On a less essential point, our committee, in its report to the House of Delegates, favored authorizing the five man commission or court to make a final order, subject only to review by the Supreme Court rather than channeling the procedure through the Judicial Conference. We thought that a five man court so carefully selected should be considered as competent to make an order.

My final question is with reference to combining the power to investigate and to bring charges in the same body as the trial authority. We are aware that such vesting of the combined power in administrative commissions has been held to be not unconstitutional in some cases but being constitutional is not equivalent to being a desirable practice.

A very recent decision of the Supreme Court, not yet available in the reports, is quoted in the news as holding that a person may not be removed from the relief rolls without a hearing before administrators who have not been involved in developing the evidence considered. This conforms to recent state court decisions holding that where the same individual acts as both a prosecutor and judge the proceeding is lacking in due process.1

The State vs. McPhee case cited in the footnote contains (p. 722) the following comment with reference to the procedure which avoids combining the power of prosecution with the trial authority:

In order to obviate such objection the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., provides for the appointment of the board's general counsel directly by the president instead of the National Labor Relations Board. Likewise under the Federal Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., hearing examiners are provided who are entirely independent of the administrative agency legal staff who prosecute proceedings before such examiners. The method provided in the Taft Hartley Act is, of course, available here. Our committee report to the House of Delegates of the American Bar noted that the pending bill is not applicable to the members of the Supreme Court, that the justices would not be subject to its provisions. The members of our committee are not in agreement on whether this is desirable. Those of our committee who believe the bill should be made applicable to the members of the Supreme Court assume that the Senate Committee has fully considered the question and that any comment by us would not result in any change.

I appreciate the opportunity to be heard before this distinguished committee and will hope that my observations may prove to have some value in solving an intricate problem.

BIOGRAPHICAL SKETCH OF C. FRANK REIFSNYDER, ESQ.

C. Frank Reifsnyder, Esquire, representing the American Bar Association, was admitted to the Bar of the District of Columbia in 1945 after being educated at The George Washington University (A.B., 1944; LL.B., 1946). He served as a Deputy Clerk for the United States District Court for the District of Columbia while attending law school, as Secretary to Judge T. Alan Goldsborough of that Court for the year 1945, and as law clerk to Chief Judge Bolitha J. Laws of that Court for 18 months in 1946 and 1947. He served as an Assistant United States Attorney for the District of Columbia for four years from 1947 to 1951 and as Special Assistant to the Attorney General to the United States in 1950 and 1951. He joined the law firm of Hogan & Hartson of Washington, D.C. in 1951 and has been a partner since 1959.

He served as Chairman of the Section of Judicial Administration of the American Bar Association in 1967-68 and as a member of the House of Delegates of the American Bar Association in 1968-69. He is a member of the Personnel Security Review Board of the Atomic Energy Commission; a Director of the National College of State Trial Judges, Reno, Nevada; and a member of the

1 State vs. Kelly, 145 W. Va. 70; 112 S.E. 2nd 641 (1960), quoting from the Syllabus: "Where Motor Vehicle Commissioner visited used automobile dealer and investigated the operation of dealer's business and Deputy Commissioner, who was appointed by and was responsible to the Commissioner, held hearing to determine whether dealer's license to engage in business should be canceled and the Commissioner testified at such hearing and license was revoked, the dealer was denied due process of law. Code, 17A-7-1 et seq., 2; Const. Art. 3 § 10; U.S.C.A. Const. Amend. 14, § 1."

State vs. McPhee, 6 Wisc. 2nd 190, 94 N.W. 2nd 711 (1959), quoting from the Syllabus: "Action of a member of Board of Regents of State Colleges in acting both as counsel for person who brought charges against a tenured teacher, and later as a judge, in determining, the merits of the charges, was highly improper, and such member's conduct coupled with Board's improper handling of exhibits offered by the opposing parties, had a cumulative effect of denying discharged teacher a fair hearing. WSA 37.31(1).'

See also Schlesigner Appeal, 404 Pa. 584, 172 A. (2nd) 835 (1961).

National Panel of Arbitrators of the American Arbitration Association. He is a Fellow of the American Bar Foundation; has served as a Fellow of the Institute of Judicial Administration; a Director of the Bar Association of the District of Columbia and in varous other offices of both the Bar Association of the District of Columbia and the American Bar Association.

In addition to being a member of the Bar of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit, he is a member of the Bar of the Supreme Court of the United States and of the Bars of the United States Courts of Appeal for the Third and Seventh Circuits.

