Mr. KASTENMEIER. I thank the gentleman from Virginia for his comment.

Speaking as someone who has proposed the commission, the reason was because we have legislative proposals defending the Constitution in terms of removal and there is other concern. It seems to me we need to develop some expertise, indeed, a consensus of whether it is a problem that requires change, and if so, what changes are indicated which are permissible without amending the Constitution and what others can only be achieved by amending the Constitution. I don't think we have the answers to those questions.

Perhaps in the intervening months or year or so that it would take to come up with a report we would also get a little greater historical perspective in seeing what happens with these three cases, whether there is any expectancy at all that there will be other cases in the future, and whether the size of the Federal judiciary will continue to become larger and larger so that the community is so large that we just mathematically have to expect that some people may have to be dealt with through the impeachment process. We don't know the answers to those questions.

I know that I wouldn't feel sanguine about dealing with the subject legislatively without the benefit of some entity that could focus on it.

Are there other questions of Mr. Boyd?

[No response.]

We are delighted to see you again, Mr. Boyd, and have you appear before the subcommittee and we look forward to working with you and your office.

Mr. BOYD. Thank you, Mr. Chairman and members of the committee.

Mr. KASTENMEIER. Our second witness this morning is Frances Kahn Zemans, executive vice president and director of the American Judicature Society. Dr. Zemans serves as chief operating officer of this highly respected national organization which has its headquarters in Chicago, IL, and which is devoted to improving and maintaining the American justice system. In a previous incarnation, Dr. Zemans taught political science at the University of Chicago.

On a personal note, I was honored to be a participant in the 75th anniversary of the society last summer in Toronto, Canada. I am delighted to have the opportunity to get to know the fine work of the American Judicature Society and its executive director.

Dr. Zemans, we are delighted to greet you. We have a copy of your statement. You may proceed as you wish.

STATEMENT OF FRANCES KAHN ZEMANS, EXECUTIVE VICE PRESIDENT, AND DIRECTOR, AMERICAN JUDICATURE SOCIETY Dr. ZEMANS. Thank you, Mr. Chairman.

We are pleased to have the opportunity to appear before you and testify about a topic that is so important to the citizenry, the maintenance of a quality judicial system. This has been the core interest of the American Judicature Society since its founding more than 75 years ago, as just mentioned by the chairman.

Established in 1913 by a small group devoted to improving the administration of justice, the American Judicature Society is an independent national organization of lawyers, judges and, importantly, nonlawyers working together to improve the Nation's courts. With more than 20,000 members nationwide, we are active at both the State and Federal levels through research, publications and educational programs.

I have provided one of the staff members with a packet of information on the American Judicature Society, including a copy of our journal "Judicature" for your information, and I hope you will take the opportunity to become more acquainted with us.

Recognizing that the quality of our justice is to a great extent determined by the quality of our judges, we have long been devoted to attracting the highest quality judges and to maintaining the highest standard of ethical behavior on the bench.

In addition to our interest in the Federal system, our perspectives on judicial discipline have been informed by our long experience and involvement with State judicial conduct organizations. Since 1970 the American Judicature Society has acted as a clearinghouse for State judicial discipline commissions in the 50 States and the District of Columbia.

Our experience in the field has only served to reinforce our belief that a fair and effective judicial discipline system is requisite to the maintenance of the judicial independence that is so important to all of us.

Respect for the judiciary can be sustained only so long as the populace believes that judges act fairly and impartially and that their decisions are consistent with the law. To maintain that legitimacy in the public eye, there must be the perception that there is serious recourse for misconduct if and when it should occur on the bench.

It is also true, however, that judges must feel free to make the tough decisions that our constitutional framework assigns to them. It is not accidental that judges alone among governmental officials were granted life tenure by the Founding Fathers. They understood that if the law is to be upheld, the decisionmakers must be free of the influence of the passions of the moment. It follows that our judges need to be protected from frivolous and unsubstantiated complaints if they are to act freely.

The Federal judicial discipline mechanism has been structured in an effort to achieve a balance between providing appropriate accountability of judicial behavior while at the same time protecting the judicial independence that is so important to all of us.

The Judicial Discipline and Impeachment Reform Act of 1989 seeks to amend selected provisions of title 28 of the U.S. Code relating to judicial discipline. These amendments reflect considered changes deemed appropriate after the experience of implementing the original system. The bill further establishes a commission to examine Federal judicial discipline with primary emphasis on impeachment. The American Judicature Society views both sections of H.R. 1620 as positive efforts to improve the procedures by which we hold Federal judges accountable.

