JUDICIAL DISQUALIFICATION

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SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, 

AND THE ADMINISTRATION OF JUSTICE

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OF TH E

COMMITTEE ON TH E JU DI CIAR Y 

HOUSE OF REPR ESEN TATIVES

NIN ETY-TH IRD CONGRESS

SECOND SESSION

ON

S. 1064

TO BROADEN AND CLARIFY THE GROUNDS FOR 

JUDICIA L DISQUALIFICATION

MAY 24, 1974

SERIAL NO. 39

Printed for the use of the Committee on the Ju dic iary

35-669

U.S. GOV ERNMEN T PRINTING OFFICE

WASHINGTON : 1974
I* Ct »

COMMITTEE ON TH E JUDICIARY

PETER W. RODINO, 

HAROLD D. DONOHUE, Massachusetts 

JACK BROOKS, Texas

ROBERT W. KASTENMEIER, Wisconsin 

DON EDWARDS, California 

WILLIAM L. HUNGATE, Missouri 

JOHN CONYERS, J r., Michigan 

JOSHUA EILBERG, Pennsylvania 

JEROME R. WALDIB, California 

WALTER FLOWERS, Alabama 

JAMES R. MANN, South Carolina 

PAUL S. SARBANES, Maryland 

JOHN F. SEIBERLING, Ohio 

GEORGE E. DANIELSON, California 

ROBERT F. DRINAN, Massachusetts 

CHARLES B. RANGEL, New York 

BARBARA JORDAN, Texas 

RAY THORNTON, Arkansas 

ELIZABETH HOLTZMAN, New York 

WAYNE OWENS, Utah 

EDWARD MEZVINSKY, Iowa

J r., New Jersey, Chairman

EDWARD HUTCHINSON, Michigan 

ROBERT McCLORY, Illinois 

HENRY P. SMITH III, New York 

CHARLES W. SANDMAN, Jr., New Jersey 

TOM RAILSBACK, Illinois 

CHARLES E. WIGGINS, California 

DAVID W. DENNIS, Indiana 

HAMILTON F ISH, Jr., New York 

WILEY MAYNE, Iowa

LAWRENCE J. HOGAN, Maryland 

WTLLIAM J. KEATING, Ohio 

M. CALDWELL BUTLER, Virginia 

WILLIAM S. COHEN, Maine 

TRENT LOTT, Mississippi 

HAROLD V. FROEHLICH, Wisconsin 

CARLOS J. MOORHEAD, C alifornia 

JOSEPH J. MARAZITI, New Jersey

J erome M. Zeifman, General Counsel

Garner J. Cline, Associate General Counsel

Herbert F uch s, Counsel

Herbert E. Hoffman, Counsel

William P. Shattuck, Counsel

H. Christopher Nolde, Counsel 

Alan A. P arker, Counsel

J ames F. Falco, Counsel

Maurice A. Barboza, Counsel

Franklin G. P olk, Counsel

Thomas E. Mooney, Counsel

Michael W. Blommer, Counsel

Alexander B. Cook, Counsel

Constantine J. Gekas. Associate Counsel

Alan F. Coffey, Counsel

Subcommittee on Courts, Civil Liber ties, and th e Admin istration of

J ust ice

ROBERT W. KASTENMEIER. Wisconsin. Chairman

GEORGE E. DANIELSON, California 

ROBERT F. DRINAN, Massachusetts 

WAYNE OWENS, Utah

EDWARD MEZVINSKY, Iowa

TOM RAILSBACK, Illinois 

HENRY P. SMITH III, New York 

CHARLES W. SANDMAN, J r., New Jersey 

WTLLIAM S. COHEN, Maine

Herbert F uc hs, Counsel

William P. Dixon, Counsel

Thomas E. Mooney, Associate Counsel

Bruce A. Lehman, Counsel

(H)
C O N T E N T S

Pane

Text of S. 10G4_______________ __________________________________ 1

Testimony of—

Fran k, Joh n P., Esq., attorney at law, Phoenix, Ariz______________ 8

Traynor, Hon. Roger J., form er chief justice, California Supreme 

Court, Cha irman of ABA Special Committee on Standa rds of 

Judicial Con duc t; accompanied by Joh n P. Fra nk, Esq., atto rne y

at law, Phoenix, Ariz _______________________________________ 3

Additional inform atio n—

Let ter dated April 4, 1974, from Hon. W. Vincent Rak estraw, 

Assistant Attorney General, Departm ent of Justice , to Hon. Peter 

W. Rodino, Jr., chairman, House Committee on the Jud iciary _____ 21

Letter dated May 23, 1974, from Hon. Rowland F. Kirks, Director, Admin istr ative Office of the U.S. Courts, to Hon. Peter W. Rodino, 

chairman, House Committee on the Judiciary__________________ 22

Frank, John P., Esq., prepared statem ent from Senate hea ring _____ 10

Traynor, Hon. Roger J., prepared statement from Senate hearing ___ 7

(in)

JUDICIAL DISQUALIFICATIONS

FR ID AY, MA Y 24 , 197 4

H ouse of Representatives, Subcommittee on

Courts, Civil, Libertie s, and th e Administra tion of

J ustice of ti ie Committee on th e J udiciary,

Washin gto n, D.G.

The subcommittee met at 10:15 a.m., pu rsua nt to notice, in room 

2218 Ra yb urn House Office Bu ild ing , the Ho no rab le Robert AV. K as ­

ten meie r (ch air man) presiding.

Pres ent: Representatives Kastenmeier (presiding), and Cohen.

Also present: Herbert Fuchs and Bruce A. Lehman, counsel; and 

Thomas E. Mooney, associate counsel.

Mr. Kastenmeier. The hearings will come to order.

The Subcommittee on Courts, Civil Liberties, and the Administration of Justice of th e Comm itte e on the Ju di ci ar y, has convened to 

hear testimony on two measures. The first of these is S. 1064, a bill to 

improve judicial machinery by amending title 28 of the United States 

Code to broaden and clar ify grounds for judicial disqualification. This 

bill passed the Senate on October 4, 1973. It would amend section 455 

of title 28, United States Code, by making the statutory grounds for 

disqualification of a judge in a particular case conform generally with 

the recently adopted Canon, of the Code of Judicial Conduct, which 

relates to disqualification of judges for bias, prejudice or conflict of 

interest. To do this the bill amends section 455, title 28, which states 

the circumstances in which a Federal judge must disqualify himself 

from consideration of a case before his court. Under section 455 a 

judge must disqualify himself in four instances: One, when he has a 

substantial interest in any case; two, when he has been of counsel in 

any case; three, when he has been a material witness in any case or, 

four, when he is so related to or connected with any party or his at ­

torney as to render it improper in his opinion for him to sit on a 

proceeding.

The subcommittee is advised tha t provisions of section 455 differ 

from those of the American Bar Association’s Canon of Judicial 

Ethics.

Obviously it is undesirable to have our judicial officers subject to 

conflicting behavior requirements. Wh at is more, we must strive for 

the clearest and simplest formulation if the judicial branch is to 

operate at the highest ethical level. S. 1064 will be placed in the 

record a t this point.

[S. 1064, 93d Cong., first sess.]

AN AC T To im prov e ju di ci al m ac hi ne ry by am en di ng ti tl e 2S. Uni ted S ta te s Code, to

broaden and clarify the grounds for judicial disqualification

Be it enacted by the Senate and House of Representatives of the United States

(1)
2

of America in Congress assembled, Th at section 453 of title 28, United States 

Code, Is amended to read as follow s:

“8 455. Disqualification of justice or judge

“ (a) Any justice, Judge, or magistrate of the United States shall disqualify 

himself in any proceeding in which his impartiality might reaso nably be 

questioned.

“ (b) He shall also disqualify himself in the following circumstances:

“ (1) where he has a personal bias or prejudice concerning a par ty, or 

personal knowledge of disputed evidentiary fac ts concerning the proceeding;

“(2) where in private practice he served as la wye r in the ma tter in controversy, or a lawy er with whom he previously practiced law served during such 

association as a lawyer concerning the matter, or the judge or such lawyer 

has been a m ate rial witness concerning i t ;

“ (3) Where he has served in governmental employment and in such 

capacity participate d as counsel, adviser or material witness concerning the 

proceeding or expressed an opinion concerning the me rits of the particular 

case in co ntrove rsy;

“ (4) He knows th at he, individually or as a fiduciary, or his spouse or 

mino r child residing in his household, has a financial int ere st in the subject 

ma tter in controversy or in a party to the proceeding, or any other intere st 

th at could be substantially affected by the outcome of the p roce eding;

“ (5) He or his spouse, or a person within the third degree of relationship 

to either of them, or the spouse of such a person :

“ (i) Is a party to the proceeding, or an officer, director, or trustee of 

a part y;

“ (ii) Is acting as a lawyer in the proceeding;

“(iii) Is known by the judge to have an int ere st th at could be substantially affected by the outcome of th e proce eding;

“ (iv) Is to the judge’s knowledge likely to be a ma terial witness in 

the proceeding.

"( c) A judge should inform himself about his personal and fiduciary financial 

interests, and make a reasonable effort to inform himself about the personal 

financial inte rests of his spouse and minor children residing in his household.

“ (d) Fo r the purposes of thi s section the following words or phrases shall have 

the meaning ind ica ted :

“ (1) ‘proceeding’ includes pretria l, trial, appellate review, or other stages 

of lit igation;

“ (2) the degree of relationship is calcu lated according to the civil law 

syste m;

“ (3) ‘fiduciary’ includes such relationships as executor, adm inistrator, 

trustee, and gu ar dian ;

“ (4) ‘financial int ere st’ means ownership of a legal or equitable interest, 

however small, or a relationship a s director, adviser, or o ther active p articipant in the affairs of a party, except t h a t:

“ (i) Ownership in a mutual or common investm ent fund th at holds 

securities Is not a ‘financial intere st’ in such securities unless the judge 

participate s in the management of the fund ;

“ (ii) An office in an educational, religious, charitable, fra ternal, or 

civic organizatio n is not a ‘financial int ere st’ in securities held by the 

org aniza tion;

“ (iii) The pro prie tary interest of a policyholder in a mutual insurance 

company, of a depositor in a mutual savings association, or a sim ilar 

pro prie tary inte rest, is a ‘financial inter est’ in the organization only if 

the outcome of the proceeding could sub stantially affect the value of the 

intere st;

“(iv) Ownership of government secu rities is a ‘financial intere st’ in 

the issuer only if the outcome of the proceeding could sub stan tially 

affect the value of the securities.

