Remedy for Unfitness

Illness, or age, or simple inertia may leave him unqualified for his job, but the judge who deals daily with the lives, liberty and property of people forced to come before him may have been appointed for life. If so, he can be fired only for gross misconduct. If he has been elected, it usually takes some sort of major scandal to unseat him. Is there no other way by which the honest but unfit judge can be removed from the bench when necessary?

The federal judiciary has no answer short of impeachment--a tactic successfully used only four times since 1789.

Yet senile, lifetime judges have plagued even the Supreme Court. In the 1920s the failing Justice Joseph McKenna once wrote an opinion stating the exact opposite of what all nine Justices, including himself, had voted to say. As for state courts, there have been many efforts to let bar groups monitor unfit judges and recommend removal. But what lawyer wants to bring charges against the very judge who may hear his next case?

Quiet Persuasion. Now California is trying a widely admired device that may solve the problem. The idea began taking shape in the early 1950s when a murder trial was interrupted for four days because the judge vanished on an alcoholic binge. Indignantly, California's now retired Chief Justice Phil S. Gibson spurred a bar-bench study that turned up a surprising number of shocking statistics. Of five judges in one county, four had been absent for as long as a year because of ill health. Despite mounting case loads, other judges thought nothing of taking three-month vacations and playing golf during court hours. Others needed psychiatric care; many were just plain aged.

Chief Justice Gibson pressed for a state constitutional amendment that would give the California Supreme Court full power to remove unfit judges at every level, including its own. The state legislature and California voters overwhelmingly approved such an amendment in 1960. The bench-dominated body that has been set up to do the high court's investigating work is a nine-member Commission on Judicial Qualifications--five judges, two lawyers and two laymen. The commission operates out of San Francisco under Executive Secretary Jack E. Frankel, an able, tactful lawyer of 40.

Gripes about judges may come to Frankel from any private citizen, though meaningful complaints generally come from other judges, lawyers and grand juries. To safeguard the traditional independence of the judiciary, Frankel focuses only on alleged disability and misconduct--for example, senility, public alcoholism or persistent discourtesy. The commission has the power to subpoena medical records, order medical examinations. Once the commission is convinced that a complaint has merit, Secretary Frankel simply sends the judge a registered letter outlining the charges and adds a polite request: "Please comment."

Quiet Resignation. Some judges immediately blast back that personal enemies are out to "persecute" them. But most recognize that resignation is preferable to the alternative: a commission hearing and public review by the State Supreme Court. So far, the commission has received 344 formal complaints, found 118 worth investigating, and produced 26 actual resignations. All of the departed judges quit with no publicity whatever. Only one judge under investigation (for berating prosecutors) has ever availed himself of Supreme Court review. He won his case and stayed on the bench.

California is also fostering judicial fitness by new benefits that encourage judges to retire at 70. If he quits after 20 years on the job, a California judge goes on receiving 75% of his pay for life. If he fails to retire at 70, the pension drops to 50%. In 1959 California had about 80 judges aged 70 or over. Now it has only six.

So successful is California's system that similar legislation is pending in Colorado, Florida, Kansas, New Mexico, Ohio, Oklahoma and Texas. The American Bar Association is pondering endorsement of the idea that California-style discipline should extend to federal courts as well. Congress might very well balk and there might be constitutional problems,* but aid in the maintenance of U.S. judicial fitness deserves serious consideration.

* Such as the fact that Article 3 says flatly that federal judges "shall hold their offices during good behavior."

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