Courts under date of February 26 addressed to me, Judge Marion T. Bennett, stating:

I am writing to advise you that the Chief Justice and the Executive Committee of the Judicial Conference approve of your appearing and testifying in opposition to the enactment of H.R. 11738. They unanimously support the position of the Committee on Court Administration in opposing enactment of the Bill.

We appreciate the opportunity extended by the committee to present our views this morning, since this legislation affects only Federal judges.

Judge Thornberry and Judge Harris are principally interested in this legislation as it affects senior or retired judges and judges who have member annuities. While I served as a Member of Congress, my service was prior to 1955 when this member annuity legislation (5 U.S.C. 8338(b)) went into effect, so I'm not eligible for a member annuity, but I have been awarded an annuity by the Civil Service Commission based upon 321⁄2 years Government service, including my 8 years on the Hill.

Now we all support the position of the Judicial Conference of the United States that this legislation should not be enacted, and the principal thrust of my remarks will be addressed to the position of the Judicial Conference, and the other two judges will address you simply upon their own individual situations.

However, before getting into the position of the Conference, I should like to say a thing or two about this bill which pertains to all of us.

It is the product of a recent realization by the Civil Service Commission that it has long acted without authority of law in suspending payment of civil service retirement annuities earned by Federal judges before they became judges and in paying such annuities only when active judges became senior judges. The Commission has now accepted the legal advice of the General Accounting Office, the Attorney General, and its own general counsel that it cannot do this without new statutory authority; hence these bills.

As we understand it, this last bill would in no way affect the rights of survivors of judges whose rights vest when the judge's right to an annuity vests by reason of his age and length of prior service, and accumulate from that date. However, the bill would bar payment of any annuity to the judge himself while he lives and draws the salary of his office. His annuity would be impounded or confiscated.

The first bill, H.R. 11299, would appear to confiscate not only the judge's annuity, but that of his survivor as well.

Now there are several general approaches to this legislation which can be taken by the committee. I set forth on my prepared statement, which is before you, on page 3, four of these positions. I will not take your time to reiterate them this morning.

But I would like to say something about the retroactive nature of these bills in their present form. It is my impression, Mr. Chairman, from conversations with officials of the Civil Service Commission and from conversations other judges have had with them, including Judge Thornberry, that they do not desire that this legislation be made retroactive. Now they will have to speak for themselves to you about this when they appear here on Thursday, but upon this assumption, I would trust that you would agree with them and would agree with us and that little more need be said about it.

I would only emphasize that in America, where we believe in fair play, we just do not change the rules in the middle of the game when it seems to be going against us, and we do not deprive the winner of his success when he has followed the rules and the game is over. That is a literal interpretation of what could happen if the retroactive feature of this legislation is permitted to stand.

Congress can, of course, change any law, but I suggest to you in all seriousness that this retroactive feature of this proposed legislation is fraught with latent and with grave legal and constitutional doubts. I do not think it is necessary for us to get into that this morning. Instead I think I would prefer to appeal to your conscience and your sense of fair play that a proposition of this kind should not be retroactive and applicable to those who have, in good faith, complied with all the requirements of the statute and have been awarded their annuities or eligibility for them.

No one working for the U.S. Government could ever be sure that his annuity would be available at the end of his road of public service if this principle of retroactivity goes into effect.

And if there's anything that the judges would like to avoid, it's a constitutional confrontation with the legislative department of the Government.

I have suggested in my statement on page 5, at the top, a proposed amendment which would take care of the situation as it pertains to those whose rights have already vested.

I will interject the statement that this is a poor morning for a representative of all the Federal judges to have laryngitis.

Now moving on, skipping page 5, which also pertains to the doctrine of retroactivity, but which I implore you to study carefully, I would invite your attention to two other proposed amendments at the bottom of page 6, which would also make it clear that if, in your wisdom, you decide that legislation of this kind in principle should be adopted and judges should be barred from having these annuities, that it would not apply to judges now in office.

