If you have issues viewing or accessing this file contact us at NCJRS.gov. Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992 146891 U.S. Department of Justice Natlonallnsmute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the autllors and do not necessarily represent the oHicia1 position or policies of the Natlona11nstitute of Justice, Permission to reproduce this • r t 1 material has been gm.nletl.l:'U.Dl.J.C b.v • DomaJ.n, Federal JudJ.cJ.al Center to the National Criminal J~stlce Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permission of the~owner. :ral Judicial History Office !ral Judicial Center Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992 By Emily Field Van Tassel With Beverly Hudson Wirtz and Peter Wonders Federal Judicial History Office Federal Judicial Center 1993 Prepared for the National Commission on Judicial Discipline and Removal. Thb Federal Judicial Center publication was undertaken in furtherance of the Cen­ ter's statutory mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the author and not necessarily those of the Federal Judicial Center. Table of Contents 1. Introduction I 2. Overview 5 The Growth of the Federal Judiciary 5 Changes in Judicial Tenure 7 Judicial Resignations as a Percentage of the Total Judiciary: Change Over Time 7 \'V'hy ] udges Resign 10 Age and/or health (including disability and pre-I9I9 retirement) 10 Appointment to other office/elected office 10 Dissatisfaction II Return to private practice, other employment, imdeq uate salary 12- Allegations of misbehavior (including impeachments and convictions) 17 3. Judicial Resignations Following Allegations of Misbehavior 19 Background 20 Investigations 23 Congressional Investigations 2-3 Department of Justice Investigations 27 Outside Investigations 32 Prosecutions Outside the Impeachment Process 33 Department of Justice Prosecutions 34 Local Prosecutions 35 4. Retirement and Disability 37 Retirement 37 Disability 40 5. Conclusion and Recommendations 45 Recommendations 46 Recommendation 1 46 Recommendation 2 47 Charts and Graphs Table 1: Judges Leaving the Bench for Other Employment by Decade 14 Figure 1: The Growth of the Federal Judiciary 1789-1979 49 Figure 2: Percentage ofJudges Resigning for Reasons Other Than Age or Health 50 Figure 3: Reasons for Resignation by U.S. Judges 1789-1979 51 Appendix and Indexes Appendix: Judges identified as having resigned 53 Index 1: Resignations by decade 123 Index 2: Resignations by reason 129 Index 3: Resignations by reason and decade 133 IV 1. Introduction In the 1980s and early 1990S, the Department of Justice sought and acquired indictments against five sitting U.S. judges on charges ranging from income tax evasion to bribery. The judges were Harry Claiborne CD. Nev.), Alcee Hastings (D. Fla.), Walter Nixon (D. Miss.), Robert Collins (D. La.), and Robert Aguilar (D. Cal.). Judges Harry Claiborne, Walter Nixon, Robert Collins, and Robert Aguilar were convicted, and Judge Alcee Hastings was acquitted. Congress has subsequently impeached, convicted, and removed three of these judges, including Alcee Hastings. In cwo cases, Congress has been awaiting the outcome of judicial appeals before proceeding to impeach. In the case of}udge Collins, this action could be coming soon, in view of ~he Supreme Court's refusal to hear his appeal.! None of the five judges involved chose to resign either at the time of in­ dictment or at the time of conviction. Judge Harry Claiborne drew his salary for two years while in jail, and he vowed to return to his seat on the U.S. District Court for Nevada before Congress finally removed him through the impeachment process in 1986;2 similarly, Judge Robert Collins, who has been in prison since 1991, continues to draw his annual salary of $133,600,3 Overwhelmed by these recent rapid-fire prosecutions and impeachment proceedi~gs against federal judges, actions that contemporary commentators perceive as the result of an unprecedented surge in judicial misconduct, Congress is seeking guidance on how to deal with the potential increase in investigations and removals of federal judges that these prosecutions might bring. In point of fact, however, very little is known about how these recent prosecutions fit into the overall history of the federal judiciary. There is much anecdote and tradition about the nature of the federal judiciary and the peo­ ple who have served as its judges, but what reliable information exists is scat­ tered among many different sources. It is the purpose of this study to explore some of those sources and cast light on the historical behavior of federal judges. This study gives particular attention to why federal judges have left the bench. ~'here the cause is not clear, the study indicates the reasons that judges have given for their departures. This information will help clarify whether the recent prosecutions are in fact a symptom of alarming changes in judicial behavior. I. Collins v. United States, 972 F.2d 1385, cert. denied, 61 U.S.LW. 3680 (U.S. Apr. 5, 1993) (No. 92-964); Supreme Court Order Opens the Way for Possible Impeachment ofjudge, Wash. Post, Apr. 6, 1993, at A4. 