speech on June 5, 1969, relative to Federal judicial reform, are pertinent to this discussion:

"Today, the Federal judiciary is facing a crisis of confidence, a crisis that threatens to gravely impair its strength and its effectiveness.

"To a large extent, the present crisis of confidence stems not only from the absence of effective machinery to investigate accusations of judicial unfitness but also from the judiciary's failure to keep its house in order. Aside from the totally inadequate impeachment process, no machinery now exists for a fair and expeditious evaluation of charges of judicial misconduct

An exaggerated view of judicial independence and the customary inertia of the judiciary has deterred the judiciary from meaningful attempts to codify standards of judicial conduct or to require the disclosure of extra-judicial activity and compensation."

There have been eight judges impeached in the entire history of the federal judiciary. Four were convicted; four, acquitted. In this century, only four judges have been impeached. Two were convicted; two were acquitted. Such incidents as the Fortas tragedy, and later the Illinois resignations, have helped to create doubt in the minds of the American people about the integrity of the judiciary.

Special attention has been given to the outside and extrajudicial compensated activities of judges. A Harris poll, published on July 31, 1969, states that "the American people be

lieve that it would be wrong for justices to receive outside money in addition to their salaries by a margin of 55 to 34%." Critics refer to these activities of judges with the unpleasant term “moonlighting." A proliferation of bills in Congress proposing to regulate outside compensated activities of federal judges and to require disclosure of judges' financial affairs has resulted. The June 10, 1969 resolutions of the special meeting of the Judicial Conference of the United States at Washington responded to those issues.

A Controversial Issue

We must decide first whether the conduct of judges is itself a proper subject of regulation. If so, whether control should be by statute or through the adoption of necessary rules by the judiciary itself. Further, whether regulation can be accomplished in a way which will not jeopardize the basic independence and freedom which are indispensable to judges. The area of discussion is fraught with differing views-it is indeed controversial stuff.

Present guidelines for judicial conduct are outmoded and urgently need updating and revision. The American Bar Association Code of Judicial Ethics was adopted in 1924 and is, therefore, 45 years old. The written rules of conduct have not kept pace with the growth of the nation and its courts. Litigation has of course vastly increased, as has the number of judges. Thus, the task of writ

ing a workable, satisfactory code of conduct for judges is much more complicated and difficult now than it was in 1924 when the original ABA code was adopted.

The American Bar Association proposes to modernize its Code of Judicial Ethics as a result of action taken at its annual session in Dallas last month. Bernard G. Segal, the new ABA president, has appointed Chief Justice Roger J. Traynor of the California Supreme Court to head a nine-member committee of judges and lawyers to draft a new code, which should sharpen the outlines of judicial conduct. Substantial funds have been allocated for the work of the committee and an exhaustive study will be made with the aid of a competent professional staff. A time limit of one year has been set so that the proposed Code of Judicial Ethics can be submitted to the American Bar Association general session in August, 1970.

This is an ambitious undertaking, and one which comes at the right time pursuant to great demand. It logically follows the recent adoption by the American Bar Association of a new comprehensive Code of Professional Responsibility for members of the bar. The ABA committee must solve many difficult questions of propriety in judicial conduct, conflicts in interest, recusation, and permissible limits of extra-judicial activities. Especially troublesome of solution will be the vital question of financial disclosure, public or confidential, of a judge's private

affairs. Most judges, however, will welcome a modern set of rules for judicial conduct which are clear, direct and practical.

A Code for the Federal Judiciary

The federal judiciary will also have a code of judicial ethics. It has never had such a code, though there have been several special resolutions adopted by the Judicial Conference of the United States concerning judges' conduct, the most important, and, in some ways, the most controversial being those adopted on June 10, 1969 to which I have referred. At this special session of the Judicial Conference the Committe on Court Administration of the Judicial Conference was authorized to formulate written standards of judicial conduct for federal judges. The work of the Committee will parallel the American Bar Association study, and it is hoped that the Federal judiciary may derive the benefit of the research and study of the ABA Committee without needless duplication of effort. The magnitude of the proposed ABA project on judicial ethics is such that the Judicial Conference committee would do well to await the results of the research and study of the ABA committee before finally drafting the Federal code of judicial conduct. This I believe it will do.

