796 KENTUCKY LAW JOURNAL [VOL. 76 three by the speaker of the House of Representatives; three by the chief justice of the United States; three by the president; and one by the Conference of Chief Justices. It is contemplated that there will be a bipartisan mix of private citizens, attorneys, academics, and high-ranking representatives of the three branches. Because the states are reservoirs of information and, to a certain extent, laboratories of experimentation in the area of judicial discipline, at least one commission member is likely to be experienced in state-administered programs. Provisions are made to ensure the hiring of a top-flight staff and to procure experts and consultants. The commission is authorized an adequate budget. As the focus of the commission's inquiry would be relatively narrow, the final report would come due not later than one year after the date of the first meeting. The report to be submitted to each branch of Congress, the Chief Justice, and the President, must contain a detailed statement of the findings and conclusions of the commission, together with its concrete recommendations for any justifiable legislative or administrative actions. CONCLUSION Congressional authority to legislate federal judicial discipline legislation poses delicate separation of powers problems. The need for a cooperative working relationship among the branches of government is of paramount importance. During a critical stage in the Constitutional Convention, Benjamin Franklin-then a very old man-took the floor and spoke of the need for consensus and compromise: When a broad table is to be made, he explained, and the edges of the planks do not fit, the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands in order that they may join in some accommodating proposition. What we need today between the branches of government is Franklin's "good joint." To develop that joint, the most responsible course would be to rely upon the solid lumber found in the Judicial Conduct and Disability Act of 1980. Moreover, a National Commission on Judicial Impeachment to study current problems and to recom 1987-88] LEGISLATIVE PERSPECTIVE 797 mend any solutions thereto, including constitutional amendments, should be created. As we enter the third century of our system of government, we should be both cognizant of our problems and confident about the future. Our approach to the subject of judicial appointments, discipline, and impeachment, as it is to other weighty questions, should be one of continual reassessment and reflection and not one of reaction. Mr. MOORHEAD. And I did wish to ask one question. You know, two out of the last three cases we have had on impeachment have dealt with judges convicted of felonies that were sitting in prison. We can fight on all these other things, on changing things around, but is there any way that the court would agree that we could handle these cases where there has been a conviction on moral turpitude grounds or a felony and the judges are sitting in prison and still plan to come out and preside in court where they could not even practice law because they would have been disbarred? Is there any way we can handle that without going through this long ritual of impeachment that takes so much time? Judge GODBOLD. Congressman, I neglected to mention, and should have, that H.R. 1620 provides for the amendment of 372(c)(8) to provide that in the case of a judge who has been convicted of a felony and has exhausted all appeals that the Judicial Conference of the United States may, by majority vote and without waiting for the investigatory proceedings at the council level in the circuit and without waiting for action by the judicial council of the circuit, transmit directly to the House of Representatives a determination that consideration of impeachment may be- Mr. MOORHEAD. But my point was, is there a way of avoiding the long and tortuous process that we have to go through in impeachment, which involves several weeks, at least, of the time of the U.S. Senate and time of the committees of the House, on something that should be quite obvious to most, whether he is competent or not? Obviously, for the respect of the court, he shouldn't be sitting on the bench. Judge GODBOLD. Well, I think there are two layers to your question. The first is, should a judge be sitting at all while these matters are going on? Mr. MOORHEAD. Or even afterwards. Judge GODBOLD. Well, if afterwards, then I think this directly raises constitutional issues. Mr. MOORHEAD. I am sure it does. I don't know whether the Constitution should be changed. Judge GODBOLD. I must say that I am hesitant to express a view on the constitutionality of procedures that might be different from what traditionally have been viewed as the procedures required by the Constitution, whether the House could truncate its procedures, and whether the Senate can act by less than the whole, as you know, is a live issue at this time, and I must respectfully say I would be a little reluctant to express any views on those constitutional issues that I really haven't studied. Mr. KASTENMEIER. If my colleague would yield, that is why we call for a study of this narrow area, to see what alternatives can be pursued. It is extremely difficult to see what alternatives can be pursued short of the constitutional form of impeachment we currently engage in. But I think the question should be examined. Hopefully, we will not go through a period in which we have a number of people affected, but nonetheless there always is that possibility. Judge GODBOLD. I could say one thing about the first layer question which was, what happens to a judge who is under a serious charge while the charge is being investigated and before we know what is going to happen? Should he continue to sit? I will have to give you my own personal experience. As a chief judge, I have had three of these in which there were publicly known serious charges. Perhaps it gives you some flavor of how a chief judge can operate with the act as his platform. In each of the three