“ (e) No justice, judge, or ma gistrate shall accept from the par ties to the proceeding a waiv er of any ground for disqualification enumerated in subsection 

(b ). Where the ground for disqualification arises only under subsection (a ), 

waiver may be accepted provided it is preceded by a full disclosure on the record 

of the basis fo r disqualification.”

Sec. 2. Item 455 in the ana lysis of cha pter 21 of such title 28 is amended to 

read as follows: “Disqualification of justice or jud ge.”.
3

Sec. 3. This Act shall not apply to the tri al of any proceeding commenced prior to the date of thi s Act, nor to appellate review of any proceeding which was 

fully subm itted to the reviewing court prior to the d ate of this Act.

Passed the Senate October 4,1973.

Attes t: Francis R. Valeo,

Secretary.

Mr. Kastenmeier. The subcommittee is honored to have with it this 

morning the Honorable Roger ,J. Traynor, former Chief Justice, Ca lifornia Supreme Court, chairman of ABA Special Committee on 

Standards of Judicial Conduct; and also Jo hn P. Fran k, attorney at law, Phoenix, Ariz., whose competence in this particula r field is nationally appreciated. Gentlemen, you are both welcome, and you may proceed as you 

will.

TESTIMONY OF HON. ROGER J. TRAYNOR, FORMER CHIEF JU STICE,

CALIFORNIA S UPREME COURT; C HA IRMA N OF ABA SPEC IAL COMMITTEE ON STANDARDS OF JU DI CIAL CONDUCT; ACCOMPANIED

BY JOHN P. FRAN K, ESQ., ATTORNEY AT LAW, P HOENIX, ARIZ.

Judge Traynor. T hank you, Mr. Chairman. We do appreciate, with 

all your work now’, and the pressure you are under, your giving us 

this opportunity to express our views on this bill. A crucial issue in which the present statu tes differ from the Code 

of Judicial Conduct is on the disqualification for financial interest.

Under the present statutes a judge is disqualified only if he has a 

substantial interest. Th at raises a number of questions as to what is 

substantial, depending upon the subjective judgment of the judge. 

We felt that those dilHcult questions would be removed by what a p­ pears to be a Draconian rule, but it seems to us the only effective rule, 

and would be in line with Tumey against Ohio and another case 

decided recently, that maybe a judge with an interest participating 

no matter how small his interest is, might raise a question of due 

process of law. The other provision of the existing statutes th at is inconsistent w ith 

the Code of Judicial Conduct is a duty under the statutes to sit if he 

is not technically disqualified. We thought it would be more effective 

and better practice to have the disqualification as mentioned on the 

very first page of the bill here. He should disqualify himself in any 

proceeding in which his impartiality might reasonably be questioned. 

Those are the two discrepancies tha t we think call aloud for 

conformity. As you said in vour statement, Mr. Chairman, it is unseemly to 

have the Code of Judicial conduct, which has been adopted by the 

U.S. Judicial Conference, and the statutes in conflict. For those two 

reasons we think it is important to have this bill, S. 10G4, adopted.

We had several hearings on the matter tha t the American Bar 

committee held. We heard Senator Bayh in St. Louis. Then we had 

a hearing at the Burdick committee. They are all reported there, and 

we would respectfully suggest th at we would like to incorporate tha t 

in your proceedings, if that is agreeable to you. I thin k this statement, 

the report, of the Senate committee, is an excellent statement, a summary of the discrepancies and reasons for change. I think that is a very 

good statement.
4

Mr. Kastenmeier. W ithout objection, your statement as it appears 

before the Senate committee will be incorporated in our proceeding.

[Jud ge Traynor's statement from the Senate hearings follows:]

Statement of Rogeb J. Traynor, Chi ef J ustice of California, Retired, 

Vis it in g P ro fe ssor of L aw, College of L a w , Univ ersi ty of Uta h

Mr. Chairman and members of the Committee, I very much app reciate your 

invitat ion to testify today on the imp ortant subject of Jud icia l Disqualification. Professor Thode and I also appreciate the suggestions of Chief Counsel 

Westphal as to the division of effort between us th at would be most helpful to 

the Committee, namely, that I “give broad testim ony, commenting upon the necessity of insu ring public confidence in the judicia ry, th e function of canons or 

rules in guiding jud icial conduct, the relative adv antage s or disadvantages of 

general as compared to si>ecific langua ge;” that I “also comment on particular 

problems such as what the policy should be on investments by a judge, and 

what are the problems involved on the waiv er problem involved in Canon 3D. 

This would then leave to Professor Thode a discussion of the language finally 

adopted by the ABA Committee. He could point out the instanc es where a general proscription was decided upon, and th at more specific prohibitio ns were 

made, and the reasoning behind each of the se.” We propose to follow as best 

we can the se most helpful suggestions of your Chief Counsel.

In 1904 Lewis F. Powell, Jr., then president of the American Bar Association, proi>osed to the Association’s House of Delegates th at it underta ke a reexam ination of the ethical standa rds applicable to lawyers and also to judges. 

The House of Delegates accepted his proposal. The first project und ertaken involved the law yers’ standa rds, and the res ult was the Code of Professional Re ­

sponsibility, adopted by the House of Delegates of the Association in 19(59 and 

now in force in most of the states. The Association then turned its attention 

to the Canons of Jud icial Ethics, which had not undergone sub stantial reexamination or revision since its adoption by the Association in 1924. In August 

1969 Preside nt Berna rd Segal of the American Bar Association appointed the 

Special Committee on Standard s of Judicia l Conduct to consider changes in 

the Canons of Jud icial Eth ics th at were prom ulgated a half-century ago.

Three outstan ding federal judges are members of the Special Comm itte e: 

Associate Justice Po tte r Stewart of the Supreme Court of the United St ates; 

Judg e Irving R. Kau fma n of the United Sta tes Court of Appeals for the Second Circuit; and Jud ge Edw ard T. Gignoux, United States Distric t Judge for 

the Sta te of Maine. The thr ee distin guished and presently active sta te judges 

on the Committee ar e Justice Jam es K. Groves of the Supreme Court of Colorado, Ivan Lee Holt, Jr., a Missouri tri al court judge, and George II. Revelle, 

a trial court judg e of the Sta te of Washington. At the time of my appointment 

as Chairman of the Committee I was Chief Justice of California. The six outstanding lawyer-members of the Committee are Vice-Chairman, Whitney North 

Seymour of New York City, William L. Marbury of Baltimore, Maryland, E. 

Dixie Beggs of Pensacola, Florida, Wa lter P. Armstrong, Jr., of Memphis, Tennessee, Edward L. Wright of Little Rock, Arkansas, and W. O. Shafe r of 

Odessa, Texas. The Committee includes a law professor and form er Jus tice of 

the Supreme Court of Arkansas, Robert A. Lefla r of the University of Ark ansas Law School. Profess or Leflar is not alone in representing the law teach ing 

profession. The Committee also relies heavily on the scholarship and dedicated 

services of two oth er noted law professors—E. Wayne Thode of the University 

of Utah College of Law. as Reporter, and Geoffrey C. Hazard, Jr., of Yale 

Law School, as Consultant.

Since October, 1969, the Special Committee has held eleven meetings averaging 

two days each, and the re have been many sub-committee meetings. The Committee meetings have been held on S aturda ys and Sundays to achieve maximum 

attendance. Absenteeism has averaged about one Committee member per meeting, a remarkable record. Several members have not missed a meeting. You 

probably are aware that the Committee members serve without compensation, 

but you may not realize that the ir per diem allowance does not cover all their 

expenses.

After sub stantial resea rch into the law and the facts relatin g to judges’ a ctivities and with the aid of suggestions from the Bench, Bar, legal educators, and 

inte rested laymen, the Committee issued an Interim Report in .Tune 3970. The 

Committee made no attem pt at tha t time to present a complete d raft of a Code of 

Jud icia l Conduct. The Report consisted of a statem ent of basic principles and
was designed to acq uaint the legal profession and the public with the progress 

of the Committee's work to t hat date a nd to stimula te constructive criticisms and suggestions. The Committee distributed the Rep ort to 14,000 persons, inviting comments a nd suggestions. Over 500 suggestions were received in writing and at two public hearings. All suggestions were considered, and many were incor­ porated into the Tenta tive Draft of Canons o f Judicial Ethics, which was widely distrib uted in May 1971. The Committee again invited suggestions and criticisms and received more tha n 500 suggestions from many individuals, from 27 committees of bar associations and other groups,1

 as well as periodic reports from 

seve ral special committees of judicial orga niza tions.2

 The Committee considered 

all suggestions and adopted many of them in the process of refining th e T entativ e 

Draft. The product is the Proponed, Fina l Dr aft of the Code of Judicial Conduct,

a copy of which is attach ed as Appendix A. At its very first m eeting the Committee emphasized t he necessity of preserving the independence and int egrity of the jud iciary and the importance of judicia l participation in the formulation and enforcem ent of sta ndard s of judicial conduct. Canon one artic ula tes th is basic p rem ise : An independent and honorable jud iciary is indispensable to justice in our society. A judg e should partic ipate in estab lishing, maintaining, and enforcing, and should himself observe, high sta ndard s of conduct so th at the inte grity and independence of the jud ici ary may be preserved. The provisions of this Code should be construed and applied to fu rth er th at objective. Canon 3A(1) implements this premise by the provision that “a judge should be unswayed by pa rti san inte rests, public clamor, or fear of criticism.” An independent and honorable jud iciary is an indispensable condition of jus­ tice in our society. It is not enough th at people have confidence in the stur di­ ness of judicia l proce dures. They must have utmost confidence in the inte grity of the ir judges. The basic purpose of the Code of Jud icial Conduct is to assure th at judges will be worth y of th at independence and deserving of tha t confidence. To th at end Canon 2 of the Code prov ides th at “A judge should avoid impro­ priety and the app earance of impropriety in all his activities,” and subsections 

A and B of that canon p rovide : A. A judge should respect and comply with the law and should conduct him­ self at all times in a manne r that promotes public confidence in the integr ity 

and impar tiality of the judiciary. B. A judg e should not allow his family, social, or other relationships to in­ fluence his judicia l conduct or judgm ent. He should not lend the prestige of his office to advance the private intere sts of oth er s; nor should he convey or permit others to convey the impression th at they are in a special position to 

Influence him. . . . This canon is implemented by a comm entary th at provid es: Public confi­ dence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scru tiny. He must therefo re accept restrictions on his conduct th at m ight be viewed as burdensome by the o rdinary 

citizen and should do so freely and willingly.

