I am sure, Senator DeConcini, that you know that the workload of our Federal courts today is just beyond proportion with the various large suits such as derivative suits, class action suits, big antitrust cases, and cases that drag on for years-literally years.

Our judges are swamped. To take active judges away from their calendars and require them to sit for days or, as I say, even weeks hearing the case on the conduct of a judge is something that I do not think is in the best interest of the administration of justice.

For that reason, I would suggest that judges who have taken senior status I might observe that a Federal judge with 10 years of service at age 65 may take senior status, and a lot of them do. A Federal judge with 15 years at age 75 may take senior status. A lot of them do. Many of them are sitting all over the United States trying cases today to assist the courts in the tremendous workload that they have.

Senator DECONCINI. That is a very good suggestion. Thank you. Mr. SUTRO. That, Mr. Senator, concludes my formal statement. I would be glad to answer any questions that you would care to propound to me. I hopefully will be able to answer them.

Senator DECONCINI. I wish you would do me a favor, Mr. Sutro, when you do talk to Judge Chambers again, express to him that the reason we could not have him here today is because of the shortness of time. At the time we had these hearings planned, we thought we would be under a restrictive Senate rule and we would be limited to 2 hours.

I would appreciate your saying that to him. I have written the judge. I have the greatest respect for him even though I know his total opposition to this bill.

Mr. SUTRO. I have great respect for him too. I might say that, as you just said, he is totally opposed. I do not really know why, because with the procedures contemplated by the draft bill I thought it pretty well met his objection to S. 1110 and S. 1423. In other words, I think that Judge Chambers feels that circuits can take care of their own problems.

Senator DECONCINI. We are going to send him a copy of it. Perhaps you will have an opportunity to discuss it with him.

Mr. SUTRO. I mentioned it to him.

Senator DECONCINI. You told me what he said. I have known the Judge all my life, so I can imagine his position.

Mr. SUTRO. I have the greatest respect for him. I might say in that regard-and I have said it to him-that he did an admirable job when he was chief judge of the ninth circuit in handling the kinds of situations that this legislation is designed for. He did an admirable job. I know of specfic instances.

Unfortunately, as I said to him, just because he had those capabilities does not mean that every chief justice of every circuit had them. Senator DECONCINI. Thank you very much, Mr. Sutro.

Mr. SUTRO. I appreciate the opportunity to be here.

Senator DECONCINI. We thank you very much for taking the time and waiting.

Mr. McWilliams?

STATEMENT OF J. MICHAEL MCWILLIAMS, MEMBER, STANDING COMMITTEE ON JUDICIAL SELECTION, TENURE, AND COMPENSATION OF THE AMERICAN BAR ASSOCIATION

Mr. McWILLIAMS. Mr. Chairman, thank you for the opportunity once again to appear before you in support of legislation which would provide a much needed reform in our judicial system.

We last testified on this subject in connection with S. 1110, 94th Congress, as introduced by Senator Nunn on March 7, 1975. Our statements are contained in the printed record of the hearings at pages 46 through 62.

Most of the suggestions made by us at that time were addressed in the revised S. 1110 contained in a committee print of S. 1110 prepared by the subcommittee in anticipation of a possible favorable report on the legislation by the full committee. S. 1423 also eliminates some of the concerns which we originally held with respect to S. 1110 and, therefore, no purpose would be served in discussing those concerns today.

I would like briefly to touch upon several specific problems which we believe remain under S. 1423.

In addition to the reasons stated by Mr. Sutro for opposing inclusion of the Supreme Court in S. 1110, there was also a problem with that Court being the court of last resort in cases involving a member of the Supreme Court. That objection has been addressed in S. 1423 by the creation of the Temporary Court of Disciplinary Review to handle the appeal of a Supreme Court Justice from a finding of the Court on judicial discipline.

However, this technique further compounds the inappropriateness of judges of inferior courts passing judgment on the action of a justice.

Under the bill, a complaint concerning the conduct of a Justice of the United States or a judge of the Court of Claims, the Court of Customs and Patent Appeals or the Customs Court, must be filed with the Executive Director of the Council on Judicial Tenure.

If after preliminary inquiry such a complaint is found to be frivolous, it must be dismissed on written order of the Council on Judicial Tenure. It is not clear who is to make the preliminary inquiry, nor is it clear whether the Council must meet and by a vote of some dimension determine frivolousness before entering the written order dismissing the complaint.