instances, I took the matter up with the chief district judge and said, "Look, this judge ought not to be sitting while this matter is going on." In each of the three instances, the chief district judge agreed, and in each of the three instances the judge voluntarily did not sit until the matter was brought to a conclusion. If we didn't have the act to give us this means of communication, it would be hard to do. Mr. KASTENMEIER. Now, the third of our panel, Judge Walter Stapleton. Judge Stapleton. STATEMENT OF WALTER K. STAPLETON, CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT, CHAIRMAN, COMMITTEE ON CODES OF CONDUCT, JUDICIAL CONFERENCE OF THE UNITED STATES Judge STAPLETON. Mr. Chairman and members of the subcommittee, my assignment, as I understand it, is to provide you with an overview of the current system of assuring ethical conduct in the third branch. I think it is a particularly apt time to be addressing this subject, because the President's Government-Wide Ethics Act of 1989 proposes some rather fundamental changes in the disqualification rules, recusal rules, and other rules that govern the judiciary, and the wisdom of those changes depends in large part on how well you think the present system is working. I am aware that that act is not currently before this committee. I do understand, however, that the committee's jurisdiction covers judicial disqualification and recusal, and I hope the committee will permit me at the end of my remarks to include a couple of comments about some serious concerns that the Judicial Conference has with the Government-Wide Ethics Act of 1989. From an institutional point of view, any overview of judicial ethics has to cover three elements: The standards of ethical conduct, the education of the constituency about those standards, and, finally, the monitoring and enforcement of those standards. As this subcommittee well knows, the principal legislation that establishes ethical standards for the judiciary is the Judicial Disqualification Act, section 455. That act spells out those instances in which a judicial officer has to disqualify him or herself as well as those limited situations in which the parties can waive a disqualification. The other principal source of ethical standards for folks that work in the judiciary are the codes of conduct that have been promulgated by the Judicial Conference of the United States. Back in 1972, a distinguished panel of lawyers and judges headed by Chief Justice Trainer of California came up with a model ABA code of conduct for judges. The next year, the Judicial Conference modified it to reflect the unique situation of the Federal judiciary and adopted it as the code of conduct for U.S. judges, which gov erns all judicial officers-bankruptcy judges, magistrates, as well as judges. That code of conduct incorporates the rules of section 455. Since 1973, the Judicial Conference has adopted additional codes of conduct which pertain to the conduct of most other employees of the judicial branch. The codes of conduct provide not just rules for how a judge behaves in his official capacity but also how he or she must behave in an extrajudicial capacity. There are rules governing everything from personal financial activities, to participation in civic and charitable organizations, to writing and teaching, to receiving compensation for speeches and writing, to the propriety of receiving gifts, to a ban on virtually all political activity. Standards, as this committee knows, are only helpful if those regulated understand what the rules are and are sensitive to the importance of complying. From the time a judge takes his or her oath, the Federal Judicial Center, headed by Judge Godbold, and my committee work together to make sure that he or she knows what the rules are, is impressed with the importance of compliance, and knows where to go to get help if he or she doesn't know what is required in a given particular context, which brings me to the role of my Codes of Conduct Committee. We are sort of the keepers and the interpreters of the codes. We make recommendations to the Judicial Conference regarding amendments to the code, and we provide advice to covered officers and employees about what the codes require in the particular situation that faces them. They can write a letter to the committee, and they can receive a written letter commenting exactly on the problem that is before them and what the codes require in that situation. If there is not time for a written response, they can call me on the telephone, and I am authorized, if the committee has previously spoken on a similar issue, to share the committee's advice without, of course, revealing the previous inquiry. I should say, these written inquiries and telephone inquiries are confidential inquiries unless the inquirer subsequently, for his own purposes, chooses to disclose what advice the committee gave. Periodically, we publish opinions on the issues that come up most frequently, and we publish periodically a summary of the advice we have given in these confidential inquiries. There are now 82 published opinions, and they are put out in this desk book, that includes all the codes of conduct, all the applicable legislation, and all of the opinions of this committee interpreting the codes. To give you an idea of how well this is used, in the last year we have processed 64 written inquiries for advice, and 93 telephonic inquiries. More of the inquiries are addressed to disqualificationwhether a judge should or needs to disqualify him or herself-but they involve everything from how one must behave when one's spouse becomes a political candidate or a public official or whether one can receive a good citizen award or an outstanding jurist award at a banquet sponsored by the Boy Scouts or by a law school. In recent weeks, the most frequent single question that has come to the committee is, how can I explore the opportunities for future nonjudicial employment while remaining on the bench and still stay in compliance with the codes of conduct? We have provided |