1

 Association of American Law Schools, ABA Ethics A Professional Responsibility Com­ mittee, Alameda Bar Association, Association of the Bar of the City of New York, Cali­ fornia State Bar. Colorado Bar Association, Conference of California Judges, Chicago Bar Association, Delaware Sta te Bar Association, Florida Bar Association, Illinois State Bar Association, Indi anapolis Bar Association, Law Enforcement Assistance Admin istra­ tion, Louisiana Sta te Bar Association. Massachu setts Bar Association, Milwaukee Ba r Association, National Association of Attorney s General, National Conference of State Trial Judges, National Legal Aid & Defender Association, New York State Bar Association, Pennsylvania Conference of State Trial Judges, San Francisco Bar Association, Sea ttle- King County Bar Association, Tulsa Bar Association, U.S. Army Judiciary, Washington State Bar Association, and Wisconsin State Bar Association. Although each of the 27 o rganizations listed above responded to the Committee’s requ est for suggestions and criticisms relatin g to the Ten tative Draft, I thin k it is fa ir to say th at 

each organization generally supported that draft. 2

 Special Committee on Judicial Standa rds of the Jud icial Adm inistration Section of the ABA, Judge Eugene A. Wright, Ch air ma n: Committee on Judicial Ethics of the National Conference of Sta te Trial Judges, Judge Warren P. Cunningham, Cha irm an ; Committee on Standa rds of Judicial Conduct of the North American Judges Association. Judge Joseph A. Zingales. Chairman; Special Committee on Judicial Ethics, National Council of Juvenile Cou rt Judges, Judge William S. Fo rt. Chairma n; Committee on Judicial Ethics of the Appellate Judges’ Conference, Jus tice William A. Grimes, Chairma n ; Committee on Judicial Conduct of the Nationa l Conference of Special Court Judges, Jud ge James A. Noe, succeeded by Judge J. M. Kelly, Chairman ; and the Committee on Jud icial Ethics of the Association of Supreme Court Justices of the Sta te of New York, Justi ce James O. Moore, Chairman. In addition, numerous other committees of lawyers and judg es gave the Committee the benefit of the ir views with regard to the Interim Report and the 

Ten tativ e Draft.

35-669—74----- 2
0

Early in its deliberations the Committee decided th at its function was not to 

subm it a second edition of the Ten Commandments or an ann otated edition of 

the Seven Deadly Sins. It endeavored to avoid pious truisms and rhetorical ornam enta tions a nd to keep hortatory expressions to a minimum.

Although the faithful performance of the duties of a judge depends largely 

on h is own conscience, prescribed rules of judicial ethics can require observance 

of proper standard s and provide specific definition of his responsibilities to 

supp ort and guide him on questions of proper judicial conduct th at may be 

subject to differing views.

Generalization is necessary in any code, but concreteness and specificity 

should be employed wherever feasible. Thus Canon 3C begins with a general 

sta ndard requ iring disqualification if the judge’s “impar tiality might reasonably be questioned” and then sets a series of specific stan dards for disqualification based on relational, financial, and other grounds. These specific standard s 

present concrete answers to many disqualification problems.

The Committee set forth a general minimum ethical sta ndard in each are a 

covered by the Code and then endeavored to insure that specific applications 

did not fall below th at minimum. In setting the minimum sta nd ard for judges 

thro ughout the country, however, realistic considerations had to be kept in 

mind.

Although the Committee realized that it would be futile to set Draconian 

standard s th at could not be obeyed in many are as in the country, it deemed it 

essential to set a minimum sta ndard applicable to all are as until such time as 

it is feasible to prescribe a higher sta ndard for all areas. Two examples illustra te the Committee’s resolution of this problem.

The first example relates to the political activities of judges and cand idate s 

for elective judicial office. The Committee recognized th at the ethical standa rds 

of impartiali ty and the appeara nce of impartia lity may be incompatible with 

the practical political necessities involved in being elected to judicia l office. 

The Committee also recognized th at thou sands of judges are elected to office 

and th at the elective system will not change soon. In Canon 7 the Committee 

endeavored not only to set minimum standa rds, but also to upgrade the standards for campaigns for elective judicial offices.

The second example rela tes tq the business activities of judges. Canon 5C (1) 

and (2) set the upgraded sta ndard s the Committee believes th at ultim ately 

every full time judge should be requ ired to m ee t:

(1) A judge should refrain from financial and business dealings that tend to 

reflect adve rsely on his impar tiality , interfere with the proper performance of 

his judicial duties, exploit his judicia l position, or involve him in freq uent 

transa ctions with lawyers or persons likely to come before the court on which 

he serves.

(2) Subject to the requirem ents of subsection (1), a judge may hold and 

manage investments, including rea l estate, and engage in oth er remunerative 

activity, but should not serve as an officer, director, manager, advisor, or employee of any business.

The rea lities are, however, th at in some jurisdictions the salaries of full 

time judg es do not approach an adequa te level, and judges withou t independent 

means mu st “moonlight” or forego being judges. The Committee was convinced, 

nevertheless, th at even in these jurisdicti ons judges should comply with the 

minimum standard prescribed by Canon 5C(1). The Committee recognized that 

compliance with this canon might cause hardship in jurisdictions where judicial 

sala ries are so inadequa te tha t judges a re presently supplementing the ir income 

through commercial activities. The Committee was unwilling to low’er the basic 

sta ndard in 5(C )(1) . The remedy, it believes, is to secure adequate judicial 

sala ries. The Committee also believes th at Canon 5C(2) sets a minimum standard to which all judges should ultimately adhere. It proposes, however, th at :

Jur isdiction s that do not provide adequate judicial sala ries but are willing 

to allow’ full-time judges to supplement their income through commercial activities may adopt the following sub stitut e until such time as adeq uate salarie s 

are provide d:

(2) Subject to the requirem ents of subsection (1), a judge may hold and 

manage investments, including real esta te, and engage in oth er remunerative 

activity Including the operation of a business.

Jur isd iction s adopting the foregoing sub stitute may also wish to proh ibit a 

Judge from engaging in certain types of businesses such as banks, public utilities, insurance companies, and other businesses affected with a public interest. 

The effective date of compliance provision of the Code also qualifies Canon 5C
7

with regard to judges engaged in a family business at the time the Code 

becomes effective.

Other specific provisions of Canon 3 relate to the financial activities of judges. 

Thus subsection C(3) provides:

A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do so 

without serious financial detriment, he should divest himself of investments 

and other financial interests that might require frequent disqualification.

Under Canon 3C(1) (c ), a judge is disqualified if he knows that he, individually or as a fiduciary, or his spouse, or minor child residing in his household, 

has a financial interest in the subject matter in controversy or in a party to 

the proceeding, or any other interest tha t could be substantially affected by 

the outcome of the proceeding;

Canon 3C(2) provides: A judge should inform himself about his personal 

and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children 

residing in his household.

“Financial interest” is defined by Canon 3C(3) (c) as ownership of a legal or 

equitable interest, however small, or a relationship as director, advisor, or 

other active participant in the affairs of a party, except that:

(i) ownership in a mutual or common investment fund tha t holds securities 

is not a “financial inte rest ” in such securities unless the judge participates in 

the management of the fund ;

(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;

(iii) the proprietary inte rest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary 

interest, is a “financial interest” in the organization only if the outcome of the 

proceeding could substantially affect the value of the interest;

(iv) ownership of government securities is a “financial interest” in the 

issuer only if the outcome of the proceeding could substantially affect the 

value of the securities.

The Committee has attempted to meet directly and with as much specificity 

as possible the critical ethical issues of our time. One such issue is the public 

reporting of a judge’s financial activities. The alternatives were to require 

complete public reporting of a judge's investments and debts, to reqiure no 

reporting at all, or to take no position on the question of reporting. The Committee chose not to evade the issue and made its decision clear as to the items 

that should not and the items tha t should be publicly reported. Thus Canon 

5C(6) provides:

A judge is not required by this Code to disclose his income, debts, or investments, except a s provided in this Canon and Canons 3 and 6.

The commentary amplifies tha t canon as follows: Canon 3 requires a judge 

to disqualify himself in any proceeding in which he has a financial interest, 

however small; Canon 5 requires a judge to refra in from engaging in business 

and from financial activities tha t might interfere with the impartial performance of his judicial duties; Canon 6 requires him to report all compensation 

he receives for activities outside his judicial office. A judge has the rights of 

an ordinary citizen, including the right to privacy of his financial affairs, 

except to the extent that- limitations thereon are required to safeguard the 

proper performance of his duties. Owning and receiving income from investments do not as such affect the performance of a judge’s duties.