A complaint concerning the conduct of a circuit or district judge may be filed either with the Executive Director or with the Judicial Council of the judicial circuit in which the judge performs his duties. If it is filed initially with the Executive Director he must transmit the complaint to the Judcial Council of the appropriate circuit, and if it is filed initially with the Judicial Council, the Council must send a copy to the Executive Director.

In either event, and within 90 days, the Judicial Council must inquire into the allegations and make a written report to the Council on Judicial Tenure. This is apparently true even if the complaint is frivolous on its face.

There does not appear to be a mechanism in the bill for dismissing an abviously frivolous complaint filed against a circuit or district judge as there is with a complaint filed against a Justice or a judge of the specialized courts. It seems to me that such a procedure would be beneficial since it would avoid the necessity of the circuit judicial council meeting, inquiring into the allegations, and making a written report to the Council on Judicial Tenure, which, in turn, must also make its determination.

A complaint which is not dismissed as frivolous is referred to the Judicial Council of the appropriate circuit or to the chief judge of the appropriate court, as the case may be, for investigation of the allegations and a written report to the Council on Judicial Tenure.

The Council on Judicial Tenure is required to make further investigation and determine whether the grounds specified for removal, censure, or involuntary retirement exist. The bill provides that if, after such investigation, the complaint is found to be frivolous, the Council "may" dismiss the complaint.

There appears to be no reason why such dismissal should be discretionary. If the complaint is frivolous, its dismissal ought to be mandatory as is the case with a complaint found to be frivolous after preliminary inquiry under proposed section No. 378(b).

If the Council on Judicial Tenure orders an investigation after receipt of the report from the circuit Judicial Council or chief judge, it must notify the Justice or judge in question. This is the first time that the subject of a complaint has any knowledge of its existence; apparently he would never have such knowledge unless a complaint reached this stage.

Perhaps it would be good for a judge or a Justice to be made aware of the dismissal of complaints, if for no other reason than to give him some idea of public reaction to the judiciary.

After the Council on Judicial Tenure determines that the matter should go forward, it must file its report with the Court on Judicial Discipline established pursuant to proposed section 379.

This court is made up of the Judicial Conference of the United States, or, with the concurrence of a majority of the members of the Conference, a panel of nine of its member judges, appointed by the presiding officer elected by the Conference.

It may be that a panel of nine would be preferable in any case, since a court made up of the entire Conference would be somewhat unwieldly and since there is no criteria for determining which case. ought to be presided over by one or the other.

On page 9 of the bill beginning on line 9, subsection (d) of proposed section 379 provides that the Court on Judicial Discipline has the power by majority vote "of the court or panel" to order censure, removal, involuntary retirement, or dismissal. Since the Court may consist of a panel, I suggest the deletion of the words "of the court or panel thereof" on lines 10 and 11.

Under proposed section 381 on page 12 of the bill, testimony and evidence remain confidential until the proceedings reach the Court on Judicial Discipline. In S. 1110 this confidentiality was preserved until an appeal to the Supreme Court was filed. It is not clear whether

any significant reason exists for disclosing matters relating to the proceedings before such an appeal is filed. Earlier disclosure could have an adverse, unfair impact on a judge whose case is dismissed by the Court on Judicial Discipline.

It is our view that the standard of conduct, deviation from which provides grounds for removal, or censure, is better legislatively defined by the incorporation of the constitutional "good behavior" standard as provided in S. 1110, than by legislatively attempting to interpret the constitutional standard as is proposed on page 13 of the bill. The Supreme Court is the final interpreter of the Constitution and legislative attempts to do so often create more questions than answers.

For example, on page 13 of the bill conduct inconsistent with good behavior

Includes, but is not limited to, willful misconduct in office, willful and persistent failure to perform duties of the office, habitual intemperance, and other conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

One question with respect to this language is whether the last phrase "other conduct prejudicial to the administration of justice that brings the judicial office into disrepute," applies to the conduct earlier enumerated in the definition; that is to say, if a judge is guilty of willful misconduct in office, must that misconduct be such as to prejudice the administration of justice to the extent that it brings the judicial office into disrepute?

