ized the inability of Congress and the courts to understand each other as "chronic, debilitating fever." A former Member of Congress, Judge Coffin currently is a senior judge on the First Circuit Court of Appeals, having for many years been chief judge. He chairs the Judicial Conference Committee on the Federal Judicial Branch.

Judge Coffin is joined by Judge John C. Godbold, who is director of the Federal Judicial Center. Judge Godbold previously served as chief judge of the Fifth and Eleventh Circuit Courts of Appeal.

The third member of the panel is Judge Walter K. Stapleton, a circuit judge on the Third Circuit Court of Appeals. Judge Stapleton is chairman of the Judicial Conference Committee on Codes of Conduct.

Before I recognize you, I would like just for a moment to yield to my colleague from California.

Mr. MOORHEAD. Thank you, Mr. Chairman.

As our chairman suggested, I think it is important to point out that we are fortunate that corruption and criminal activity appear to be very rare in the Federal judiciary. Our Federal judiciary has a long and honorable history that may be unmatched by other elements of public, private, or corporate life. In all systems that men have devised, however, something occasionally will and does go wrong. The job of Congress is to try to guarantee to our people that judges administer justice without fear of retribution and without influence or favor.

The problem is, how do you maintain judicial independence and, at the same time, assure public accountability? Congress is accountable to its colleagues and the electorate. Judges are accountable only to the Congress, but judges know how cumbersome and unwieldy the impeachment process is. As a result, very few judges are disciplined through the impeachment process.

Legislation before us this morning would further strengthen the Judicial Discipline Act of 1980, and it would also set up a national commission to study the impeachment process and possibly recommend some changes in that process.

We also have legislation before us which addresses a concern relating to the work performed by senior judges. A Federal judge can elect retirement, or he may elect senior status. If he elects senior status, then the deal is, he is expected to do some work. If he elects senior status and does no work, then he should have selected retirement. To do otherwise, in my opinion, may be an abuse of the system.

I would like to say, however, for the record, that I think the selection of Warren Burger as a person to be commented on in these articles on senior judges was almost outrageous, because he has been working full-time in the celebration of the 200th anniversary of the Constitution and the Bill of Rights and giving all of his time to public service. To single him out in these articles as getting retirement pay as a senior judge is very, very unfortunate in my opinion.

Today's hearing will be helpful in better understanding the problems facing our judiciary and what we can do to solve some of these problems.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. I thank my colleague.

I would like to join in Mr. Moorhead's comments on the former Chief Justice. I think, indeed, he ought to be commended for his work rather than questioned about his service in terms of the more narrow decisionmaking process that might have been engaged in. I would like also to say that I know there may be other points of view, and we will accept for the record, certainly, other points of view. Some of the judges, perhaps not agreeing entirely with the witnesses we have here this morning, might, and have indeed, taken a more narrow view of what is possible with respect to discipline statutes with respect to performance of judges, feeling the Constitution speaks more purely on that question. The implications of that view, however, are also troublesome in terms of the sort of accountability on which, it seems to me today, American society depends. That is why I think, in addition to that which we contemplate here this morning, a definitive study is certainly indicated. In any event, I am very pleased to call as witnesses this morning the three judges I have referred to: Judge Frank Coffin, Judge John Godbold, and Judge Walter Stapleton. If all three would come forward and proceed.

Frank.

STATEMENT OF FRANK M. COFFIN, SENIOR CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT, AND CHAIRMAN, COMMITTEE ON THE FEDERAL JUDICIAL BRANCH

Judge COFFIN. Thank you, Mr. Chairman, Congressman Moorhead.

I know that I speak for both Judge Godbold and Judge Stapleton in saying it is a particular pleasure for us to appear before this subcommittee. We don't know of any forum characterized by a more responsible or sensitive or restrained oversight than you have always exhibited.

I have been told that in addition to addressing the specific problem of senior judges I should set the stage for the context in which all of these matters will be discussed. But first let me call your attention to the statement that we have submitted giving extensive detail to the very brief oral testimony that I will give.

Mr. KASTENMEIER. Without objection, Judge Coffin, the 35-page statement, together with an equal number of pages more or less, will be accepted for the record.