We come; finally, Mr. Chairman, to the provision of the proposed code tha t 

is perhaps of greatest interest to your Committee, namely Canon 3D, which 

provides:

D. Remittal of Disqualification.—A judge disqualified by the terms of Canon 

3C (l)(c) or Canon 3C (l)(d) may. instead of withdrawing from the proceeding. disclose on the record the basis of his disqualification. If, based on such 

disclosure, the parties and lawyers, independently of the judge’s participation, 

all agree in writing tha t the judge’s relationship is immaterial or that his 

financial interest is insubstantial, the judge is no longer disqualified, and may 

participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

The commentary to Canon 3D provides: This procedure is designed to minimize the chance that a party or lawyer will feel coerced into an agreement. 

When a party is not immediately available, the judge without violating this 

section mav proceed on the written assurance of the lawyer that, his par ty’s 

consent will be subsequently filed.
Because of the potential hardship on the parties, particula rly in emergency 

cases, that might be entailed by the delay in a proceeding until a qualified 

judge could be obtained and in the interest of efficient administration of justice, the Comimttee decided that under certain circumstances the disqualification based on financial interest or relationship could be waived. For reasons 

that Professor Thode will develop, we abandoned substantiality of the judge’s 

financial interest as the basis for disqualification and took the strict position 

tha t ownership of a legal or financial interest, however small in the subject 

matte r in controversy, disqualified the judge. Nevertheless, there are bound to 

be instances in which all interested parties would readily agree tha t the interest was insubstantial and the relationship immaterial. Our principal problem 

was to minimize the chance that a party or counsel would feel under pressure 

to waive the disqualification and to devise a procedure to that end tha t would 

be practicable and operate with reasonable simplicity. Under our proposal, the 

judge must disclose on the record the basis for his disqualification. We believe 

tha t ordinarily he will do so only if he feels that the relationship is immaterial or the interest insubstantial. After such disclosure, the parties and lawyers, 

independently of the judge’s participation must agree tha t the basis of disqualification is immaterial or insubstantial. The phrase “independently of the 

judge’s participatio n” will require consultation of counsel and parties out of 

the presence of the judge. It is believed tha t the delay in the proceeding this 

absence of the judge entails will not prove too disruptive. The requirement 

tha t the parties as well as their lawyers agree is imposed in the belief that 

parties are less likely than counsel to feel judicial pressure and tha t it serves 

not only to protect counsel but to give them an avenue of escape from any 

such pressure they may otherwise feel. To simplify the procedure and to prevent unnecessary delay, when a party is not present, the judge is permitted to 

proceed on the written assurance of the party’s lawyer tha t the party’s consent will be subsequently filed. We believe that his sense of professional responsibility and the necessity of his continued good relationship with his client will 

preclude the lawyer from heedlessly giving such w ritten assurance in the hope 

of currying favor with the judge.

Thank you for the privilege of appearing before you and for your interest in 

the work of the American Bar Association Special Committee on Standards of 

Judicial Conduct.

Mr. Kastenmeier. Mr. Frank.

STATEMENT OF JOHN P. FRANK, ESQ., ATTORNEY AT LAW, 

PHO ENIX, ARIZ.

Mr. F rank. Mr. Chairman, thank you.

Let me say a personal word.

I began working in this field in 1947, at the time of the controversy 

concerning Justice Black and Justice Jackson on the Supreme Court 

as to proper standards for disqualification. At tha t time, because of 

the immense national interest which was extraordinary, I was able to 

get a response from the presiding judges of almost all the circuits, and 

the chief judges of almost all the States to a questionnaire on disqualification practice in America. That was published at that, time, 

and the article has been much used from then until now as a kind of 

guideline on when to disqualify.

May I say just a word ? I know you are pressed, but the history may 

interest you a little. Wh at happened was a major misfortune. In the 

course of the codification in 1948, by apparently plain blunder, when 

the Judicial Code was recodified for the first time the word “substantia l” was p ut in front of “interest” as a test of disqualification, so that 

when I made my survey in 1946—47, the Federal judges of the United 

State s were disqualifying in the case of any interest, as seven-eighths 

of the State judges were, too. What happened when th e word “substantial” went in there was that as new generations came along new 

approaches began to develop and it got to be a question of more or 

less. A judge felt tha t he need not disqualify, particularly if he was a
rich man, if he had a small interest. Wh at difference does^it make? 

There was a genuine deterioration between 1948 and 1970 on the 

prop er standards on this subject.

This reached an apogee in certain cases in the fifth circuit with 

which you are probably familiar, in which several judges had real 

interests in public utilities on matters coming before them. These 

were small to them because they were rich men but to the country at 

large it was j ust not a good thing.

When the matter came on in connection w ith the appointment of 

Jud ge Haynesworth, the Senate Judiciary Committee asked me to 

appear as an expert witness on the general law’ of disqualification. I 

advised the committee to th e best of my ability. At th at time Senator 

Bayh, for wdiom I have high regard, and I saw the matter differently 

as to its then application under the then existing law, but we both 

agreed on two things: First , tha t it was grossly unfair—I really use 

that colorful phrase deliberately—to apply at the confirmation level, 

stan dard s which were incompatible w’ith what the law actually was as 

it w as written. It made the statute a boobytrap.

Senator Bayh took the view th at the law should be changed to conform with the standard being applied.

When Justice Blackmun was appointed, the identical problem arose 

with him, because he had heard cases in which he had shares in the 

Ford Motor Co. He said to the Senate committee:

We must candidly recoprnize th at the standards and times have changed and we 

are approaching things differently now.

In an effort to bring the statute into conformity, Senator Bayh, 

Senator Rollings and I worked out a bill which would do fund amentally two things. First, it would provide tha t a judge must disqualify if there was any interest. The great dramatic episode in the 

Haynesworth matter was not the one th at you recall but in a sense a 

different one. It was a case where a judge had a p iddling bit of stock 

in some corporation. He got it pending a rehearing on a case tha t was 

clearly to be affirmed anyway, but the feeling was th at whereas from 

where he sat it was nothing, from the standpoint of the injured workman, who was losing his all as a result of a decision, it just isn’t going 

to look that wav. It would be better to have a standard in which any 

financial interest is a disqualification. To put it bluntly, we have 

enough judges now that we can afford a higher standard.

Secondly, on the matter of the so-called appearance of impropriety, 

we have had a conflict in the Federal system, at least since about 1920. 

The ABA standard has been that a judge should disqualify if it was 

going to look bad if he sat. Now I do not mean that as loose talk. 

Clearly you cannot womp up an imagined impropriety. I have written 

quite critically of this, because it would be easv to create a storm, and 

a judge should not yield to it, but there are o ther matters dramatized 

by a case of Judge Beeves of the fifth circuit. Judge Beeves some 

veai-s ago issued an opinion saying, “I clearly would not like to be 

in this case. T have expressed views. I have been involved. It would 

be better if I were out of it bu t I can’t get out,” and so his vote became 

a controlling vote in a serious matter.

What the statute does basically is solve both those problems. As 

a byproduct of the earlier contention, Senator Bayh and Senator 

Hollings put in bills before the Burdick committee and which in fact 

I worked on. Meanwhile as a byproduct of other national attention, 

the Traynor committee was established. The Trayno r committee had
10

on it. Justice Potter Stewart, several judges and bar members and it 

did have extensive hearings. Judge Traynor did a wonderful job as 

be always does. Senator Bayh and I went out to St. Louis, appeared 

there discussed this m atter in the way Ju dge Traynor and I are discussing it with you.

Those points of view were accepted by the Traynor committee, 

which was going in the same direction anyway. At that point the two 

Senators abandoned their bill and said, “Now we will w ait for Judge 

Trayno r’s bill.” Hence the matter was held over for a year on the 

Senate side. When the Traynor committee reported, its report went to 

the Judicial Conference. The Judicial Conference then adopted the 

Traynor standards, which are set forth in the Senate hearings, and it 

ordered that they be followed. Rowland Kirks has made a statement 

desc ribin gtha t in the Senate materials.

At tha t point it was informally agreed th at Senator Burdick would 

put in a third bill which would be supported by Senators Bayh and 

Hollings, and that third bill is the one you have which is the Traynor 

bill.

It has passed the Senate.

A last word. It is obvious that you two gentlemen are giving time 

to this today because this is serious business. It is a part of the morality 

of the times tha t we simply must improve these standards, and we 

must end the conflict which exists. This is a bill which is obviously 

easy to get lost because it is housekeeping. The immense excitement of 

a few years ago has diminished now so tha t disqualification doesn't 

have the high passion that it had, but I make bold to say tha t it would 

be a distinct public service if you could send this bill wheeling and 

give us a uniform standard throughou t the United States.

If you have any questions, I would love to grapple with them as 

best I can.

Mr. Kastexmeier. Thank you, Justice Traynor and Mr. Frank. I 

have jus t a couple of questions. I think most members of this committe, its parent committee and the House, probably have very little by 

and large to do with the question they have had very little exposure 

to, the question of disqualification. Therefore, it is for many people a 

new area concerning which they have very little expertise.

Did I understand you to say that at one time the rule was any in terest. and then it was changed to “sub stantial” ?

Mr. Frank. What happened was that prior to the 1948 revision of 

the Ju dicial Code it was less a matter of rule than a matter of practice, 

and as my survey published in the Yale Journal of 1947 shows, the 

overwhelming practice was that there was disqualification for any 

interest. I won't burden your record with a few illustrations to the 

contrary. One Federal circuit took the view th at if the holding was 

very small, the person might sit. The Michigan Supreme Court took 

that view, and so on, but I would say th at 90 percent or more of the 

court in the country took the view tha t any interest was a disqualification and said so in writing to me and it has been published. I still have 

this written report.