STATEMENT OF C. FRANK REIFSNYDER, ESQ.

Mr. Chairman, and members of the Subcommittee, on behalf of the American Bar Association I wish to express our deep interest in the hearings and studies which the Subcommittee has conducted relating to procedures for the removal, retirement and disciplining of unfit Federal judges and to express our appreciation for your invitation to appear here today.

As you know, at the Midyear Meeting held on February 23, 1970 the House of Delegates of the American Bar Association adopted the following resolution which was proposed by the Section of Judicial Administration:

"Resolved, that the American Bar Association support in principle the enactment of the Judicial Reform Act as contained in Title I and Title II of the Senate Bill 1506; that the Section of Judicial Administration be authorized to represent the American Bar Association before Congressional bodies of the United States concerned with this legislation."

Judge Frank J. Murray of Boston, the present Chairman of the Section of Judicial Administration, is presently out of the Country. Since I was Chairman of the Section of Judicial Administration when the Section's consideration of this proposed legislation began, since I have attended some of the previous hearings conducted by the Subcommittee and since I have followed the progress of the Committee's other hearings, Judge Murray asked me to appear here today.

Since the details of the legislation are well known to those in this room, I shall not discuss them beyond stating that they create a five-man judicial removal commission to be composed of active judges, at least two of whom would be District judges and at least two of whom would be Circuit judges not members of the Judicial Conference of the United States. These commission members would be appointed by the Chief Justice of the United States for terms of four years and would serve without salary. The commission would be empowered to investigate complaints about the official conduct of any judge of the United States to determine whether such conduct has been consistent with the good behavior required by Article III of the Constitution. If a judge's conduct were found not consistent with the good behavior required by the Constitution, the commission would report its findings to the Judicial Conference of the United States recommending removal from office and at the same time enter an order directing the judge to cease the exercise of any judicial duties pending disposition of his case by the Judicial Conference. The findings by the Judicial Conference would be subject to review by the Supreme Court of the United States by writ of certiorari. If the recommendation were sustained by the Supreme Court, the Judicial Conference would so certify to the President and the judge would be removed from office. The Bill also provides that the commission may investigate all complaints concerning the physical or mental condition of any judge of the United States. If the commission finds a judge has a physical or mental disability seriously interfering with the performance by him of one or more of his critical duties and that such disability is or is likely to become permanent in character-the commission shall certify its determination to the President and the judge shall be involuntarily retired from active service.

The predecessor to S. 1506 was introduced by Senator Tydings on February 28, 1968. It came to my attention shortly thereafter and I personally attended certain of the hearings of this Subcommittee in the months of April, May and June of 1968. I attempted at that time to appoint a committee of the Section to study this subject carefully for the purpose of making a recommendation to the Council of the Section for action. I contacted several of the younger outstanding Federal District judges requesting them to serve on the Section's committee but each of them refused for a variety of reasons. In each instance, among the reasons given was the sensitivity of this subject within the Federal judiciary and the suggestion

on the part of some of them that perhaps it would be better if the Section's committee was not dominated by Federal judges.

Since my term as Chairman was coming to an end, I handed the problem of appointment of the committee to Mr. Justice McAllister of the Supreme Court of Oregon who succeeded me as Chairman. Mr. Justice McAllister named Professor Robert A. Leflar of the University of Arkansas Law School as Chairman of the committee and named Dean Ray Forrister, Dean Robert B. McKay, Professor Maynard E. Persig, Franklin Strayer, Esq. and A. B. Tiger, Esq. as members. Professor Leflar has for many years organized and conducted the Appellate Judge Seminars at New York University and is an unusually well qualified student of judges and judicial administration and the other members of his committee are well known law professors and private practitioners.

After careful study the majority of the Section's committee concluded that the proposed procedures of Titles I and II are constitutionally permissible and recommended their approval in principle by the Section of Judicial Administration. The Council of the Section thereafter considered the proposed legislation carefully and voted unanimously (with two Federal judges abstaining) to recommend to the House of Delegates that the Association support Titles I and II in principle. As the Subcommittee knows, the House of Delegates overwhelmingly approved the Section's recommendation at the Atlanta Midyear Meeting on February 23, 1970.

