So, as I say, I am very impressed with the presentation and the though given to the matter and the scholarly presentation. That is all I have, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from California, Mr. Daniel

son.

Mr. DANIELSON. Thank you, Mr. Chairman, and thank you, gentlemen.

I am sorry I wasn't here earlier, though I am roughly familiar with the terms of this and related bills. I would like your comment on one point.

I have heard judges suggest, when discussing this subject, a proposal that they have worked out within the judiciary. It is to have a panel, a group of members of the judiciary investigate the charges that may be brought against a particular judge. Thereafter, assuming now that grounds are deemed to exist to remove him, that judge is given the opportunity to retire or resign or whatever the remedy should be. Failing that, the entire record is certified over to the House of Representatives, with a recommendation that an impeachment proceeding be instituted.

This would be a rather draconian step, obviously, but I should think it would have a persuasive effect on the offending judge to get to work, retire without much loss of time, and it would protect all of the constitutional concerns that people have, because impeachment, if it were to be exercised, would still be exercised by a charge being brought by the House and the charge being tried by the Senate in its capacity as a court of impeachment.

Would you just comment?

Senator NUNN. Congressman Danielson, I think that that would be an improvement over where we are now. It does not go as far as I think is necessary, but I think it would be a step in the right direction.

I would believe that the only way that would really be able to cure the serious gaps we have now is if the House on several occasions went ahead and impeached on the basis of the information forwarded to them.

Otherwise, I believe judges, being more familiar with delay than most of the average citizens in our country, would pretty well feel assured that if there were two or three referrals to this committee, that they would be able to stay on the bench at least another couple of years before this committee would be able to devote its attention sufficiently to come to a conclusion.

So I think it would have to be acted on. I think we would have to go through with impeachment in the Senate at some point in time. We have an Ethics Committee hearing that has been proceeding on the Senate side now for several months. It's been pending almost a year. And that would be nowhere as comprehensive as the overall impeachment by the House and trial by the Senate.

Even back in the 1930's, when we had a trial by the Senate, one of the Congressmen I quoted earlier said that he was appalled that during most of the impeachment trial, only three Senators were present.

So I think from the point of view of protecting the judge, when we entrust the very life of ordinary citizens into the hands of our judiciary where they can sentence them to as much as capital

punishment, it seems to me that we can entrust those gentlemen on the bench to properly supervise, and remove, if necessary, their own colleagues.

No one would be more likely to protect the independence of the judiciary than the judiciary itself. So, in short, it would be a step in the right direction, but I believe we would be back here within 3 or 4 years believing we had to take these additional steps.

It is just a question of when we take those steps.

Senator DECONCINI. Congressman, I agree with Senator Nunn and would only go a little bit further, that there are a lot of steps that could be taken short of impeachment. So if this Committee moves in that direction, I think it is very important that you maintain somebody that could discipline the judge, either by private or public reprimand or censure, removing the case load from the judge for a period of time, making a condition of the judge's case load that he seek out some kind of assistance, whether psychological, medical, or what-have-you.

This is what is envisioned. There are many examples that judges will share with you in a private manner of judges that have fallen into alcoholism, other personal problems, financial problems, and have been able to seek out help with their colleagues and assistance, and have had to abandon some case load during that time. I think it is important that that be left in there without having to come to the House of Representatives, of course.

Mr. DANIELSON. If I may, I don't disagree with that at all, not at all.

Senator DECONCINI. You are talking about only the removal. Mr. DANIELSON. I was talking about the guillotine effect of their recommendation in case the result was not achieved otherwise voluntarily.

No, I certainly subscribe to the examples that you have mentioned, Senator DeConcini. I think that probably in the vast majority of cases where a judge has somehow or other offended the standards that we wish to set for them, the pressure of his peers and his colleagues is the strongest influence that can be brought to bear, and by such selective treatment as changing the case load or eliminating it. Just a heart-to-heart talk with the chief judge might make an awful lot of difference.

I wouldn't in any way want to interfere with that.