Judge COFFIN. It is a 40-page appendix, and we have put our best effort into giving you not only statistics, history, statutory authority, but also the most current reactions from all of the circuits, from both the circuit executives and, most importantly, from all of the chief judges of the circuits. So I urge you and your colleagues to read all of that.

I begin also with something that I think is not necessary but, nevertheless, should be explicitly said, and that is, trying to advance the cause of the judiciary and trying to underscore the very real problems and the pressures we sense does not mean we are oblivious to those which you feel. We feel we are in a common situation where oftentimes it is our fate in this democracy to be criticized by people, and the less informed the people, the more virulent

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the criticism. So in talking about ourselves we do not intend to be insensitive to your welfare and, what is ultimately at stake, the welfare of the country.

I begin with this deliberately somber statement. I have never seen more judges and more courts at all levels in all parts of the country more disillusioned and disheartened and demoralized than the judges of the present time. Many factors have accumulated, many legitimate factors as well as some that aren't so legitimate. We are talking to a branch in which, since my tenure, the complexity and quantity of cases has tremendously increased. We are in an era where the amount of work each judge spends on a committee of his court or of his council or of the Judicial Conference has increased. You well know that the demands of the disciplinary procedure, as Judge Godbold will say, take much of judges' time. The sweep of ethical restraints has gone far to monasticize the judiciary since I ascended the bench some 23 years ago. We have financial reporting which, in our case, as in yours, is getting increasingly detailed. We even find that in some of the so-called benefits or perquisites, like survivors' benefits, health, and life insurance, the benefits are not competitive with those in the private sector.

So when we add to that the denial of cost-of-living increases and the trauma of what I call, "Black Tuesday," February 7, where President Reagan's pay proposals were overwhelmingly rejected, this is indeed a sad and somber lunar landscape.

Appendix A of my statement contains a survey of 34 reactions from judges throughout the country, 34 of some 690. That makes dismal reading, and it shows the extent to which judges are having to sell property to pay debts, to take outside jobs, to reduce their standard of living.

The report from the circuit executives is made available to this committee before anyone else, and it shows, from my count, since the pay rejection, 22 judges throughout the country are seriously considering resignation, 5 others deliberating on it for the first time. It shows how some judges have felt it necessary to take teaching jobs at more than one school.

Our problem is not only the young judge who stays for a while and then leaves after 5 or 6 years, which you are very familiar with, but a new problem that Judge Bechtel of Pennsylvania just pointed out to me, and it is on page 9 of the statement, and that is the older short haul judge, the judge who has become a State pensioner from a State court system and then can afford to join the Federal judiciary. They do fine work, but, as Judge Bechtel points out, if we have 100 judges coming on the bench at a very late stage as a State pensioner and we have lost 10 years from each judge that he might otherwise have given the Federal judiciary, that is 1,000 judge years. So that is a subtle threat that has never been particularly stressed before.

Coming to the senior judiciary, this 71-year-old institution, I never thought that it was anything else but one of the jewels in the crown of the judiciary. I have my senior in the first circuit, Judge Bailey Aldrich; Walter Stapleton, until recently, had his beloved senior Albert Maris; and John Godbold had his beloved senior, Elbert Tuttle, who happily is still alive and working well.

Therefore, it was a shock to see the stories in the paper that Congressman Moorhead referred to, particularly singling out Chief Justice Burger and John Godbold as two people who were not working when, in truth, Chief Justice Burger not only as a fulltime statutory job but has gone into the hospital several times for exhaustion. Thank goodness John Godbold manages not to do that, but he is working as hard as any judge in the country as Director of the Federal Judicial Center.

It was perhaps our fault that we were not able to devise quickly a response to that report. In retrospect, I wish we had dropped everything else and tried to do for the press at that time what we have been doing since then for this subcommittee. But it is hard to make the case that also fits a 30-second sound bite on television or a headline in the paper.

My statement gives you the origin and statutory authority. Basically, though, the constitutional dual provisions of life tenure during good behavior and no diminution of compensation are the two pillars that have made us an independent judiciary but that also were the origin of the senior judge concept, because, valuable as those two provisions were, they did mean that in the early part of this century some judges were staying on just too long, and Congress realized that. In 1869 they first said that judges could resign at age 70, but they didn't say anything about continuing to do judicial work.

