chief litigant in the courts-over drafts of proposed legislation. I understand this practice has been common in recent years. The question of the propriety of this course of action was never really answered; so we shall pursue it again today.

I think we should also ask whether there is any statutory basis for the Judicial Conference's most recent innovation; that it, issuing advisory opinions on questions of judicial ethics.

We must also seek to determine whether the Judicial Conference truly represents the Federal judiciary. We know that it purports to do so. But at our April hearings, we were told by respected Federal judges that they learn of actions taken by the Conference only by reading the newspapers, or receiving official reports weeks or months later. In at least some instances, members of the conference apparently do not consult with their colleagues before adopting positions.

I think we should also continue our inquiry into the actual operations of the Judicial Conference, and ask again whether the Conference should allow minority reports to be printed in its record when there is disagreement among Conference members. As the Conference's rules of procedure now stand-and they seem to be very tentative rules-dissent goes unheard.

I again want to ask why the Judicial Conference should not open its full sessions to the public and press. At our April hearings. Judge Lumbard, who represented the Conference, said that public meetings might be appropriate under certain circumstances. But he argued that since congressional committees sometimes meet in executive session, the Judicial Conference often has a need for secrecy.

To the extent that committees of the Judicial Conference might occasionally need to meet in secret, I think the analogy between the Conference and the Congress is valid-but no farther than that. It seems to me that when debate begins in the full Conference, when the Conference committees issue their reports to the full body, and the Conference proceeds to take action, the sessions should be open. In conducting this hearing, all should bear in mind one point which was raised by Judge Lumbard; more often than not, members of the Judicial Conference are encouraged to try to influence the legislative process by congressional committees which ask the Conference for its opinion on bills. As Judge Lumbard said, the Conference members try to be helpful. And I understand that often, the criterion for deciding whether a given resolution is proper is not whether it is within the Conference's jurisdiction, but whether it would be impolite to turn down a request by a committee. I believe that a good deal of the problem lies with Congress, itself, which often indiscriminately asks for opinions on various pieces of legislation.

If we learned one thing from our April hearings, it is that the powers of the Judicial Conference are obscure. The same is true of the circuit councils, which some witnesses view as housekeeping and others as virtual free agents within the circuits.

When these hearings began, I said that one important job of the subcommittee is to learn how the present agents of judicial controlthe Judicial Conference and the circuit councils-have exercised their

statutory authority. I said this because there are now more than two dozen bills to discipline Federal judges before the Congress, and many of them would strengthen the Conference or the circuit councils in some way.

Before we grant any more power to either the Conference or the circuits, we should determine how they have handled the power which they already possess.

There is an obvious connection between the workings of the Judicial Conference and the circuit councils and the independence of Federal judges. To the extent that a Federal judge can be coerced into taking a given action, his independence is reduced. And this is not a simple question, because as Senator Mathias observed in April, we must always balance judicial independence against the need for efficient court procedures. We cannot allow the Federal courts to become so disorganized that they break down-not even in the name of judicial independence.

But I think many of the two dozen bills which are before the Congress would reduce judicial independence without promoting efficiency in the courts. They appear to be largely the product of the over-publicity which has been given to a few, isolated mistakes in the courts. These few controversies seem to have been magnified in the public imagination to the point that they have become a socalled "crisis in confidence" for our judicial system.

There is one particular kind of bill before the Congress which I believe epitomizes the conflict over judicial independence. This type of bill would, in one way or another, make it possible to remove Federal judges from office without impeachment by the Congress. One version of this kind of bill, S. 1506, has recently received the endorsement of the American Bar Association's House of Delegates and of the Department of Justice. I understand that the Judicial Conference now has this bill under consideration and that it is experiencing some disagreement over its constitutionality. In the past, the Conference has approved in principle other, similar bills to remove Federal judges from cases while leaving them the vestiges of office in the form of their salaries. S. 1506, and others like it, would remove the Federal judge completely.

