U.S. JUDICIARY THE DELICATE ISSUE OF JUDGING THE JUDGES

Press, Volume CIX, Issue 32011, 11 June 1969, Page 14

U.S. JUDICIARY THE DELICATE ISSUE OF JUDGING THE JUDGES

(By

FRED P. GRAHAM,

in the “New York Times’ )

(Reprinted by arrangement)

WASHINGTON, June I.—Absolute power may not corrupt absolutely, as has been claimed, but independent power does seem to create resentment, as the country’s Federal judges are learning to their sorrow these days.

In the two weeks since Justice Abe Fortas fled the Supreme Court under fire for having played financial footsie with a stock manipulator, the chorus of complaints about judicial conduct has risen almost to a screech.

Some examples: “Douglas is Next” was the caption of a document in which Senator Strom Thurmond of South Carolina stated his opinion of the past—and future—of Justice William O. Douglas. Justice William J. Brennan, jun., a partner in a real estate venture with two judges of a lower court, should be disqualified from acting on an appeal from that court, a disappointed litigant claimed. On Monday, the Supreme Court refused to disqualify Justice Brennan. Senator Clifford Case had never, before this year, been able to persuade more than eight other Senators to join in sponsoring his bill to make Congressional and Executive officials disclose their incomes. He added judges to his disclosure bill last Tuesday and before the day’s end 19 Senators had rushed to cosponsor it. Political Influence Boredom undoubtedly played a part in this sudden season of piety about judges’ ethics. So little serious [business is going forward on [ Capitol Hill these days that a righteous cause is welcomed by all. Politics may even have influenced events. Senator Paul J. Fannin, Arizona Republican, issued statements from three cities last week, disclosing that Justice Douglas wrote an article about folk singing (published under his by-line) three months ago in the magazine “Avant Garde.” Senator Fannin’s point—that Justice Douglas was paid ($350) and that the publisher of the magazine is Ralph Ginzburg whose conviction on pornography charges was upheld by the Supreme Court in 1966 over Justice Douglas’s dissent—was easily lost on those who did not share the; Senator’s distaste for the I Justice’s liberal record. [ But beyond the diversion | from the summer doldrums > and the conservatives’ delight | at the liberal justices’ discom-l fiture, there is a substantial] reason for the current in-| terest in the ethical standards ] of jhe judiciary. A Free Agent The problem is not that the Federal judiciary is infected with rot, for it has seen remarkable little malfeasance ; over the years. It is rather; that the individual Federal judge has remained an independent, free agent in determining his own conduct, so long as it did not constitute grounds for impeachment. The situation was tenable so long as Congressmen were subject to the same generous constraints. But last year both Houses of Congress adopted financial disclosure requirements for their members, and now it seems inevitable that the long standing freedom of each Federal judge to follow his own lights must soon end.

The question at the core of the present excitement over judges’ conduct is whether that independence is so important that an occasional bad apple should be tolerated, or if the time has come to begin policing the judiciary in order to maintain public confidence in it.

One school of thought insists that each judge is free to do anything so long as he does not commit an impeachable act. Since only eight judges have ever been impeached and only four were convicted by the Senate, this results in a quite independent judiciary. The other is that impeachment is not the only sanction that can be used against Federal judges, although it is the only one mentioned in the Constitution. This view relies on the Constitution’s statement that judges shall serve for life or during “good behaviour”; thus a judge could be disciplined or removed in proceedings short of impeachment if he were guilty of bad behaviour. Chief Justice Earl Warren has called a special meeting of the Federal judiciary's policy-making arm, the Judi-

cial Conference, to meet at the Supreme Court this month to adopt rules for financial reporting and a comprehensive code of conduct. If these are to be enforced, it will have to be at the expense of the crusty old view of judicial independence.

In 1963, reacting to press criticism of bank and corporate directorships by Federal judges, the Judicial Conference ordered an end to such directorships. Several judges ignored the order and no attempt was made to discipline them. Now, with the heat turned up and Congress feeling selfrighteous about its own disclosure rules, such independence would probably not be tolerated. Senator Joseph D. Tydings, Maryland Democrat, is pushing a plan to establish a five-judge commission with power to remove judges for such non-criminal conduct, and some lawyers are contending that the Supreme Court has the inherent power to set up such a panel to police the judiciary’s ranks. The mere existence of

reporting requirements and a code of conduct would not greatly infringe on the traditional independence of Federal judges. But many lawyers fear that the creation of a removal commission lurking over judges’ shoulders and capable of removing them for “bad conduct" ranging from drunkenness to senility would do so. Some lawyers argue from this premise, and from the general separation of powers structures of the Government, that Congress lacks the power to require financial disclosure of judges. Senator Tydings insists that the courts have the inherent power to police their own ranks, and that Congress has the explicit constitutional authority to pass such laws as are “necessary and proper” to help them do it.

There will be much soulsearching as to whether such a plan is constitutional—and if so, whether it is wise to risk infringing on the kind of free judicial spirit exhibited by men like William O. Douglas.—“ New York Times” News Service, Copyright 1969.