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1. Justice Douglas suffered a stroke on December 31, 1974. He returned to the Court in October, 1975, but found he was unable to continue. On November 12, 1975, he retired under the provisions of 28 U.S.C. § 371(b) (1970). N.Y. Times, Nov. 13, 1975. at 60, col. 2. For the wording of that section and the distinction between retirement and resignation, see note 7 infra. Accounts of his illness were given in NEWSWEEK, July 7, 1975, at 46; TIME, Feb. 17, 1975, at 48; id. Apr. 7, 1975, at 58; id. July 7, 1975, at 44; U.S. NEws 9WORLD REP., May 26, 1975, at 69. For a contemporaneous discussion of possible removal methods, see Reston, Mr. Justice Douglas, N.Y. Times, Sept. 17, 1975, at 45, col. 5. 2. In this Note "disability" or "incapacity" refers to a physical or mental condition which impairs a judge's ability to serve on the court. A widely-publicized controversy over judicial fitness concerned Judge Stephen S. Chandler, Chief Judge of the Western District of Oklahoma. An order by the Judicial Council for the Tenth Circuit that Chandler take part in no future proceedings prompted many discussions of judicial tenure in the legal literature. E.g., Note, Potential Limitations Upon the Tenure of Federal Trial Judges-Some Implications of the Chandler Case, 20 Sw. L.J. 667 (1966); Note, The Chandler Incident and Problems of Judicial Review, 19 STAN. L. REv. 448 (1967); Comment, Removal of Federal Judges-New Alternatives to an Old Problem: Chandler v. Judicial Council of the Tenth Circuit, 13 U.C.L.A. L. REv. 1385 (1966); Comment, Removal of Federal Judges-Alternatives to Impeachment, 20 VAND. L. REv. 723 (1967); 21 Rur. L. REv. 153 (1966). In 1970 there were suggestions that the House of Representatives should investigate Justice Douglas's conduct to determine if it would be appropriate to initiate impeachment proceedings. 116 CONG. REc. 11912-27 (1970): 'That discussion led to a similar burst of discussion of judicial tenure. E.g., Berger, Impeachment of Judges and "Good Behavior" Tenure, 79 YALE L.J. 1475 (1970); Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 FoPDHAM L. REV. 1 (1970); Thompson & Pollitt, Impeachment of Federal Judges: An Historical Overview, 49 N.C. L. REv. 87 (1970). The problem of unfit judges has a long history. A list of all "federal judges whose official conduct had been the subject of congressional inquiry" before 1962 is printed in J. BoPKIN, THE CoRuPr JuDGE 219-58 (1962). Two periodicals have devoted entire issues to the problem: Judicial Ethics, 35 LAW & CONTEMP. PRoB. 1 (1970); Judicial Misconduct, 48 J. Am. Jun. Soc'Y 163 (1965). On a number of occasions congressional committees have held hearings related to judicial fitness. Hearings on Judicial Disqualification before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. (1973); Hearings on Reconfirmation of Federal Judges before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 92d Cong., 2d Ses. (1973); Hearings on the Independence of Federal Judges before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 91st Cong., 2d Sess. (1970) (including comprehensive bibliography on the subject of federal judges at 942-49); Hearings on Retirement of Justices and Judges before Subcomm. No. 5 of the House Comm. on the Judiciary, 91st Cong., 2d Sess., Ser. 16 (1970); Hearings on the Judicial Reform Act before the Subcomm. on Improiements in Judicial Machinery of the Senate Comm. on the Judiciary, 91st Cong., 1st K2d Sess. (1969, 1970); Hearings on Nonjudicial Activities of Supreme Court Justices and Other Federal Judges before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 91st Cong., 1st Sess. (1969).

Judicial Disability and the Good Behavior Clause