While our evaluation is more fully articulated in my written testimony, I would like to comment briefly on selected provisions.

Title I, section 101(a) allows the chief judge of the circuit to identify complaints without the requirement of a written complaint. Such a modification would make the Federal system consistent with the policy in many States in which discipline bodies are free to open investigations into allegations brought to their attention by whatever means. This is a particularly appropriate modification because it reinforces public confidence in the system by dealing with the kind of legal technicality that so often engenders public skepticism.

Section 101(d) very reasonably accelerates the process for transmitting to the House of Representatives a determination that consideration of impeachment may be warranted in such a case. However, a cautionary note might be appropriate in this context, for it is important to make clear that the standard for judicial discipline is not the same as the standard for a felony conviction. On the basis of certain States' experiences, it may be prudent to include in the report that will accompany this legislation an explicit statement with which we can all agree that acquittal is not equivalent to exoneration. A finding of not guilty in criminal court is not an appropriate standard for judicial office.

Title II of the bill, "National Commission on Judicial Impeachment," contemplates the kind of full examination that is appropriate before we tamper with an institution of government. One aspect of title II merits mention.

With respect to the membership of the proposed commission, while there is the clear implication that it will have a mix of government and nongovernment actors, it is nowhere made explicit in the bill that the commission must include nongovernment office holders. It is important for such a commission to have public participation, not only because it would grant legitimacy to the commission's results, but also because they would bring an important perspective to the work of the commission.

We have also been asked to address H.R. 1930, relating to senior judges. It must be clearly noted that senior judges bear a considerable burden of the caseload of our Federal courts. This is a result of many factors: an increase in Federal legislation; an increase in enforcement in particular areas of the law, such as drug traffic; the burdens placed on the system by the speedy trial act; and the considerable time gap currently required to fill a judicial position once a vacancy occurs on the bench.

Given the general concurrence that senior judges are extremely valuable to the Federal system, then caution is advised in considering the possible diminution of incentives to judges to take on senior status. It was once presumed that a position on the Federal bench would be the pinnacle of one's career. With lifetime appointment, one could choose and usually did choose to stay until retirement. A variety of factors have contributed to more judges leaving the bench mid-career. These include a larger Federal judiciary, appointment of younger lawyers to the bench, appointment of judges to other governmental positions, and, of course, the attractions of the private practice of law.

In addition, there are very severe restrictions on judges' lifestyles that the rest of us do not have to deal with. These include limits on

social relationships, off-bench conduct, and even first amendment rights.

With these forces already at work, we need to be cautious that we do not put in place incentives that will encourage the kind of revolving door in the judiciary about which questions have so often been raised in other branches of government.

Let me reiterate, Mr. Chairman, that the American Judicature Society very much appreciates the invitation to appear before the subcommittee. Rest assured that we will be happy to provide whatever assistance you may wish if you believe that we can be helpful in the future.

I will, of course, be pleased to respond to any questions you may have. Thank you.

Mr. KASTENMEIER. Thank you very much, Dr. Zemans.

[The prepared statement with attachment of Dr. Zemans follows:]

PREPARED STATEMENT OF FRANCES KAHN ZEMANS, EXECUTIVE VICE PRESIDENT, AMERICAN JUDICATURE SOCIETY

The American Judicature Society is pleased to have the opportunity to appear before you and testify about a topic that is so important to the citizenry the maintenance of a quality judicial system. This has been the core interest of the American Judicature Society since its founding more than 75 years ago. In addition, beyond my role with AJS, I have had the privilege of serving by gubernatorial appointment on the Illinois Judicial Inquiry Board.

Established in 1913 by a small group devoted to improving the administration of justice, the American Judicature Society is an independent national organization of lawyers, judges and nonlawyers working together to improve the nation's courts. With more than 20,000 members nationwide, we are active at both the state and federal levels through research, publications and educational programs. Recognizing that the quality of our justice is to a great extent determined by the quality of our judges, we have long been devoted to attracting the highest quality judges and to maintaining the highest standard of ethical behavior on the bench.

system, our

In addition to our interest in the federal perspectives on judicial discipline have been informed by our long experience and involvement with state judicial conduct organizations. Since 1970, the American Judicature Society has acted as a clearinghouse for state judicial discipline commissions in the 50 states and the District of Columbia. Among the publications of our Center for Judicial Conduct Organizations is