Senator NUNN. The only thing I would add to that, I think the removal would be used very judiciously and very rarely, if it is given under such a bill. I do believe that having that ultimate guillotine will make all the other remedies much more acceptable. Mr. DANIELSON. Right.

Senator NUNN. It creates a much greater deterrent so that it would probably not have to be used as much. I believe that a judge who was told to either straighten up or ship out would be much more likely to straighten up if he knew that his colleagues could remove him than if he knew that they couldn't.

Mr. DANIELSON. That is what I meant. To give them an implement to be used if necessary in the extreme case. All the judges would be very conscious of the fact that it existed. I think, as you have observed, that the "shape up or ship out" concept would be followed.

Thank you very much.

Senator NUNN. I think reducing a senile judge's case load or a judge who is a chronic alcoholic's caseload may not be an effective remedy for that judge.

Mr. KASTENEMIER. The gentleman from Kentucky.

Mr. Mazzoli. Thank you very much, Mr. Chairman.

I certainly welcome the two Senators to the committee.

It is clear from the statements and the testimony today that the high reputations you are both enjoying in the Senate are well deserved.

Really, I guess we could go on at some length, and your time is limited, but I would like to ask you a couple of questions. Perhaps both of you can address yourself to a general concern that I have, and which is expressed at all the conferences I have attended involving members of the Federal bench.

That is what effect adoption of a bill like this would have on what we, I think, all appreciate, and that is the independence, the vitality, the opportunity of the Federal judiciary to forge off in new and perhaps unpopular and highly controversial areas without the fear of having to be removed or to defend themselves against some peeved client or some disgruntled lawyer.

I wonder if both of you could tell me whether you have any worries about the significant difference between the judiciary of the United States and the judiciary, say, of the State of Michigan, which is not a permanent position, which is not a lifetime appointment, and whether they can still exercise this kind of authority. Senator DECONCINI. I appreciate that concern, and that is what has gone into the deliberation of forming the various aspects of S. 295. The Nunn-DeConcini proposal provides for the instant dismissal of a complaint filed by a disgruntled litigant. The merits and procedural aspects of a case are not proper grounds for filing a complaint against a judge. The sorting of such complaints would be done within the committee, within the circuit. Careful attention to this type of situation would be given to this situation by the judges in the circuit.

I think that is extremely important, that that process be there, to eliminate initially complainants who for instance don't like busing decisions and thereby want to get back at a judge for his or her holding on a busing decision, a condemnation decision or a sentence.

That is the first protection. We are really addressing complaints that go further. We are talking about complaints vis-a-vis Judge Chandler or Judge Ritter, judges who took it upon themselves to not only make decisions that might be unpopular, which I acknowledge is their prerogative and an integral part of their independence, but judges who through their arrogance continue to operate when conflicts of interest have been brought to their attention, to take such actions that indicate their disregard for recognized criminal procedure, rules of procedures adopted by the court itself, or the prosecutor in the case of Judge Ritter.

There was at that time and still is today no real procedure to have that judge's conduct brought to someone's attention. This bill provides for such within the confines of the judicial branch, not

only within that circuit, if such a complaint is lodged and has some merit.

So I think that the argument that should be addressed, as you suggest is the point regarding the independence, of the judiciary that must be maintained.

We must have a procedure whereby complaints based on personality conflicts, or those relating to the merits of any decision are immediately screened and disposed of S. 295 prevents the extensive processing of complaints of this nature.

Senator NUNN. I would just add to that briefly. I agree with everything said, and I will submit to you this flow chart.

As you will note, the original complaint is referred to the Judicial Conduct and Disability Commission. Then they refer it to a judges own contemporaries. This was an addition added by suggestion of judges, so that they would have the first shot at it. They have a limited period of time to act on it. Then it is referred back here.

Then the judge, if there is any action taken at this level, has the right to appeal at every step of the way all the way up the line. If we ever get to the point where, let's say, an unpopular decision, school prayer, busing, abortion, whatever, is sufficient to cause a complaint to be issued, I can think of no one that would protect their fellow colleague more in every step of the way where he has a right to appeal all the way to the Supreme Court.