In this connection, the committee will recall that in the 93d Congress in 1974, a new law was enacted whereby workers in the private sector who move from one job to another will not lose their accumulated annuity rights (Public Law 93-406, 88 Stat. 829). It would be very strange indeed if people who have long worked for the Government should be discriminated against by being accorded less protection. Your committee has been vigilant in seeing to it that the Government worker has comparability of treatment with privately employed workers. This being so, there is no apparent viable reason to submit some such workers to a different standard because they heed the call to work in a different and constitutionally separate department of the Government under a different retirement system.

Now the suggestion has been made by some that the committee might adopt the idea that the bill should be amended so that it would not apply to judges who become senior judges, but would cut off everybody else, no matter whether their annuities had vested or not.

I don't think very much of that idea. It ignores the fact that a handful of judges, only about four, by reason of early and long Government service, have already earned their annuities, payment of which is man

dated by law and which is being received. There's never been any legal basis for payment of a civil service annuity to a senior judge if it could not be paid to an active judge and the Civil Service Commission now agrees with this decision, having been told so by the Attorney General and the General Accounting Office, and its own General Counsel.

Now, let me turn to the main thrust of my remarks, gentlemen, which is the position, the basic position of the Judicial Conference that this is undesirable legislation and should be rejected in toto. I have five reasons to support this position.

First, the bill would discourage individuals experienced in Government affairs from going into the judiciary by requiring a forfeiture of their earned annuities if they do so. Whatever money this will appear to save, and there is really no way to project it, will be more than offset by the disadvantage to the Nation in depriving it of judges who have accumulated wisdom and experience and expertise in the complexities of Government. Some of these judges like those before you have gained that experience as Members of Congress. Others have gained it as district attorneys or elsewhere in the Government.

In my own case, as I said a while ago, I have 3212 years of such service. I would never have taken a judgeship had I thought that this commitment to public service on my part would be vitiated after the service was rendered by repeal of the law which was an important inducement for my service. Our Nation has an investment, a resource in individuals with such service, and it should not lightly be discounted. Of course, there are many lawyers who would like to be judges. But, is it wise to restrict such appointments to the independently wealthy or to those with private pension plans and to deny them to experienced Government lawyers by levying a financial penalty upon them if they accept appointment? We think this is discriminatory.

Second, the bill is unfairly discriminatory and punitive in nature in that it pertains only to civil service annuities of judges. There are thousands of people working full time for the Government who are permitted to draw social security that they have earned or military retired pay that they have earned. Why single out civil service annuities of judges for different treatment?

Perhaps no one should be permitted an annuity if he also works. But, such a reform, if that is what you could call it, should not be accomplished piecemeal. Mr. Chairman, such dual payments are explicitly permitted by statute. Judges who have contributed to the civil service retirement fund no longer do it when they become judges because they are no longer subject to the Civil Service Retirement Law, having moved over to a different department of the Government. Whatever rights they have earned for their contributions and prior service are spelled out in the law. They ask only that the Government keep its promises, without discrimination.

A civil service annuity is like an insurance endowment policy, Mr. Chairman. It is bought, it is paid for, and when it matures, payment is due. It makes no difference what other activities the insured may engage in. He has a contract. He has bought the rights under that contract by sweat and tears, if not blood, and certainly with many, many dollars thousands of dollars, tens of thousands of dollars in our cases

here-subtracted from his income and taxed and turned over to the retirement fund.

The inducement of such an annuity is a major factor for a career of Government service. Now we all know that the salaries of top Government positions are inadequate to the responsibilities. They always have been, and probably always will be. But the retirement system is generous and may really be considered as a part of the compensation. It keeps people in the service because title 5 promises that if they remain and make their contributions of time and money they will be paid these annuities.

Any breach of that solemn commitment of the Government, written into the law-and it's been there for many, many years-a breach after the fact, and after the consideration has passed, would, I submit, be unworthy of a great nation. We do not believe that you will countenance it and we urge you not to do so. The long-run effects of such a policy could be disastrous.

Fourth, this bill if enacted will not only dissuade experienced government lawyers from becoming judges, it will encourage resignations which already are at the highest rate in history because of inadequate compensation, now far behind what it was in 1969 in purchasing power. My own court has lost three trial judges on this account alone. There are some judges who, if this bill becomes law, will have to consider carefully whether or not they want to remain on the bench. Now by resigning and going into the private sector, they can draw their annuities. Then other judges will have to be appointed to the vacancies so where will any public money have been saved?