[Mr. F ran k's statement from the Senate hearing follows:] 

Statement of John P. F rank

My name is John P. Frank and I am a practicing lawyer and member of th,e 

firm of Lewis and Roca in Phoenix, Arizona. To avoid repetition, I attach as 

an exhibit to this report an identifying footnote and a bibliography of my work
in the field of disqualification as it appeared in my most recent article on disqualification of judges, 3 Utah Law Review 377 (1972). Since tha t article covers much of this testimony, 1 submit a copy with this Statement. By virtue of my general acquaintance with this subject, I was called upon by Senator Eastland to appear as an expert witness to advise the Judiciary Committee in connection with the nomination of Justice Clement Hayneswortli at the United States Supreme Court. Senator Bayh and I appeared together before the Traynor Committee of the American Bar Association at its 1971 meeting in St. Louis on this subject. I also appeared before this Subcommittee on a draft of legislation on this subject, Senator Bayh’s S1886, on July 14, 

1971. The general thrust of all of the discussion of recent years is that § 455 as it stands, the present federal disqualification statute, is wholly inadequate to the needs of our time. It needs a complete rewrite. The matter is important because it goes to the character and reputation for integrity of the federal 

judiciary. What is needed is a solution and not any particular form of words. There are various ways of handling this problem. I was permitted to join with Sena­ tor Bayh in the drafting of his earlier proposal. I published a proposed dra ft of my own in the Utah article just referred to. Senator Rollings of South Car­ olina has given very close thought to this subject, and proposed a dra ft which has great merit. The Traynor Committee has made its own recommendations, and these have now been adopted as the Canon for the American Bar Associa­ tion. They have in turn been approved by the Federal Judicial Conference. We 

need a statute to complete the job. The matte r has had the most scrupulous thought, and we have reached the occasion on which it is time to be done. In my view, we should not stand on a 

particular form of w’ords, but wre should achieve these two goals: 1. Our federal disqualification statute ought to be in conformity with con­ temporary practice and contemporary ethical standards, taking into account the greater number of federal judges now available than when the Act was origi­ nally passed. We can. in terms of plain manpower, afford to weigh the balance a little more heavily in the direction of care to avoid appearances which might have been borne at an earlier stage of our history when there was less manpower to do work which had to be done. 2. We should try to keep the federal statute as nearly in accord as possible with the recommendations already adopted by virtue of the work of the Traynor Committee. That Committee was distinguished beyond most committees, its work has been widely praised and ratified, and we must not put a federal judge into the position of having to chose which he shall obey, the federal statute or the ABA Canons. We may, if we wish, make the federal statute more strict than the ABA Canons; but under no circumstances should we make it less strict. 

Maximum uniformity is desirable. In my 1971 appearance, I did generally lay out the standards, principles, and problems in this area. I incorporate tha t testimony by reference and confine myself now to comments on the particular bill before the Committee. In the discussion in the following paragraphs, the numbers below refer to those in 

the bill.

§ 455(a). This provision, which provides that the judge shall disqualify 

wrhere his “impartiality might reasonably be questioned,” I understand to be the adoption of the so-called “appearance of impropriety test” as stated by the 

United States Supreme Court in Commonwealth Coating Corp. v. Continental

Casualty Co., 393 U.S. 145 (1968). This standard was expressly endorsed by Justic e Blackmun in the course of his confirmation hearings before the Senate Judiciary Committee and it follows exactly the parallel provision of the ABA Canons. It eliminates the so-called “duty to sit ” rule of Edwards v. United

States, 334 F.2d 360 (5th Cir. 1964) and numerous other cases collected in note 9 of my Utah article, instead giving judges a reasonable latitude to disqualify where an appearance of unfairness may reasonably exist if they si t

§ 455(b) (1). This provision on personal bias or prejudice accords with the ABA Canon, and accords with the tradition on this subject. The provision is not as progressive as I personally would have wished since it does not reach possible bias or prejudice on an issue, but only on pa rti es ; but I would leave 

an accomplishment alone and accept it.

§ 455(b) (2). This provision bars the judge if. put generally, he had been involved in the matter in his private practice. The provision is traditional, it accords with the ABA Canon, and is readily workable. It covers the situation, essentially, in which either the judge when he was a lawyer was involved in the matter or the situation in which the matter was in his own office when he
12

left it to tak e the judgeship, whether he had something to do with it or not; 

and it also includes any a ctiv ity as a m aterial witness.

§ 455(b) (3). The ABA Canons cover the previous involvement of the lawy er 

in the man ner in controversy withou t making a distinction between his 

involvement in a priv ate law office or in a government agency. This is left to a 

comment in the government agency situation . It has seemed to the draftsmen 

of S1064, particu larly in the light of the problems raised in Jus tice Rehnquist's opinion in Laird v. Tatum, 93 S.Ct. 7 (1973) th at it would be better to 

divide the priv ate and public practic e provisions. Hence the Subsection (2) to 

which I have jus t commented is restricted to priv ate practice and a new provision (3) is added to cover public employment as an atto rney .

In Laird, a case involving the problem of whether Justice Rehnquist needed 

to disq ualify in a certain matter because of his involvement in problems concerning the same subject matter in the Departm ent of Justice , Justice Rehnquist concluded that he should not disqualify. He generously quoted extensively 

from cer tain writings of my own in coming to his conclusion, and I believe 

him to be wholly correct in the conclusions under the law ns it has existed. 

The new (3) covers the rea lities of government practice. It disqualifies the 

judge who may have been involved in the particu lar matter “as counsel, 

adv isor or material witness” and it also disqualifies the judg e wTho. w hether he 

was in the par ticula r ma tter or not, may have “expressed an opinion concerning the m erits of the controversy” which is in the particu lar case.

I must acknowledge that I find this language ambiguous and that I do not 

know whether it is intended to reach the “the controversy” in the general 

sense of the broad merits of the legal issue or whether it means “the controversy” in the sense of the pa rti cu lar controversy with the pa rti cu lar individual 

involved in the case. For example, an Attorney General may have expressed an 

opinion th at the Selective Service Act is constitutional, and I do not suppose 

that it is meant to disqualify him from all Selective Service disputes which 

may ari se thereafter. On the oth er hand, if he has expressed an opinion as to 

whether the Act is or is not being properly applied in respect to a par ticula r 

draftee , then it seems clea r th at the new statute would exclude him from a 

case involving that dra ftee and I would like to believe th at this is what is 

intended by the section. In any case, the section does not ba r the judge who 

has been in a government agency merely because othe rs in the agency may 

have been dealing with the pa rticu lar subject ma tter so long as he had nothing 

whatsoever to do with it.

5 4 55 (b )(4) . This provision has to do with the financial inte rest in the 

matter and must be read in conjunction with the later definition which provides th at a financial inte rest reaches the ownership of “a legal or equitable 

interest, however small” ,and also reaches a relationship as the director, 

adv isor or other active p articipant in the affairs of a company.

This is the most important provision in the new law and is essentially the 

same as the ABA Canons. It eliminates all questions of whether the interests 

of the judge are more or less and rids the law of the lim itation requ iring disqualification only in cases of the “substantial intere st” which came into the 

fede ral statute in 1948. No one has ever published and I have never been able 

to find out why that clause was added in 1948 and I am compelled to regard it 

as an accident and an extreme ly unf ortuna te one at that. Th at qualification 

was out of accord with the practic e at the time it was put into the law. has 

created severe trouble, cost and inju stice since, and we are well if belatedly 

rid of it. I have covered th at subject thoroughly at pages 381 to 385 of the 

Utah a rticle which I import by reference.

As I construe the section, if the interests of the judge as a creditor, debtor 

or supplier of a party will in any way be affected by the case, then he must 

disqualify. Otherwise, he should not do so. Under the sta tut e, a judge with an 

intere st in the third party which in tur n has business rela tions to a par ty to 

the case is not disqualified for intere st unless the case dire ctly affects the 

third party . A contrary rule would lead to impossible consequences. The new 

Canon and the proposed statute give us a good practic al solution of an age-old 

problem.

§455(6) (5). This section covers the types of disqualification commonly 

grouped und er the classification of “relation ship.” It follows the Canons and 

presents no new problems.

§ 455(e). This provision require s the judge to be informed about his own personal financial inte rests and calls upon him to make a reaso nable effort to 

know about those of the relations who might, by virtue of their holdings, cause
13

him to be disqualified. There are highly practical problems here. Some people 

hold a wide number of stocks, or maintain portfolios in which there may be 

considerable turnover. There exists the possibility of disqualification in fact 

where the judge does not know that he has a particula r investment. I read this 

provision to be virtually a requirement tha t those judges who have extremely 

dispersed holdings must make an effort to consolidate the m; they will not be 

excused for failing to know what they have. On the other hand, they clearly 

cannot as well know of varying investments of relatives, and here all that is 

required is “a reasonable effort.” § 455(d). This section includes a series of definitions which I have used insofar as it is useful in the earlier discussion.

§ 455(c). This section deals with the problem of waiver. There are those who 

believe tha t there should be no waiver of disqualification; I have been one of 

them. The practicalities of life are tha t waiver can be a kind of a velvet 

blackjack in which the lawyer who is going to appear before the same judge 

at another time in another case really has very littl e choice. On the other 

hand, there is also the feeling of those from the areas in which other judges 

are not available that waiver should be allowed. The ABA has reached a practical solution permitting w’aiver where the parties agree in writing, outside the 

presence of the judge, that the relationship is immaterial or the financial 

interest is insu bstantial; and the ABA Canons furth er provide tha t such an 

agreement must be signed not merely by the lawyers but by the parties, this 

giving maximum protection to the lawyer, for it will never be known whether 

it was the lawyer or the party who drew the line.

The statute applies a stricter standard than the ABA Canons in this regard. 

Waiver is permitted in the cases in which the disqualification arises only 

because of a reasonable question about impartiality, and this after full disclosure. There may be no waiver if the judge is disqualified for interests, relationship, or bias.

This seems to me a practical solution.