2. Gerald Stern, What Claiborne Did, N.Y. Times, Oct. 10, 1986. 3. Wash. Post, supra note I. 1 This study focuses on the 188 judges who, over the last 200 years, re­ signed from the bench for stated reasons other than age or health:i Some at­ tention is also paid to judges who resigned or retired for reasons of age or health before 1919, when "retirement from regular active service" was first of­ fered as an option to Article III judges. This study also addresses the relation­ ship between resignation, malfeasance, and threats of different kinds of pun­ ishment. We also consider the historical factors surrounding resignations of judges for employment-related reasons and the history of other aspects of ju­ dicial tenure that may be salient to the question of how to ensure the high quality and integrity of the federal judiciary, such as the effects of changes in provisions for retirement and disability. Following· the prosecutions of Judges Hastings, Claiborne, Nixon, Aguilar, and Collins, and the congressional removal of Judges Hastings, Claiborne, and Nixon, judicial observers and reformers understandably have turned their attention primarily to judges who have been impeached. Over the course of our history Congress has impeached thirteen judges.' Seven were convicted and removed from office, four were acquitted, and two re­ signed before Senate trial.6 The small size of this universe, however, makes it difficult to form any reasoned judgment about whether significant changes are occurring in the nature of the federal judiciary. A broader look at all Ar­ ticle III judges who have left the bench, and the reasons why they have done so, may yield more reliable information about judicial behavior. 4. Much of the biographical information induded in this study is distilled from data col­ lected by the Federar]udicial History Office (FJHO) on all Article III judges who could be identified as resigning from office or retiring between 1869 (when retirement became an op­ tion) and 1919 (when retiring "from regular active service" became an option). As of this writing, there is no comprehensive, accurate listing of judges who retired, "retired from the uffice," took disability retirement, or were "involuntarily" certified as disabled that would al­ low distinguishing between these categories. Thus, it is not possible at this time to assess change over time in either the numbers of judges entering these categodcs or their reasons for doing so. Therefore, treatment of retired judges, of whatever stripe, will be limited to an im­ pressionistic discussion. 5. The thirteen are John Pickering (1804), Samuel Chase (1804), James Peck (1830), West H. Humphreys (1862), Mark H. Delahay (1872), Charles H. Swayne (1905), Robert Archbald (1913), G!;:orge W. English (1925), Harold Louderback (1932), Halstead L. Ritter, (1936) Harry Claiborne (1986), Alcee Hastings (1989), and Walter Nixon (1989). Warren S. Grimes, Hun­ dred- Ton-Gun Control: Preserving Irnpeacbment as the Exclusive Removal Mechanism for Fed­ eral Judges, 38 UCLA L. Rev. 1209, I214 n.32 (1991). See also Joseph Borkin, The Corrupt Judge: An Inquiry into Bribery and Other High Crimes and Misdemeanors in the Federal Courts app. (1962); 3 Hind's Precedents of the House of Representatives ch. 89 (1907); 6 Cannon's Precedents of the House of Representatives ch. 202 (1935); 3 Deschler's Precedents of the United States House of Repre:sentatives ch. 14 (1979); and Judge Biographical Database, Federal Judicial History Office, Federal Judicial Center, Washington, D.C. [hereinafter Judge Biographical Database]. 6. The convicted and removed judges were Judges Pickering, Humphreys, Archbald, Ritter, Hastings, Claiborne, and Nixon. The four who were acquitted were Justice Samuel Chase and Judges Peck, Swayne, and Louderback. ] udges Delahay and English resigned after impeachment but before the conclusion of the process. 2 Why Judges Resign Part 2 of this study begins with a summary of the two centuries of growth of the federal Article III judiciary. from the nineteen judgeships created by the Judiciary Act of 1789 to the 829 judgeships that were authorized by Congress by the close of this study. This part offers a picture of the changing contours of the judiciary as an institution and provides a context for evaluat­ ing the changing numbers of judicial resignations. An overview of the num­ bers of judicial resignations for the last two centuries includes an analysis of these numbers and how they have changed over time.