calise 110 other or heLter way or prolecting and WiLh Lhe SlIpport 01: th~ Allierican Bar lile public i'rolll lhe dercliuiollS or llleir Association, did his hest LO lJring- ;ll)(Hlt a Jlldges had I devised .... n JU40 bill was j l is evidell lore, that II for Ie relliovaL 1I1COlllPCICilt .J which TIIC need has long been recognil.ed. Re redllccs [0 It Illinilllllill thc illflllCIlCC oj' the tirelllent IJenciils, not always Ilde'lllale, arc legishtive aud excculive (ICparLIlICIlIS o( the govcrllllicllt UpOIl lite judiciary, will Il(, now li1UCll hetter, at least ror rederal IJcndil Lo the 'Jlic if il pro- Action lid be taken in :!: leels the llli I lice in lcderal )\ ictions allllO 1: oUice or lllo:-;e Ih(,lerOr.~1 standing United States Possibility of Constitutioual Remedy prellle COlin would prohably require Its exemption. The Judicial Conference of: tile Legal writers have rllOughtfully exam- United States cOlild service an effective pro ined tllC need well as the lilities in tile Federal courts.~7 11 J lIstice Ph I ilJson o[ have ma ined that since Ollse Supreme deeply o[ Representatives has "the sole power of about the lack o( an effective means ot re impeachment" (Article I, Section'2 (5)) and moving unfit judges, called upon the State the Senate has the "sole power to try all Bar of California and the Judicial Council . !)cachments" (Article I, Sec 3(6)), the questioll though some' \ power to civil officers 1m- 1I usly obj consti t pc;!chmcn t exclu- arnendment was and sive so any change requires an amend the November, ]960 election by a wide men t.~I\ 0 tilers have concluded that legisla margin, thus establishing tile Commission tion would ue constitutional as civil oflicers on Judicial Qualifications.2~ Simpson, Impellchments, Pa_ L. Ucmoval-SOille Possibilities Ullael 051,1125 (191; Story, Commel/Illries 011 the slilalion, 28 Miell. L. (1930) ; Supra note 17; COllstitutiO/l of the U"ited Stlltes, pp. 416-439, "Juui Moore, JlUlicifll Trial and RemovlIl of Federal Judge." ci~ry-Tenul'c of Office" 5th Edition 1891. 20 Texas L. Hev. 352 (1942). 22.· Supra note 19; Fairman, The Retirement of Fed 25. 26 Amer. Bar Assoc_ J. i60; 65 Amer. Bar Assor. eral Judges, Sl Harv. L. Rev. 397, (1938); Simpson, Reports 78 27 ArneI'. Bar Assoc. J. 552; Supra note 16. nole 21. 20. States Cod to Title 28, § 3 i L Yankwich, IIll/Hwc!lIlwnt of Civil Under . Uilited States Code Title 28, § Federal 26 Geo. L. (1938) ; Const. Art. Ib, lOb; A Proposed Is It COllstil11tioltlll?, 7 U. 68701 et seq; Rules of COlll!. City L. Rey. 3, (1938). Justice Story answereu ; 36 Calif. S.B.]. 1001.\ (961). Frankel, Judlcilll the following question in the negative, "Could Con Conduct and Removal 0/ Judges for Calise, 36 So. CaL gress create or limit any other tenure of the judiciol L. Rev. 72 (1963). Frankel, Removal of Juages: Cali office?" lHarlin v. Hunter's Lessee, 1 Wheat. 304, 328 fornia Tackle .. lin Old Problem, 49 Amer. Bar Assoc_ (U.S_ 1816). J., .66; New York Times, Clllifornia EII.'es Ulljil Sharte!, Federal Judges-Appointmellt, Supervi- Ollt, Jan. 2, 19M, 182 J OliRNAL OF 'I'll E 1\;\1 ERICAN JlIIlICATUIU: SO(;n:'l'Y Vol. '18, No. V Uncler lile cOlllpreilellsive California plan argument that the operations o( ~he (?~ rn a penn;ll1ellt Lribllnal, whose work is con Illissioll have haa a lIIarked c:fIcct III r<[l ~ lllg fidenti:d by law, may check on allegations, the already high level o( our, Cali[~)r~ -lia judiciary, and 1 feel tha,t as_the C?rn rTllSSlOn request medical reports, conduct investiga continues to operate tIllS elket will lJc mul tions, hold hearings, and make filldings on tiplied. 'l.he questions o[ III iscond IIct, in Lem perancc, Misbehavior of judges is so rare that we failure to perform dllties and permanent have largely ncglcClcd to pruv iclc the I. a disability all as P;lrt of all orderly, encnive, chinery to deal with those cases which do judicial procedllre to determine judicial occur. New York's Court on the .Judiciary 'fi [ness. ] 11 a cOlltested case a recolllmenda met AugLlst 1:>, 19G2 to consider charges tiOll goes to tile State SlIpreme Court for ag'ainst a Brooklyn trial court jlldge: and review and decision.~9 The Commission, again May 2!:i, 1!)()3 for charges against a consisting or five judges appointed lly tile New York Court o[ Claims judge. In the Slipreme Court, two lawyers appointed by first instance the judge was found to have the State Bar, and two citizens appointed abused his office througll unethical and by lhe Governor, was guided as chairman improper conduct, including obstructing in its forll1ative years by A. F. Bray, a and interfering witl! a court inquiry (which distinguished California appellate judge. led to the suspension [rom practice of the Members receive no compensation; ex judge's brother, his former law partner). penses are minimal. Several terminations In the other case the judge refused to co in judicial service have come about as a operate in an investigation of corruption resul t of Commission action. in the State Liquor Authority and would not sign a waiver of immunity, which he Beller Standard oj Ethics with Calijornia Commission had a rio-lito to do as a citizen, but which the court decided meant he could not re- The evidence is unmistakable that the tain his judicial office_ Each time, after a very existence of the Commission proce fair hearing, removal was ordered about dure has led to better standards of ethics six months after the Court convened.30 The and performance among the California citizens of New York were thus assured of judges. Governor Edmund G. Brown, when the inteoTity of their judiciary. This could asked early in 1964 to eval ua te the Com only r'es~lt in the few states with ~uita~le mission's operations, had this to say, machinery for dealing with questlOns tn- I am a firm believer in a strong and inde volving possible judicial misconduct. . pendent judiciary, but I am an equally firm Thus, we have convincing- precedents 10 believer in the fact that a man should not California and New York of a sensible solu continue to hold judicial office when by his conduct or physical condition he has dem tion for unfitness in American courts, a onstrated his unfitness to do so. solution that does not encroach on the judicial prerogative. Under the aegis of its The law has been in effect for slightly over three years now, and I am c.onvinced own branch, the judiciary can enlarge its that it is a tremendous success. It IS beyond capability while increasing in stature. 29. Stevens v. The Commission on Judicial Qualifi Cannon, The New York Court on the Judiciary 1948 cations 61 AC 572 (1964). An order for removal can to 1963, 28 Albany L. Rev. 1 (1963); N.Y. Const" Art. only be macle by the Supr~me Court. U.ncon~ested VI, § 22. Iowa and Illinois ~a."e mad.e I'e.cent ~han;:;es matters are concluded by retIrement or resIgnatIOn. in their constitutions permitting actIOn In tillS field: 30. In the Malter of Friedman, 12 N. Y. 2cl (a), Flamm, Retirement, Suspension and Removal 0) (1963); in the Maller of Osterman, 13 N. Y. 2d (1963) ; Judges, 50 Ill. Bar 1. 695 (1962).