Please permit me to conclude on a note of personal appreciation. I have been 

involved with this subject matter for more than 25 years, and it interests me 

enough to bestir myself to write occasionally or to speak on it. I can do so in 

the circumstances of the relatively pressure-less life of an attorney and writer. 

For United States Senators to pay close personal attention to such a matter is 

another thing. On the scale of war, peace, taxes, the air, the land, the sea, and 

all the other major concern of Senators of the United States, disqualification 

of judges has to be a comparatively minor concern. Yet because it goes to 

character and integrity and fairness in the appearance of fairness, it does 

have an importance of its own.

In these circumstances, as a member of the Bar, I express personal gra titude to Senator Bayh, Senator Hollings, and Senator Burdick, each of whom, 

to my own knowledge, have spent extended time personally, and not merely 

through staff, on the details of this matter. I believe tha t Chief Justice Traynor and the members and staff of his Committee will acknowledge tha t thisSenate Committee and the Senators I have named have made a contribution to 

the formulation of the ABA Canons and the Congress can well complete the 

job by carrying these reforms into law.

Mr. Frank. W hat happened was I think an abridger or codifier, 

meaning to get the sense of the previous law simply accidentally 

changed so tha t the word “substantial” went into the code in 1948.

I have exhausted the legislative history. There is no explanation of 

it. Nobody asked for it. It just happened.

Mr. Kastenwf.ier. 1 take it that in the discussions and dialogs tha t 

have taken place about this question, that there isn’t any substantial 

opposition to this bill or the proposal within this bill, particularly on 

this point. Ts there any opposition at all ?

Mr. F rank. I will defer in a moment to the Chief Justice, but let 

me say that T believe T know. I have had articles on the subject in the 

Duke, the Michigan and the Utah Law Reviews, have had a good deal 

of mail and have been in touch with the bar throughout the country. I 

thin k it is fair to sav so far as I know there is no longer a soul in the 

United States who doubts th at it would be better to take judges out
14

if they have any interest at all. The question of experimenting with 

more or less, as Chief Justice Traynor has said, so clearly depends 

upon economic perspective of the person making the judgment, tha t 

it is a decision better not presented. Have you heard of any opposition ?

Judge Traynor. No, I haven’t.

Mr. Frank. I have heard none.

Mr. Kastenmeier. Does S. 1064 concern itself with other changes 

than tha t particular change “substantial interest” to “any interest” ?

Mr. F rank. Do you wish to direct that to me or to the Chief Justice ?

Mr. Kastenmeier. Let me direct it to Judge Traynor.

J udge Traynor. I think you had better reply.

Mr. Frank. Let me say what the statute does, speaking broadly now, 

if this is what you want, listing th e changes th at are made in existing 

law. I f you will look on page 1, lines 6 to 8, that is new. That is the 

elimination of th e so-called duty to sit. The provisions from there on, 

all of page 2 is essentially, with qualifications which I will explain if 

you wish, the codification of existing law of the present Judicial Code 

in substance, with this qualification: The provision in lines 14 and 17 

is the heart of the bill. The judge disqualifies if he knows that he has a 

financial interest. Tha t eliminates the question of substantiality and 

the question of more and less.

Second, Jud ge Traynor has codified the relationship provision a 

little more usefully than it was before, and has nailed down the provision on page 2 with a provision on page 3, line 18, which says that 

“Financial ownership means ownership of a legal or equitable interest, however small.” That is the guts of this bill, and its vital aspect.

Then comes the matter of practical problems about mutual funds 

and so on, which are dealt with here. It achieves the two results which 

the judge mentioned: (a) It makes changes, but (b) it also gives some 

clarifications.

The other change is minor but meaningful in several colorful cases. 

On page 3 is the admonition that a judge should inform himself about 

his personal and* fiduciary financial interests. We have had occasions, 

episodes where the judges trul y didn’t know. If you don’t mind, I 

won’t name names because it simply leads to loose talk.

Mr. Kastenmeier. It isn’t necessary.

Mr. Frank. In a certain case which is well known to all of you, a 

judge who had a very broad portfolio has simply sold out his stocks 

and narrowed it and put things back into a very narrow portfolio so 

tha t he can carry in his head what i t is that he owns, so. that he won’t 

run into accidental involvements. T hat is wfiat this is aimed at.

Mr. Kastenmeier. Page 1, line 6 ,1 am wondering what the practical 

meaning of th is i s:

Any jus tice shall disqualify himself in any proceeding in which his imp artiality 

might reaso nably be questioned.

Mr. Frank. May I address myself to that? As you have said, the 

committee does not deal with this commonly and therefore you may be 

unaware t ha t these are terms of art. These are not empty words, what 

they do is adopt the ABA standard as it has existed since 1922, and as 

it has been interpreted over and over again by ABA canons and decisions around the country. Most of the States follow this practice 

anyway. I t gives the judge certain latitude so that he can at least think 

the matter through. I want to make loud and clear for purposes of this
15

record, because I assum e th at th is rec ord may have importance fo r 

many, ma ny y ea rs in the fu ture, th at th is does no t mean th at judg es 

are going to be casuall y ge ttin g off th e bench or th at some body can 

ma rch int o a judg e an d say, “W ell, I ju st do n't feel com fortable with 

you. I w ish you would go away. I ques tion y ou r i mpa rtialit y.” T ha t is 

no t to happen a t a ll.

For example, it ha s been the fixed practic e th at a jud ge may have 

developed point s of view on a m at te r b ecause he has ha ndled the sam e 

matter pre vio usly an d been involved in i t ; som eth ing of t hat sort. To 

th at e xte nt he has made up his mind. To challenge on th at grou nd is 

no t pe rm itted by th is clause at all. I t is meant to cover the ki nd of 

th in g where, fo r exa mple, perso nal relatio nship s are involve d. A 

judg e may in fa ct have personal ties of fri en ds hip, no t a leg al re la ­

tio nship in the sense of kinship bu t perso nal ties of fri en dship, so 

close wi th a litig an t th at he feels t hat it is jus t not righ t fo r him to be 

in th at case. Thi s pe rm its him to take hims elf out, in th at cir cu mstances. Some judg es have done it a nyw ay.

If I m ay giv e a n illus tra tio n of m y a lmost names ake and old fri en d, 

Ju dg e Fra nk with whom I have no relatio ns hip whatsoever. Jerome 

Fra nk d id in fa ct not sit in Mo rris E rn st's cases because h e sa id, “T his 

is one of my old est friends and I wou ld lean over backwards . I 

wo uld n’t be de aling fa irly w ith h im .”

In so d oing, th e t ru th is t hat Ju dg e Fra nk was violati ng the ex istin g 

sta tute, an d others did too. T hey could because th ere was no close check 

on it. Others hav e view ed the same qu estion th e opp osite way a nd fe lt 

they did not have th at lati tude . W ha t t his does is p ut in some comm onsense.

Air. K astenmeier. Actu ally, outsid e o f th is, in coexistence with this, 

is the view th at a jud ge has a duty to sit.

Mr. F rank. Th at is rig ht.

Mr. Kastenmeier. In cases where he might no t reason ably be di squalified and disqua lif y himself.

Mr. F ran k. Th e jud ge, unless his im pa rtia lity may rea son abl y be 

questioned in term s of common trad itio ns of wh at is a reason able 

doubt does hav e a du ty to sit. li e is req uir ed to go back t o th e book s 

an d find out wha t th e tra ditio ns an d pract ice s have been. Th ere will 

be gr owth and c han ge, of course, as there a lways will be in the common 

law, bu t Ch ief Ju stic e Tr ay no r, a ste rn disciplin arian and a gr ea t 

jud ge, was no t t ellin g jud ges to go off and take vacation s ju st because 

cases were u nco mfortable. That is no t wha t thi s means. You co ncu r, I 

believe.

Ju dg e T raynor. Righ t.

Mr. Kastenmeier. I yield to my fri en d fro m Main e.

Mr. Cotten. I th an k the chair ma n fo r yield ing . First, let me say 

wha t an h on or and privi leg e it is fo r me to be sittin g here. Ju st less 

th an 10 year s ago whe n I was bu rie d aw ay in the catacombs of law 

school, going t hr ou gh m any , m any t ra di tion al decisions I th in k one of 

th e s avi ng graces o f all th at te diu m t hat goes into g ettin g a degree was 

read ing some of yo ur opinion s, Ju dg e Tr ay no r. I th in k you^will occup y for me a t least a ve ry h igh place.

Ju dg e Traynor. Tha nk you, sir. That is hi gh prais e and I ap pr eciate it.

Mr. Cohen. I on ly hav e a couple of questions. As I un de rstand it, 

th is would p ro hi bi t any kin d of finan cial interes t o f a ju dge s itting on
16

a case in which he might have any kind of an interest, is that correct ?

Judge Traynor. That is right. \

Mr. Coiien. Tha t would take in a situation I assume that if a fairly 

wealthy judge has several million dollars in assets let s say tied up in 

perhaps a blind trus t or some sort of a portfolio, would he be required, 

under this legislation, to review each and every stock that he had ?

Judge Traynor. Yes, he is obliged to, and in a way repudiate the 

blind tru st device.

Mr. Coiien. So he has a continuing obligation constantly to review 

whatever assets he might have in the form of stocks ?

Judge Traynor. Th at is right, and there is an exception here for 

mutual funds, because of the impossibility of keeping track of a portfol io of a mutual fund.

Mr. Cohen. That would be the only exception.

Judge Traynor. That is right, and then there was some talk a t times 

of including his duty to know what his wife had. We thought th at was 

not feasible, which reminds me of a story which you may have heard. I 

heard the first about 40 years ago. The Commissioner of Indian Affairs 

came out to visit the Ind ian reservation and to announce Indian policy 

that there would no longer be polygamy allowed on Indian reservations. The Commissioner explained to the Chief, who had three wives, 

that he had to give up all bu t one, and the Chief asked, “W hat do you 

suggest?” He said, “Well, you select the one tha t you want and you tell 

the others that they cannot be your wives anymore.”