I wish to emphasize that we in the United States are most fortunate to have a Federal judiciary whose moral character is of such a high order. The vast majority of our Federal judges are men of ability, integrity and industry and serve our Republic well. However, when we consider that there are some 540 judges in the Federal system it is apparent that from time to time we shall find one who refuses to try his cases, or refuses to decide his cases or who engages in some other improper conduct. We also know that from time to time a judge suffers from some physical or mental defect that substantially interferes with the performance of his duties. Our history has demonstrated that removal by impeachment is unwieldy and largely unsuited to deal with the occasional Federal judge who is guilty of improper conduct. We believe the principles contained in Titles I and II of S. 1506 will permit the Federal judiciary to effectively police itself, will increase public confidence in the integrity and competency of the Federal judiciary and thus will tend to perpetuate the independence of the judiciary. Our consideration of this matter has convinced us that the proposed legislation is constitutionally permissible.

As this Subcommittee knows, some two dozen States have adopted provisions setting up removal machinery. Approximately 17 of these have been patterned on the California method which provides for a removal commission with a small permanent staff. This legislative and constitutional amendment activity in the States is an indication of the widespread belief on the part of our citizens that better methods of judicial removal and discipline are required. We believe the principles embodied in Titles I and II of S. 1506 are sound, are timely and are in the public interest as well as in the interest of the Federal judiciary. We vigorously support the adoption of Federal legislation embodying such principles.

BIOGRAPHICAL SKETCH OF THEODORE VOORHEES, Esq.

Mr. Voorhees is a senior member of the law firm of Dechert, Price and Rhoads of Philadelphia, Pennsylvania. During his distinguished career he has been Chancellor of the Philadelphia Bar Association, President of the National Legal Aid and Defender Association and Chairman of the National Conference of Bar Presidents. He is appearing today as Chairman of the American Bar Association Standing Committee on Judicial Selection, Tenure and Compensation.

STATEMENT OF THEODORE VOORHEES

Mr. Chairman and members of the Committee, my name is Theodore Voorhees. I am a practicing lawyer in Washington, D.C. and appear today in my capacity as Chairman of the American Bar Association's Standing Committee on Judicial Selection, Tenure and Compensation. Mr. Bernard G. Segal of Philadelphia, the President of the Association and my immediate predecessor as Chairman of the Standing Committee, had hoped to appear before the Subcommittee today to present the views of the American Bar Association with respect to S. 1506. Unfortunately, his busy schedule made it impossible for him to attend today's hearing, but I understand that a later date has been set for his appearance. My

own testimony will be confined to a presentation of the views of the members of the Standing Committee on Judicial Selection, Tenure and Compensation, views which were formed by that committee after an extensive study and discussion of the bill.

I should say at the outset that our committee has strongly endorsed the need for legislation to provide machinery for the removal of federal judges who are no longer qualified to serve on the bench. While the A.B.A. Section on Judicial Administration and the Association's House of Delegates have both endorsed S. 1506 in principle, our committee refrained from doing so because we had certain reservations about the mechanics for removal provided in the bill. Instead, we filed a report in January of this year with the House of Delegates in which we suggested certain changes in the removal machinery which seemed to us to be wise. We did not ask the House of Delegates to insist upon our suggested changes, but were content to rely on the opportunity which was generously offered to us by Senator Tydings to appear before the Subcommittee and explain the reasons why several provisions of the bill seem to us to need revision.

There are three areas in which our committee has reservations respecting S. 1506. The first involves the method of selection and composition of the commission that would be established to conduct hearings and recommend removal of judges where that action was found warranted. The bill provides for the appointment of the members of the commission by the Chief Justice of the United States, without limitation other than that there should be five members, two of whom would be judges of a United States District Court, and two, judges of a United States Court of Appeals. Since, under the bill, review of the recommendation of the commission would be made by the Judicial Conference, of which the Chief Justice is chairman, and certiorari would lie to the Supreme Court, we considered that it would be wiser to set up a somewhat different method of selection which would provide a more diverse responsibility for the selection and composition of the commission.

As an alternative, we are therefore suggesting that S. 1506 should be amended to provide for a panel of eleven judges chosen from the Courts of Appeal or District Courts, one to be selected by the circuit council of each circuit. Members of the panel would serve only when appointed to a particular removal commission. We advocate that the latter should be composed of five judges who would be selected by the Judicial Conference of the United States from among the members of the panel. We believe that no judge from the circuit of the judge who is the subject of complaint should be appointed to a particular commission. Our second concern with S. 1506 is that it might be found to run afoul the requirements of due process, since the removal commission would serve, first, in an investigatory capacity, secondly, as a prosecutor and, thirdly, as the adjudicator of the issues posed by a particular complaint.