S. 1506 would also entail practical problems which I hope we can discuss today and tomorrow with the members of the Judicial Conference who will be with us. This bill would establish a national Commission on Judicial Disabilities and Tenure empowered to remove judges. This commission would be appointed by the Chief Justice. Its decisions would be appealed to the Judicial Conference, presided over by the Chief Justice. And the Judicial Conference's decisions would be appealed to the Supreme Court, presided over by the same man, the Chief Justice. I think we should discuss the implications of this arrangement for due process, and I hope that our witnesses will see fit to discuss such bills here today.

I am pleased to welcome as witnesses today and tomorrow Judge David L. Bazelon, chief judge, District of Columbia Circuit, U.S. Court of Appeals: Hon. William F. Rehnquist, Asssistant Attorney General; Judge Bailey Aldrich, chief judge, First Circuit, U.S. Court of Appeals; Peter G. Fish, assistant professor of the Depart

ment of Political Science, Duke University; and Prof. Preble Stolz, School of Law, University of California, Berkeley.

I am also pleased that our consultants have consented to assist us in our inquiry today, and would like to welcome them: Prof. Philip B. Kurland, of the University of Chicago Law School, the subcommittee's chief consultant; Prof. Alexander M. Bickel, of Yale University Law School; Prof. Ralph K. Winter, Jr., of Yale University Law School; and Prof. Arthur S. Miller, of the George Washington University Law Center.

Judge, I am delighted to welcome you to the subcommittee and to express our appreciation for your willingness to come to testify on the very interesting and intriguing question we are considering.

STATEMENT OF HON. DAVID L. BAZELON, CHIEF JUDGE, DISTRICT OF COLUMBIA CIRCUIT, U.S. COURT OF APPEALS, WASHINGTON, D.C.

Judge BAZELON. I am glad to be here, sir, and I thank you for the privilege.

I do not have a statement because I know that your interest is wide-ranging, and I would be glad to answer any questions I possibly

can.

Senator ERVIN. I think it would perhaps be better if you just make an oral statement and then we will ask questions.

Judge BAZELON. I understand that you are interested in the operation of the Judicial Conference of the United States.

I have been on the Bench for some 20 years. I have been a member of the Judicial Conference for about 8 years. When I became a member of the Conference, the practice was to have the committees of the Conference consider legislation and make recommendations to the Conference, which in turn made recommendations to the Congress. It was never questioned at that time. Going back into legislative history, I suppose the justification was the amendment in 1948.

But in any event, it was not questioned. As a matter of fact, I do remember a discussion--I forget the year now-in which we talked about the problem of recommending to the Conference that it communicate to the Congress about matters which Congress had not referred to the Conference. I don't think we came to any firm conclusions about it. I think it was an irregular practice after that. but when a committee ran into some matter we thought would be helpful, it made the recommendation.

Senator ERVIN. The subcommittee is interested in the question of whether or not the invitation to submit recommendations under section 331, title 28, is confined to the matters specifically enumerated rather than asking the general recommendation on all things of the subject of congressional legislation. For example, Judge Lumbardhe may not have so intended-took the position that the Judicial Council is authorized under the provision of this section to make recommendation even about what the tariff ought to be on Paris imports.

Judge BAZELON. Well, Senator, you know how judges can read statutes, and I am sure, as you also know, there are arguments on both sides. But I think if the Congress wanted to restrict it, it should do

The fact of the matter is that it has now become the practice for the Conference to do the kind of thing that apparently is objected to in some quarters, probably in this quarter. But if I understand your remarks correctly, you would certainly want the Conference to at least deal with matters of housekeeping and administration.

Senator ERVIN. Yes, I think there is no question about that, because it says that the Conference should make a complete survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary and shall submit suggestions to the various courts in the interest of uniform and expeditious business, and also it says that the Conference shall carry on continuous study of the operation and effect of the general rules of practice and procedure now hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. It provides that such changes in, and addition to, these rules as the Conference may deem desirable to promote simplicity and proceed to fairness of administration, the just determination of litigation, and elimination of unjustifiable expenses, shall be recommended from the Conference from time to time to the Supreme Court for its consideration of a determination, modification, or rejection in accordance with law. That seems to be the limited express powers given.