If we ever get to the point where they would allow their colleague to go all the way to the Supreme Court of the United States, on that kind of emotional, substantive issue, causing a judge to be in any way sanctioned, then I think we have lost judicial independence, anyway.

Mr. MAZZOLI. I would pursue just 1 second, Mr. Chairman; this is such an interesting subject, pursue just to this extent:

Senator Nunn, you said earlier about the guillotine effect and the deterrent effect of this as sort of either shape up or ship out. Would not there be some argument to the effect that there is a deterrent effect on issuing unpopular decisions, being independent, forging off into new areas, if the judge knows that there is a very convenient form of the filing of this frivolous complaint which at least is going to be circulated among his colleagues?

And from what very little I know about the bench, the judges are themselves never really happy to be reversed, they are not really happy to have their colleagues rule on their performance.

I wonder if you think there would be any possibility here that just the easy initiation, however quickly dismissed, and jettisoned, would be a problem to any independent-minded judge?

Senator NUNN. I don't think you can foreclose that possibility completely. I would say, though, that the substance of the decision is specifically excluded as a ground. Anybody that lodges a complaint based on the substance of the decision, they are immediately kicked out of court, so to speak. That is made clear in the legislation.

I would also add to that, having been in a section of the country where judges occasionally have been unpopular, that there always is someone hopping up saying we are going to introduce a resolution of impeachment. I don't believe that a complaint filed with

their colleagues would have as much effect, if any, as a Congressman introducing a resolution of impeachment which has happened many times.

Of course, it hasn't been acted on, but I would put those two on a par.

Mr. MAZZOLI. Thank you very much.

Mr. Chairman, I presume we have the right to maybe send letters to follow up on some questions we have. I might do that. Senator DECONCINI. We would be glad to hear from you.

Thank you.

Mr. KASTENMEIER. The gentleman from Illinois, Mr. Railsback. Mr. RAILSBACK. Mr. Chairman, I know our distinguished colleagues are in a hurry, so I think I will waive my right to question except to generally agree with what I think have been fine statements.

I have read your written statements. I also agree-it was in your statement, Senator Nunn, about Chief Justice Burger's distinguishing between the term "good behavior" and what it might mean relative to high crimes and high misdemeanors.

I also want to remind Senator Nunn that we have a very important meeting coming up out at Andrews on July 23. I won't elaborate on that.

One of our defending champions

Senator NUNN. If we had the kind of leadership on the Senate side as you have on the House side, I would——

Mr. KASTENMEIER. Well, if that is all the questions, I do want to take this opportunity on behalf of the subcommittees to thank both Senator Nunn and Senator DeConcini. It is appropriate that they inaugurate our hearings because of the contributions they have made. We are very grateful to both of you.

Senator DECONCINI. Thank you.

Senator NUNN. Thank you very much, Mr. Chairman, and members of the committee. We appreciate it.

Mr. KASTENMEIER. Now our next witness this morning is Prof. Monroe H. Freedman, designated to represent the views of the American Civil Liberties Union. Because his interest and activities over the years so closely parallel the jurisdiction of the subcommittee as relates to administration of justice, it is fair to note that Professor Freedman has been here many, many times.

He's practiced law, and was counsel of record in civil rights cases that involved delivery of legal services to the poor. He has been active in the national community disputes panel with the American Arbitration Association; he also has authored, among others, a book on Lawyers' Ethics in an Adversary System.

TESTIMONY OF PROF. MONROE H. FREEDMAN, HOFSTRA UNIVERSITY LAW SCHOOL, FOR THE AMERICAN CIVIL LIBERTIES UNION, ACCOMPANIED BY GUIDO GABRIELE

Mr. FREEDMAN. Thank you, Mr. Chairman.

I would like to introduce Mr. Guido Gabriele, a third-year student at Hofstra Law School, who gave me valuable research assistance in preparing my statement for the committee.

Mr. Chairman, may I submit my written statement and comment orally about it more briefly?

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