The Chief said, “You tell them.”

That is part of the thinking back of this business. I think we provide this on page 3, “to make a reasonable effort to inform himself 

about the financial interests of his spouse and minor children residing 

in his household.” To answer your question directly, the Judge has an 

obligation, and he cannot avoid it by blind trust.

Mr. Coiien. On page 3, you say, “A judge should inform himself 

about his personal fiduciary and financial interests.” Does it make a 

difference in terms of words of art, “should” as opposed to “shall,” as 

to the mandatory aspect ?

Jud ge Traynor. I don’t think so.

Mr. Coiien. I do not notice that there is any penalty imposed for 

violation of this particu lar bill or penalty as such. Would it be an impeachable offense for which a judge could be removed?

Air. F rank. If I may answer tha t, tha t is not what is intended. What 

is intended is that first the judge is admonished th at he is not to do 

these things; second, should he have a misunderstanding or misinterpretation of the matter, he is subject to review. He is subject to 

mandamus and he is subject to reversal. Even under the existing law 

there has never been any enforcement problem.

Judg e Traynor. Your question suggests another which is a decidedly 

interesting one intellectually. Tha t is whether a judge w’ho sits in violation of these standards, whether the judgment that he enters is then 

subject to collateral attack. It would be my judgm ent tha t where his 

disqualification was fo r financial interest, and he did not keep track 

of his interests or if he deliberately sat despite the financial interest, 

thinking th at, say, five shares in General Motors was insubstantial, in 

violation of our more heroic provision tha t any interest, however 

small, would raise a serious question as to whether tha t judgment 

would be subject to collateral attack.
17

His sitti ng where he gives the ap peara nce of im prop rie ty and so 

fo rth , I doubt if th at would be subje ct to collateral attack . The bill 

does not attempt to mee t your question b ut it is a very interesti ng one.

Mr. Coiiex. So fa r as the manda tory asp ects then of this pro vis ion , 

you are suggesting th e decision its elf might be subject to colla ter al 

atta ck.

Ju dg e Trayxor. Collat eral attack .

Mr. Coiiex. T hose are as of discre tion where it is a matter of ju dgment on the part of the ------

Ju dg e Trayxor. Yes, I sho uld th in k in view of Tu mey v. Ohio,

Com mon wealth Co ati ngs, th e last one 1 thi nk was by Ju stice Black , di squalified even an ar bit ra to r who had a fina ncia l intere st where it was 

co ntrary to due process of law.

In Turn ey v. Ohi o, as I recall, the judge was p ar tici pa tin g in th e fees 

th at were req uired to h ea r the case and the U.S. Supreme Co urt held 

held th at was co nt ra ry to due proce ss of law. I think the re is str on g 

supp ort for the prop osition th at a judge who sit s in vio lation of the 

financial intere st disqua lification would sub ject his ju dgme nt to co lla tera l attac k.

Mr. Coiiex . Y ou rai se an interesti ng qu estion in my mind, M r. Ju stice Tray no r. Th e th ru st of th is bill it seems to me is in the field of 

fina ncia l inte rest. In o th er words, the proh ibi tio n again st any ap pe ar ­

ance o f im prop rie ty on account of financial interest, and touc hes o nly 

briefly in ter ms of othe r typ es of inter est the judge might have. F or 

example, i m pa rtia lity m ight be reas onabl y q uestioned. I would assum e 

th at you, Mr. Fr an k, would feel fa irly confident th at the cano ns of j udicial ethics are dr af te d in such form th at there was ade quate pr otection ag ains t other type s of app roa che s, fo r example, to jud ges th at 

we were talk in g abo ut prior . Th ere was ade quate langua ge the re, bu t 

I guess the question you pose in my mind, J us tic e Tr ay no r, is co uld a 

ditferent sit uatio n exclu din g the financial interest, but in the field of 

im pa rti ality , be re aso nably questioned ? L et's assume an appro ach m ade 

by a th ird pa rty to a jud ge. C ould t ha t be sub ject to collateral attack ? 

In oth er word s, th ir d defend an ts migh t raise the question about impa rtia lity in a matter o f discre tion . C ould that be collaterally a tta cked ?

Ju dg e Trayxor. When you embar k on an inv est iga tion of the lim its 

and ram ifications of col latera l att ack, you are almost in a lawschool 

exa minat ion or course. We did not th in k it ap pr op riate for us to go 

into such ma tters.

Mr. F rank. 1 would say, if I might sup ple me nt, it is subject to di ­

rect att ack witho ut question. The question of collateral attack , 

wh eth er it reaches the point that it becomes, as the Ju dg e has said, a 

denial of due process an d is so void or wh eth er it is mere er ro r would 

req uire a set of qua lification s th at is beyo nd the scope of this bill or 

ou r commentaries.

Ju dg e T rayxor. We cover in some detail the questio n of ex pa rte 

com munica tions between the jud ge and th ird per son s an d we tak e a 

very str ong pos itio n again st that, even to the co nsult ing of law pr ofessors and people who would or dina ril y be con sidered objective. We 

req uir e th at any com municatio n between a judg e and a th ir d person 

mu st be on the record and open to the cle ar lig ht of the sun.

Mr. Coiiex. T ha t is pr io r t o the discussion of th is bill.

Ju dg e Trayxor. T ha t is rig ht. Th at is in the Ju dicial Code which 

th e Ju dicial Con ferenc e has adopted , the Code of Ju dicial Conduct .
18

Mr. F rank. May 1 supplem ent, Mr. Cohen? l o u are aw are th at 

wh at this bill is is sim ply a ha lf of one of the can ons of t he T ra yn or 

rep ort, and th at the othe r canons, which a re t he ABA c anons and the 

Ju di ci al Conference req uir em ents have nev er trad itio na lly been st atuto ry. Those are le ft to eth ica l enforcement. W ha t the Chief Ju sti ce 

is addre ssing h imsel f to in response to you and some of the rest of us 

are seeming only the tip of the iceberg whi ch ha pp en s to get into the 

statute here------

Mr. Cohen. Would you gen tlem en he kin d enough to fu rnish the 

res t o f th e iceberg?

Mr. F rank. It is t he re at page 137 of the book of Senate he arings ; 

137 has the whole cano ns. Th is pa rti cu la r matter is the last ha lf of 

Ca non 3. Th at is the on ly pa rt of it th at has trad iti on ally been in 

sta tute.

Mr. Cohen. T ha nk you very much. As a m atter of fact, your po int 

is well taken. I was involved with a case several ye ars ago in which 

there was an ex pa rte com municatio n by th e prosecuti ng attorney to 

the presiding just ice, which wen t th roug h th e fir st circuit and was 

finally reversed as a fund am en tal den ial of due proce ss, simply the 

notion th at an ex pa rte conference with th e pr esiding jud ge gives 

rise to imag es of the wh isp er in the judg e's ear , an d wh eth er it is 

inn ocent or not, wh at was discussed is inhe rently preju dic ial . I appreci ate y ou r comments.

Tha nk you.

Mr. K astenmeier. On the point, gen tlem en, th at the gen tlem an 

fro m Maine raises, thq,t is to say, should a per son with an intere st in 

lit ig at io n who may or ma y no t be the ma in litigan t mak e a financial 

offer to a judge, an offer wh ich as t he case may be in a dif ferent po sitio n 

on the job. and th at were no t on the record, what would the duty of 

th e jud ge he, to disclose t hat, p erh aps ?

M ight he dis qualify h im self in th at case?

Mr. F rank. T his is a recu rre nt problem. A judg e might d isq ualify 

him sel f very pro perly , an d judges do disqua lify themse lves in the 

midst of trials , not fre qu ently , hut from tim e to tim e for prec isely 

this kind of reason. The m atter alw ays calls fo r a de lib erate weigh ­

ing o f factors . IIow fa r into the t ria l are we? ITow m uch w aste would 

there be? Was the offer reall y inte nded to be an offer which was in ­

ten ded for a co rru pt purpose or is this some kind of a blun derin g 

acc ide nt? Wh ere it no rm ally happens, I am sure you will confirm, 

Air. Ch ief Justice, is some—fo rgive the exp ression— well-m eaning 

boob gets in touch with a judg e not inten din g evil hu t in fac t d oin g it, 

someone blindly not pe rceiv ing wh at is ha pp en ing here.

For exam ple, a pa thetic recu rrin g case is the mothe r of the defend an t who is imp assioned in a sit uatio n and wishes the jud ge to 

kno w th at “Mv boy is just fine,” th at kind of thing. Those episodes 

occur and call for ind ividual judgme nt, but they v ery f req uentl y res ult 

in the judge ha vin g to disqua lif y and dec lare a mist ria l in mid stre am. 

Is th at not about rig ht. J ud ge ?

Ju dg e Traynor. Yes.

Mr. Cohen. Ju st to follow th at up, th at again raises the question 

you m entioned before with Ju dg e Fr an k. l ie felt because o f the f rien dship that he would he force d to lean ove r bac kward s. I assume you 

meant a gains t his friend .
19

Air. Frank. Tha t was his trouble. On the other hand, I appeared 

from time to time before Justic e Black, with whom I had a very close 

social relationship. He always cheerfully said, “I can decide against 

you as well as 1 can against anybody else,” and I am sure that is true. 

It depends on the kind of subjectivity about the judge, the number of 

alternatives, practical solutions and so on. Those things exist.

Air. Cohen. Let me just get your opinion on this. This is quite a bit 

unrelated but it would be helpful to me personally. Let me assume 

that we are just talking about a jury. If a counsel for a defendant or a 

prosecutor were to make a job offer to, say, someone on the jury during 

the course of a trial tha t would take place that would be put into the 

record at some later time, in your opinion and in your professional 

judgment would tha t be tampe ring with a jury?

Air. Frank. Yes.

Air. Coiien. I s there any less standard proposed for judges?

