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REPORT

with systems modeled on those in place in the states or with a system to be specified by Congress.

The Commission concluded that the broader proposals, which would replace not only the current impeachment process but the 1980 Act, were unnecessary and unwise. The Commission's analysis of experience under the 1980 Act and other formal mechanisms of discipline within the judicial branch reveals that existing arrangements are working reasonably well. Moreover, improvements are both possible and desirable, and the Commission offers numerous recommendations to that end.

Those recommendations take account, and seek to take advantage, of perhaps the most important benefit of the 1980 Act, namely the impetus it has given to informal resolutions of problems of judicial misconduct and disability. No alternative system of discipline of which the Commission is aware has similar potential for effective informal resolutions.

In addition, absent a convincing demonstration of the inadequacy of the 1980 Act, the Commission would not recommend, whether by constitutional amendment or by statute, an alternative whose capacity to walk the tightrope between independence and accountability is a matter of speculation. This is particularly true with respect to alternatives that were crafted for state systems that may balance judicial independence and judicial accountability differently than did the framers and ratifiers of our federal constitution.

Proposed constitutional amendments that would change only the process of removing federal judges also vary in scope, with some focusing on convicted judges and others proposing a new system for all judges. As to both kinds of proposals, the Commission was concerned about the effects of altering one important equilibrating mechanism in the complex machinery of American government. Specifically, it does not believe that the House and Senate should be relieved of the power and responsibility to make an independent political judgment about the fitness of a federal judge to remain in office. This is the problem with proposals for automatic removal of judges convicted of certain crimes and with broader proposals that would shift the locus of judgment to the judiciary. A special court to consider removal may or may not be able to walk the tightrope between judicial independence and accountability as well as Congress has walked it under existing arrangements. In any event, such

BACKGROUND

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a system holds a serious risk of lack of public confidence, the costs of which would adversely affect the judiciary as a whole.

Risks such as these might be worth incurring if current arrangements were wholly inadequate and incapable of improvement. Having carefully considered the relevant mechanisms within the three branches, the Commission concludes that substantial improvements are possible, and its recommendations are crafted to bring them about. The Commission understands the public's outrage when convicted federal judges continue to draw their salaries in prison. It also understands the frustration of Members of Congress when they are put to the burdens of impeaching and removing those judges from office. Neither outrage nor frustration, however, should cause us to forget that Congress has the power to lighten some of the burdens of the impeachment process, or that others of those burdens are inherent and desirable in a system of checks and balances. The recommendations that follow reflect the view that the risks and uncertainties of alternative removal mechanisms should be avoided until every effort has been made to reduce the burdens of the existing process to the core that is required to maintain that delicate balance between judicial independence and judicial accountability.

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CHAPTER II

CONSTITUTIONAL ISSUES

The Commission dealt with a variety of questions of constitutional law and policy. First, several features of the current system of judicial discipline have been criticized on constitutional grounds. For example, some have questioned the constitutionality of criminal prosecution, and especially incarceration, of sitting federal judges. The Commission thus confronted the question whether reforms might be necessary because of possible constitutional infirmities in current practice.

Second, the Commission considered proposals for statutory changes in the judicial discipline system that raised constitutional questions. In particular, the question whether Congress may and should provide for removal other than through impeachment is a recurring one. In order to assess any such statute, the Commission needed to decide whether it would violate the Constitution as it currently stands and thus require a constitutional amendment.

Finally, the Commission considered a number of proposed changes in the judicial discipline system that clearly would require constitutional amendments and that are framed as such. The Commission assessed possible constitutional changes as a matter of policy.

CURRENT CONSTITUTIONAL STRUCTURE

Article III of the Constitution vests the "judicial Power of the United States" in "one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Immediately after making that grant, it provides for the tenure and compensation of judges: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

See Chapter Notes.

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REPORT

The only method of removing judges specified by the Constitution appears in Article II, which provides that "all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." Under Article I, the sole power of impeachment rests with the House of Representatives, while the Senate has the sole power to try all impeachments. Conviction in the Senate requires "Concurrence of two thirds of the Members present."

Taken together, these provisions create what is commonly referred to as judicial independence. Independence obtains at several levels. As a result of the separation of powers, the federal courts alone possess the judicial power. Their judgments therefore are not formally subject to revision by Congress or the Executive. Guaranteed compensation makes the judges (like the President personally) to some extent immune from coercion based on Congress's appropriation power.1 And tenure during good behavior means that the judges need never face the voters.

The impeachment mechanism is the only means expressly set forth in the Constitution by which a judge may be removed from judicial office and thus debarred from exercising judicial power. Removal by joint action of the House and Senate is therefore the only explicit qualification of judicial independence and the only explicit means by which a federal judge may be called to account for his or her actions while in office.

The framers and ratifiers of the Constitution believed that substantial independence and limited accountability were important to the role of the federal courts in the new system of government. They shared the long-standing English distrust of judges who were dependent on the King, and recent experience had demonstrated the dangerous tendencies of popular legislatures. Speaking of good behavior tenure, Alexander Hamilton said in The Federalist: "In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.'

"2

Although no consensus has ever developed on the exact scope of the impeachment power, its reach is illuminated by two hundred years

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