The current standard by which a President may appoint an additional judge to serve in a court requires him to find that a disabled judge "is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability." Under S. 1423 the standard for compelling involuntary retirement is to be whether the judge is "unable to discharge efficiently one or more of the critical duties of his office by reason of a permanent mental or physical disability."

Not only is the standard changed, but the President need make no finding and does not make an appointment of an additional judge. Rather, the disabled judge is replaced.

However, on page 14 of the bill, section 372 (b) would provide that: Habitual intemperance that seriously interferes with the performance of any one of the critical duties of a Justice or judge may constitute a permanent disability for the purposes of this subsection provided the Justice or judge has served for more than seven years in judicial office.

This language raises some substantial questions. For example, if habitual intemperance is defined as a violation of the constitutional good behavior standard, as it is in the definition on page 13 of the bill, should habitual intemperance not in and of itself be sufficient reason for involuntary retirement?

If habitual intemperance must be such that it "seriously interferes with the performance of any one of the critical duties of the Justice or judge" before it becomes grounds for involuntary retirement, then surely habitual intemperance which forms the basis for censure or removal must also be of a similar seriousness.

Furthermore, it is not clear what purpose is served by applying the habitual intemperance standard, for purposes of involuntary retire

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ment, only to Justices or judges who have served more than 7 years in office. Presumably, one need not be habitually intemperate for more than seven years before that intemperance is likely seriously to interfere with the performance of duties.

A preferable alternative to this approach could be either to simply define habitual intemperance as a permanent disability or continue the single standard for involuntary retirement based upon the inability to discharge efficiently one or more critical duties of the office.

I hope these comments, on what we consider to be some of the problems with S. 1423, may be of some help, and I thank you for the opportunity to present them.

Senator DECONCINI. Thank you, Mr. McWilliams. I appreciate the technical suggestions that you have given to us. Many of them are very, very good.

I thank you sincerely. My staff may be in touch with you again on some of these technical suggestions. They make very good sense.

I thank both you and Mr. Sutro for taking your time and giving us your views and opinions. They are very, very valuable to us. Mr. SUTRO. Thank you for the opportunity of appearing. Mr. McWILLIAMS. Thank you, sir.

Senator DECONCINI. The next witness is Prof. John MacKenzie, faculty member of the New York University School of Law.

We welcome you here, Mr. MacKenzie. Please proceed.

If you have a formal statement, which I believe you do, we will enter it into the record in total.

[Prepared statement of John MacKenzie follows:]

PREPARED STATEMENT OF JOHN P. MACKENZIE

It is no mere pleasantry to say that I am honored to be a witness before this subcommittee. After many years of watching this body from the perspective of newspaper reporter I have an unusual but agreeable sensation as I think about giving counsel-not the unsolicited advice of a journalist but some thoughts based on observation and some study, fortified perhaps by whatever insights come from being, at least temporarily, a teacher of law.

I am not a lawyer but I have had a wonderful time with the law. For the current academic year I am Walter E. Meyer Visiting Research Professor of Law at the New York University Law School. The professorship is used at NYU to bring to the Law School the benefits that flow from contact with non-law professions and occupations, in this case journalism.

For more than 20 years, from 1956 until last January, I was a staff writer for The Washington Post. For the last 12 of those years my assignment was the Supreme Court and legal news. That assignment made me a frequent observer and reporter on the work of this Subcommittee and its parent Committee, including some memorable battles over legislations, nominations for high judicial and Justice Department posts, and the ethical matters that concern us here today. My legal training, principally a year as a special student (1964-65) at Harvard Law School at the newspaper's expense, was considerably supplemented by exposure to the debates of this body as well as the courts.

Congress was a major focal point of turmoil over judicial ethics that once loomed so large in Washington but, like so much else, became dwarfed by Watergate. I refer to the fight over Abe Fortas as nominee for Chief Justice in 1968, to the confirmation fights over Clement F. Haynesworth and G. Harrold Carswell that followed the resignation of Mr. Fortas from the Supreme Court in 1969 and, to the attempt by then Representative Gerald Ford to have Justice William O. Douglas impeached. Also, I refer to the efforts by former Senator Joseph D. Tydings as chairman of this subcommittee to upgrade the ethical standards and the performance of the entire federal judiciary. And of course this Committee