If Government servants pass up judgeships because such appointments will cause them to lose their earned annuities, the Government will save nothing. It is an illusion that this bill will save money. All that will have been accomplished is the loss of judges experienced in Government affairs either by resignation or refusal to serve. I will add that the judge most certainly will not be able to keep all of his earned annuity, even if paid. There is the income tax, State and Federal, which will get most of it.

Now, fifth, and in conclusion, the relations between Congress and the judiciary have historically been good. The courts have never been singled out for punitive treatment. We do not wish to see any standing statute which will prove to be a continuing irritant between us.

The Constitution does not require a financial forfeiture of any kind as the price of becoming or remaining a judge. We think now that you have heard our side of this question, Congress will keep its word and pay the annuities that the law it wrote said would be paid to those who, in good faith and by their labors and contributions, earned them. I thank you, and, Mr. Chairman, I will submit myself to any technical or other questions that you may consider, or the members, to be appropriate after my colleagues have testified.

Mr. WHITE. Judge Thornberry?

STATEMENT OF HON. HOMER THORNBERRY, U.S. CIRCUIT JUDGE, AUSTIN, TEX.

Judge THORNBERRY. Thank you, Mr. Chairman, and members of the committee.

My name is Homer Thornberry. I am presently serving as judge of the U.S. Court of Appeals of the Fifth Circuit, and I live in Austin,

Tex.

I appreciate the privilege of appearing before this committee, one on which I had the honor to serve. I did not contemplate, at the time, that I would be coming here to testify about a bill that would have such a drastic effect on me and what I had considered to be my entitlement to retirement benefits, to which I have contributed during my 15 years as a Member of Congress under a law passed by the Congress, and under assurances from those who are in charge of the administration of the Civil Service annuity program that I would be entitled to receive my retirement whenever I took senior status or retired.

Before I go into my personal-and this is a personal testimony, I— Judge Bennett has talked about the position of the Judicial Conference. He referred to the legal aspects of it. I am here to appeal to you to consider my personal experience and my personal feelings about this legislation.

The letter from you, Mr. Chairman, to Mr. Kirks stated that you would consider this morning H.R. 11299, also known as H.R. 11738. I had thought, until I saw this letter, that the committee was now considering only H.R, 11738.

Now, are you considering both of them? Because if you are, I need to refer to H.R. 11299 because it certainly has a cruel and devastating effect upon the right of my surviving wife to benefits.

Mr. WHITE. We are considering only one bill, Judge Thornberry, today, H.R. 11738.

Judge THORNBERRY. All right; then I do not need to refer to H.R. 11299, because, as I understand the provisions of H.R. 11299, it has a provision prohibiting the accrual of benefits and it would have a disastrous and cruel effect upon the right of my wife, Mrs. Thornberry, to benefits. As I understand the committee, you are no longer considering that bill.

As I read H.R. 11738, it will bar, either on October 1 of this year or the date of enactment, an annuity during any period for which a Federal judge is entitled to receive compensation for services as a judge, either retired or active.

I am unable to find in H.R. 11738 any provision which contains a prohibition against accrual of survivor's benefits. Of course, H.R. 11738, if it is enacted in its present form would prevent me from receiving those benefits, which I thought I was entitled to receive since the day I began making contributions to the Congressional Retirement Fund.

Mr. Chairman, when I first knew there was a possibility that I would become or could possibly be appointed a district judge, this very problem occurred to me. I made a number of inquiries, one of Mr. Z. W. Johnson, who was Sergeant-at-Arms of the House, whose office was in charge of handling the contributions by Members of the House to the retirement fund. I wanted to see whether or not it would be to my advantage to withdraw the money I had contributed to the fund and either purchase insurance or annuity at that time.

Mr. Johnson, after consultation with the Civil Service Commission, assured me that it would be to my interest to leave the funds intact, that whenever I retired as judge or took senior status, I would be en