Some Misunderstandings

We have referred to the June 10, 1969 resolutions of the Judicial Conference of the

United States which have been much discussed since their adoption and to which there has been substantial opposition. I think the Judicial Conference resolutions have been widely misunderstood.

Resolution I, adopted by the Judicial Conference, reads as follows:

"A judge in regular active service shall not accept compensation of any kind, whether in the form of loans, gifts, gratulties, honoraria or otherwise, for services hereafter performed or to be performed by him except that provided by law for the performance of his judicial du

ties.

"Provided however, the judicial council of the circuit (or in the case of courts not part of a circuit, the judges of the court in active service) may upon application of a judge approve the acceptance of compensation for the performance of services other than his judicial duties upon a determination that the services are in the public interest or are justified by exceptional circumstances and that the services will not interfere with his judicial duties. Both the services to be performed and the compensation to be paid shall be made a matter of public record and reported to the Judicial Conference of the United States."

The resolution prohibits the acceptance of compensation such as honoraria for extra-judicial services. But it also provides that compensation may be accepted on application of a judge to the judicial council of the

circuit (which is composed of the judges of the United States Court of Appeals of each circuit) and upon a determination that the services are in the public interest or are justified by exceptional circumstances and that the services will not interfere with his judicial duties. Approval must then be made a matter of public record.

Despite the adoption of this resolution by the Judicial Conference some federal judges feel that it is demeaning to require a judge to seek permission to accept compensation for extrajudicial services, such as lecturing, teaching and writing. Critics of the resolution complain that the Judicial Conference acted in haste and without mature consideration, that inadequate study was given to the subject matter, and that the Conference was rushed into action by public clamor resulting from the Fortas case. Some opponents state that the resolution will deprive the law of much needed and valuable services of judges as law teachers, lecturers and writers. But the resolution does not accomplish this result, nor was it intended to do so. The resolution prohibits only compensated nonjudicial services, and as we have pointed out, permission may be granted for the payment of compensation upon a determination of the judicial council of the circuit that the duties are in the public interest or are justified by exceptional circumstances and do not interfere with the performance of the judge's duties.

We are giving further study to

the question of compensated outside activities of judges and will review the effect of the resolution after accumulating some experience in its use.

The "Annual Statement” Resolution

The Judicial Conference also adopted a resolution requiring each judge to file an annual statement with the Conference "of his investments and other assets held by him at any time during the year as well as a statement of income, including gifts and bequests, from any source, identifying the source, and a statement of liabilities." The Judicial Conference resolutions have no application to Justices of the Supreme Court, because the statute creating the Conference conferred no powers over the Supreme Court to it. However, four Supreme Court justices have announced their agreement in principle with the standards of conduct adopted by the Conference and their intention to act accordingly.

Commenting on the Judicial Conference resolution, the Washington Post, in its editorial dated June 13, 1969 entitled, "Buttressing Judicial Integrity," said in part:

"Admirable though it is, the resolution adopted by the Judicial Conference of the United States forbidding judges to accept pay for services off the bench leaves many questions unanswered. The Conference has gone a long way in buttressing integrity in the courts. By any standard that may be applied,

its action is formidable and courageous. Nevertheless, it is more of a beginning than an end.”

No Monastic Life Intended The Judicial Conference resolutions do not mean that judges must henceforth lead a cloistered or monastic life. The distinguished president of the Institute of Judicial Administration, Judge Irving R. Kaufman, of the United States Second Circuit Court of Appeals, in a letter to members of the Institute, warns against such possible restrictions. He states:

that

"In view of the growing concern about outside activities of judges, we think it important to reaffirm the principle judges should not become monastic, but should continue to work with the organized bar and the law schools of this country in efforts to improve the administration of justice. Judicial reform is no more a sport for the weak-hearted than it is for the short-winded. If judges should falter now in face of the agitation of the moment, much of the motive power behind court reform would be lost.

"The Canons of Judicial Ethics deserve careful study and possible revision, but the task should be undertaken calmly and deliberately, with full realization of the great value of judicial participation in the betterment of the law and legal institutions."

Judges Must be Realists

It would be difficult to disagree with the excellent state