I will have to admit that from personal experience I know that legislative bodies sometimes pass some statutes that place any judge in a quandry to interpret them.

Judge BAZELON. I won't comment further on that.

I think there are areas which are very difficult-I mean between administration and housekeeping on the one hand and substantive matters on the other. For example, in regards to so-called wiretapping legislation, I would think that you would want some expression from the courts as to what role they should play; in other words, just how judges should be approached and what judges should be approached for authorizing wiretapping or enforcing it.

Now, I can understand that you would not want them to go further and talk about whether or not it is consitutional.

Senator ERVIN. I would be glad to hear anything you desire to say in this general field.

Judge BAZELON. Well, take for instance a matter no closer to judicial administration-or at least in the twilight zone-than the little business of legal representation of indigents in court. Nobody has objected to the leading role the Judicial Conference has taken with respect to the representation of the indigent in criminal cases. I don't see the difference between that and the representation of indigents in civil litigation. Now, both of those things have to do with the official administration of the courts. We have people coming in with probate petitions. We have all kinds of problems."

Senator ERVIN. Judge, we had some testimony here about the action of the Judicial Conference with respect to what was called the

Murphy amendment to the poverty bill, and if you wish to, I would be glad to have you shed any light on that matter that you care to.

Judge BAZELON. Yes. The Murphy amendment, I think was passed by the Senate sometime in the middle of October 1969; I learned about it and the text of it some 10 days later, I forget which 10 or 12 days.

I then wrote a letter to the Chief Justice. The letter is dated October 30, 1969. The Judicial Conference was to take place October 31 and November 1. I sent this letter-and I have a copy of it

it.

Senator ERVIN. With your consent I will be glad to insert a copy of

Judge BAZELON. Do you want me to read it, sir?

Senator ERVIN. You may.

Judge BAZELON (reading).

MY DEAR MR. CHIEF JUSTICE: I believe the Judicial Conference, at our present meeting, should discuss one of the amendments to S. 3016 (currently pending in the House) with the view toward expressing our approval or disapproval thereof. The amendment would give the Governor of each State an item veto over legal services programs in his State. It would also remove the power of the Director of the Office of Economic Opportunity to override the Governor's veto.

It seems to me that an expression of opinion by the Conference on this amendment would be proper. The Federal courts are authorized to appoint counsel for indigents in civil as well as criminal cases, 28 U.S.C. § 1915(d), and we have in the past expressed our opinions on bills that would affect the availability of free counsel in criminal cases. See, for example, pages 71-73 of the report of the September 1968 meeting of the Conference. Particularly in view of the effect this amendment would have upon the business of the local Federal courts, I see no reason to distinguish between civil and criminal cases for the purpose of deciding whether it is proper for the Conference to express an opinion on the matter.

Of course, I realize that normally any such matter would be referred to committee for study before the views of the full Conference were sought, and I apologize for not having raised the question sooner. But the amendment was not introduced until October 14, and its text has just come to my attention. Nevertheless, it has passed the Senate and is pending before the House Education and Labor Committee. If we were to wait for a committee report and the next meeting of the Conference, the amendment by that time would probably have either passed or failed.

In view of the amendment's potential impact upon the administration of civil justice in the Federal courts the Board of Governors of the American Bar Association has already called it an oppressive interference with the freedom of the lawyer and the citizen.

I think it is necessary and appropriate that we consider the matter at our present meeting. I enclose a copy of the amendment and I would appreciate if you would find it possible to bring this to the attention of the Conference.

Pursuant to that, the Chief Justice was good enough to circulate this and it appeared in everybody's folder when they came to the Conference during the first day. During the course of that day many of the judges came up and asked me about it and we talked about it. Toward the end of the second day, when new business was called for, this matter came up. There wasn't a dissenting vote. It was unanimously approved.

I know that Judge Lumbard had forgotten it and I can certainly understand it, because he was testifying here 6 months later, and I am sure that that had just slipped his mind.

Senator ERVIN. I can tell a story that illustrates the difficulties of interpretation of statutes and also of wills. I had the privilege to