So in 1919 they invented the concept of senior judge. That is, a judge could take senior status and resign from active status but continue doing his duties, thus opening the way for a younger and vigorous judge to come on the scene while the older judge still was able to give his wisdom and experience. That was perfected in 1948 and further perfected in 1954 when the retirement age was dropped from 70 years with 10 years of service to 65 years and 15. Then in 1984, you further refined the sliding scale, the rule of 80, as we called it.

I am not going to spend much time on the contributions of senior judges, they are spelled out very much in my written statement, but you know the percentages-roughly 14 percent of the overall caseload-but read the statements of the chief judges and you will find that in some areas, like the Eastern District of Pennsylvania, they are carrying 67 percent of the load of an active judge. In the eleventh circuit, they are doing the work of 12 active judges. In the eighth circuit, they are doing 75 percent of an active judge's caseload.

But, in addition to this, they are really doing some nitty-gritty work. They are taking off the shoulders of the active judges a great deal of the responsibility for speedy trial conformance; they are doing Dalkon Shield cases, asbestos cases; they are holding the fort during the very lengthy time that it takes to fill vacancies; and, in the eleventh circuit, Judge Godbold's old circuit, senior judges are making it possible for the court of appeals to have 33 percent more oral arguments than they otherwise would have. They are serving on committees; they are serving as chairmen of a third of our Judicial Conference committees; they are using substantially fewer resources per judge than an active judge, but that data is in our statement.

As for demographics, you know that of the 306 senior judges, 50 are not performing judicial services today. Of those 50, 7 are disabled. Of the 43 remaining, the average age is 82. Two are, believe it or not, 100 or over; 2 are in their 90's; 20 are in their 80's; 16 are in their 70's; and only 3 are under 70.

Just to now address very briefly, because I know you will want to ask questions on each of these comments, what about H.R. 1930? First of all is the threshold question of the fairness as to the present senior judges who are not working. As Judge Clark of the fifth circuit said, to suddenly impose a work requirement on them is to change the rules after a lifetime of service.

But, second, these judges, unlike perhaps some recent appointees, have suffered every bit of the 30 percent pay erosion since 1969, and in my appendix G, I total up what they would have gotten if their pay from 1969 on had been adjusted as civil service pay has been, and it amounts to some horrendous figures-$500,000 without interest, and if you compound it at 5 and 10 percent, it produces figures that I don't dare to mention, because they could be misinterpreted as a plea for that amount of cash on the barrel head now, but I am just saying it is unfair to say to these people, "OK, you've spent your life in this system, and now goodbye.'

Assuming that you can get over the fairness angle, Mr. Chairman, I must say at this point that the remarks I make are my personal remarks. I think they may reflect that of other judges, but remember that your bill will be studied by my committee on the judicial branch, so my remarks here are not officially representative of the judiciary as a whole.

In the first place, what occurs to me is the difficulty of measuring judicial workload for any percentage. What is courtroom participation? We know that many judges with the same caseload spend varying amounts of time in the courtroom. What is encompassed under administrative duties? Does that embrace such things as committee work; naturalization ceremonies; various commemorative events; inductions of new judges; deaths of old judges; talks to civic groups; moot courts; meetings with State judges; meetings with bar associations; circuit conferences; continuing education seminars; and, even testifying before a committee of the House or Senate? So these are technical, pragmatic problems.

Another problem that some of the chief judges have pointed out to me is that it is an incentive to a judge to carry on more work than he should. If he has been doing 35 percent of the work of an active judge, and his powers are now failing, he is going to knock himself out trying to keep above that magic 25 percent.

Then there is another incentive to retain active status longer than he should. This situation would bring us back to the old problem that led to the congressional action in 1919; a judge just doesn't want to get into this hassle, so he remains an active judge longer than he should, and I don't know how to prevent him from remaining.

There is also an incentive for judges, when the time comes, when they could take senior status, just to resign and get out and practice law and do whatever else he wants to build up some estate for his family.