As an alternative, we suggest that provision should be made in the bill for the commission to have a staff which would investigate complaints against judges, report to the commission, and serve as prosecutor in the event that the staff recommends removal in a specific case. We suggest that the reports of the staff should in each case be referred by the commission to the circuit council of the circuit of the judge under investigation in order that the removal commission would have the comments or recommendations of the council. We believe that review of the staff recommendations by the circuit council should lead in many instances to voluntary resignation by the judge whose removal is being sought.

Our third suggested change in the bill would be to vest in the commission itself, rather than the Judicial Conference, the power to terminate the judge's judicial duties and remove him from the bench. We believe that there is no need for review or action by the Judicial Conference, but would retain the provision for the right of the judge who is removed to apply for certiorari to the Supreme Court of the United States.

I do not think that there is any necessity for me to belabor the reasons supporting the changes in the bill that we have suggested. A somewhat broader panel of available judges to serve on a particular removal commission seems to us clearly useful, and a certain amount of local authority vested in the various circuits to name their own representatives on the commission also seems desirable. We believe that our proposal for the method of selection of the Com mission might well be better received by the judiciary itself than that set forth in the original bill.

We strongly urge that provision be made for a staff and that it be given investigatory and prosecutorial duties since we believe that it would significantly strengthen the machinery in the bill. The provisions of S. 1506 are somewhat unclear as to who would enter the order removing the judge, and we believe it important that the power should be explicitly given to the commission.

Without intending in any way to minimize the importance of the changes in the bill which have been suggested by our committee, I nonetheless want to lay my principal stress on the desirability of establishing machinery within the judiciary for the removal of judges who because of senility, intemperance, sloth or any other reason cease to perform their duties on the bench with the good behavior that the constitution requires for federal judges. In the last several decades few metropolitan areas have escaped the spectacle of at least one federal judge who has lost his ability to conduct himself with the courtesy, consideration, judicial acumen and fairness that are absolute prerequisites to the administration of justice. The problem is by no means confined to our major cities.

A great many practicing lawyers have had the unhappy experience of appearing periodically before a federal judge with the knowledge that the outcome on a particular issue will depend upon the whim, the prejudice or the sobriety of the judge on the day of trial. Lawyers and clients alike are insulted or abused. Protest is likely to lead to sure defeat in the cause. Helplessness and frustration are shared by the lawyers and their clients alike. The spectacle is one that reflects great discredit on our courts, but the conscientious, well behaved judges, though constituting a vast majority, are as unable to do anything to restrain the misbehaving judge as are the lawyers and litigants. Only Congress can create a method of putting an end to judicial behavior when it becomes scandalous and outrageous.

No one with any knowledge of the history of impeachment in this country can seriously contend that that process holds out any hope of providing a solution. It does assure an awareness on the part of justices of the Supreme Court that they can be brought before a disciplinary tribunal if they depart from the constitutional standards of good behavior. But everyone knows that Congress is too overburdened with other duties to summon a judge of the lower federal courts before it for purpose of impeachment. That fact explains why S. 1506 applies to the lower federal courts and not to the justices of the Supreme Court. It is not that the justices are beyond the danger of falling short of the constitutional requirement of good behavior, but the threat of impeachment has proved to be a sufficient deterrent to prevent misbehavior on their part. Demonstrably, it has not proved to be such a deterrent in the case of the lower court judges.

The favorable experience of a number of state removal commissions, notably that in California, has been such as to encourage Congress to move ahead with a similar tribunal for the federal judiciary. I do not suggest that there are any great number of federal judges who are deserving of removal at the present time. The point is that to permit even one misbehaving judge to continue to serve on the bench constitutes a violation of the Constitution and a condition that is nothing less than intolerable. On behalf of our committee, I urge the passage of S. 1506, subject to some amendment along the lines that we have suggested.

Mr. VOORHEES. Mr. Chairman, I would like to emphasize in the first place that while our committee did not join in sponsoring the resolution that was approved by the House of Delegates at Atlanta, that did not mean that we were not strongly supporting Federal legislation in this field. The resolution which we proposed in our report was very close to the one that was actually adopted, and I think it might be helpful to avoid misunderstanding, for me to read that resolution into the record:

Be it resolved that the House of Delegates support the enactment of federal legislation establishing procedures for the removal of federal judges who fail to meet accepted standards and constitutional requirements of good behavior and providing for the retirement of members of the federal judiciary who are subject to mental or physical disability.

Be it further resolved that the power of removal be conferred upon a removal commission to be established by Congress and that the selection of members of the commission shall be vested in the federal judiciary.