Air. Frank. I will tur n to the Chief Justice who sees this more 

broadly, but I would say that the main point, Air. Cohen, is tha t a 

judge may perhaps have a greater durability and imperviousness, 

stability, sophistication and so on.

Air. Coiien. Just from a point of view, however, if you are talking 

about an impartial jury, and if either the defendant or the defense 

counsel or plaintiff were to make a proposition to a juro r while he is 

sitting on tha t case, with respect to future employment, there is no 

doubt in your mind tha t tha t would automatically be tampering with 

the jury?

Judge Traynor. I probably think tha t would be true.

Also, if the purpose of offering the judge a promotion or for the 

objective of anything influencing his judgment, there is no doubt in 

the world about it.

You see, this code was designed not just for Federal judges, but 

judges throughout the country.

But a Governor, for example, might not know all the cases tha t are 

before a court, and might have in mind promoting a judge from the 

trial bench to the intermediate appellate court, or to the Supreme 

Co urt; and he would like to talk to the judge and see what kind of man 

lie is and see whether he is the kind of man the Governor would like to 

see put on the bench.

If it is done without clear evidence before it is done, with the evidence often covert or influencing the judge, tha t is utterly unfo rgivable.

Air. Coiien. If the offer were rejected, where a judge or a juror was 

in a position not to demonstrate to the world but to himself th at his 

impa rtiality has not been destroyed, or in any way impaired, he might 

be in the position, as Judge Hand, to lean over backwards to demonstrate that fact, which is not also doing justice.

Judg e Traynor. That is correct.

Air. Kastenmeier. I have one last question I would ask you, Air. 

F rank.

I understand that under section A, a judge could accept a waiver of 

disqualification, but not under those cases in section B. I wonder if you 

would enlarge upon that.

Air. Frank. What happens, for illustration, is this: The late Judge 

Hand, for example, had a few’ shares, as I understand it, of Westinghouse. When a Westinghouse case came along, he would come out on
20

the bench—I can say this uncritically, because J udge Hand has the 

respect of all—he would come out on the bench, smile benignly at 

counsel, and say “ perhaps I had better disqualify here, I have a few 

shares of Westinghouse.” Everybody would stand up and say, “No, no, 

judge, do not do that.” The fact of the m atter is, that it was a form of 

blackjack. Nobody in the room really had any alternative. Not to 

waive amounts, in effect, to giving offense.

We discussed this matter in St. Louis. Judge Biggs said somewhere 

that in his circuit, they all were waiving. I responded, that is exactly 

what is the trouble with the practice of that c irc uit; of course they do. 

If I had my way, there would be no waiver under any circumstances.

On the other hand, there is room for reasonable difference of opinion 

here, particularly in the districts where the geographic distances are 

enormous. There is some ground for putting a little flexibility into it, 

because life has to go on.

Take, for example. Judge Doyle in your district, where you only 

have one. It is the busiest circuit in the country, the busiest district in 

the country, I think, or one of them. Until you get a second judge 

there, if you were to disqualify Judge Doyle, Judge Gordon or someone else would have to come over from Milwaukee.

What the Senate did was solve that problem, I think, very sensibly. 

They split the difference: they said if the judge has financial interest 

he is ou t: there is not going to be any waiver. If. on the other hand, 

there is a reasonable question of impartiality, the clause will put a 

little more latitude in there.

If, hypothetically, in the Madison district. Judge Doyle found himself with a case in which his ties were, very close with one side 

or another, he could raise that question for discussion. And if there 

was a general waiver and concurrence, it could be put aside.

May I give a last illustration of an experience 2 weeks ago in my 

own State. I appeared before a given judge who said to the other side, 

now I want you to know tha t I have known Air. F rank since I was a 

boy and we have been friends a long time. I f there is any discomfort 

about that. I want out. On the other hand, he said to the other counsel, 

I have known you for a long time. I performed your marriage ceremony: we have been friends a long while. No: both said, forget it, decide the case.

This permits that kind of flexibility, which I think is an admirable 

solution.

Judge Traynor. I must say, Mr. Chairman, this differs from the 

Code of Judicial Conduct proposed by the American Bar. We were 

aware of this problem—this velvet blackjack—where the judge says, I 

have, say. 10 shares of General Motors: Do you mind if I sit? And 

they fall all over each other to be the first one to say “Oh. no. your 

honor.” And you can see their fists clench below the desk and they are 

saying “The so and so should not put us in that spot.”

So, we realized t hat , but we were drawing the code for the whole 

country. Many jurisdictions do not have a plenitude of judges. And so, 

we tried to take care of the velvet blackjack problem by requiring the 

judge, when he feels he should sit without any influence of his financial interests or kinship, to reveal that on the record: and then ask 

for double assurance that it was not simplv the stipulation of counsel 

that woidd be enough, but there must be the agreement of the parties 

to the litigation. But in the federal system, there is not the problem
21

of the lack of judges that there is in many local jurisdictions. And we 

thought that there should be some give or take there, by reducing the 

pressure on counsel to agree to the judge’s sitting.

Mr. Cohen. The iron chain, and it equally binds.

Mr. Kastenmeier. I appreciate that, and with that our hearings on 

this matter are closed.

On behalf of the committee, I would like to express the thanks of 

myself for your appearance here this morning, Judge Traynor, and 

your appearance, Mr. Frank.

Judge Traynor. Thank you.

Mr. Frank. Thank you.

Mr. Kastenmeier. I t has been very helpful indeed.

[Whereupon, at 11 a.m. the subcommittee turned to the consideration of other matters.]

[Before the hearing the following report of the Department of Ju stice on S. 1064 was received by the subcommittee:]

Depar tm en t of J us tice,

Washington, D.C., April }, 197}.

li o n . I’eter W . Rodino, J r..

Chairman, Committee on the Judiciary,

House of Representatives,

Washington, D.C.

Dear Mr. C ha ir man : T his is in resp on se to your re ques t fo r th e vie ws of th e 

D ep ar tm en t of Ju sti ce on S. 1064, a bill “T o im prov e ju dic ia l mac hi ne ry by 

am en di ng ti tl e 28, U nited S ta te s Code, to br oa de n and cl ar if y th e gr ou nd s fo r 

ju dic ia l di sq ua lifica tion .”

Th e bil l wo uld am en d se ct io n 455 of T it le 28 of th e U ni te d S ta te s Code. P re sen tly, 28 U.S.C. 455 re quir es a ju dg e to dis qual if y hi m se lf in an y case in which 

he ha s a “s ubst anti al in te re st. ” Thi s pr ov ision, whi ch has lon g refle cte d th e 

max im th a t “no man sh ou ld he a ju dg e in his ow n ca us e, ” lia s been th e su bje ct of 

di ffer in g in te rp re ta ti ons. In some ci rc uits, dis qu al ific at io n is re qu ired if th e 

ju dg e ha s an y pe cu ni ar y in te re st w ha teve r. In oth er ci rc ui ts , th e ju dge may si t 

un less it ap pe ar s th a t hi s de cis ion could ha ve a sign ific an t eff ect up on th e va lu e 

of hi s in te re st. In st il l oth er circ ui ts, if th e ju dge disc lose s his in te re st in th e 

ca se he may ne ve rthe le ss h e a r it, prov ided th e part ie s w ai ve an y ob jection to his 

si ttin g. Th e re su lt is th a t in bor de rlin e ca se s a ju dge m ust de cid e th e di sq ua lifica tion issu e a t hi s pe ril, w ith th e po ss ib ility th a t if he de cide d to s it he may lie 

su bj ec t to cr itic ism or th a t pu blic confi dence in th e fe der al ju dic ia l sy ste m may 

be weakened.

Th e pro imsed am en dm en t to section 455 wou ld pr ov id e g re ate r unif or m ity by 

el im in at in g th e “s ub sta n ti al in te re st ” st andard . Mo reov er, it wo uld no t per m it 

a w ai ve r of di sq ua lifica tion by th e li ti gants on th is p art ic u la r issue. S. 1064 wo uld 

also c la rify an d im prov e th e e xis ting law in oth er resp ec ts.

Su bsec tio n (a ) of prop os ed section 455. co nta in s th e ge ne ra l pr ov ision th a t 

“any ju stic e, ju dg e or m ag is tr ate of th e I ’nite d (Sta tes sh al l di sq ua lify hi m se lf 

in an y proc ee ding in which his im part ia li ty m ig ht re as on ab ly be qu es tion ed .” 

T his se ts up a more ob je ct iv e st an d ard th an th e ex is ti ng sta tu te w he re th e 

ju dge' s own op ini on is th e de cidi ng st andard . Disqu al ific at io n unde r su bs ec tio n 

(a ) ma y be wa ive d. (S ee prop os ed s ec tio n 455(e ). )

On th e whole, w ith few ex ce ptions , S. 1064 tr acks th e ne w Cod e of Ju dic ia l 

Con du ct wh ich was un an im ou sly ap pr ov ed by th e Hou se of Deleg ates of th e 

American B ar Assoc iatio n in Aug us t 1972, an d ad op te d fo r Fed er al ju dg es by 

th e Ju dic ia l Co nfere nc e of th e United S ta te s in April 1973. By m ak in g bo th th e 

sta tu to ry an d et hi ca l st an d ard s of c on du ct fo r ju dge s v ir tu all y id en tica l, Fed er al 

ju dg es wo uld no long er be su bj ec t to dua l st an d ard s go ve rn in g th eir qu alific ati ons to sit. in a p art ic u la r proceeding . S. 1064 di ffer s sl ig ht ly from th e Code of 

Ju d ic ia l Eth ic s in th a t S. 1064 wo uld no t perm it w ai ver of eit h er fina nc ial in te res t or ki ns hi p w ithin th e th ir d de gr ee as gr ou nd s fo r disq ua lif icat io n, w her ea s 

pr ov isio n is mad e fo r “r e m it ta l” of di sq ua lifica tion in th os e si tu ati ons by Ca no n 

3 D of th e Cod e of Ju d ic ia l Ethics. “T he ra ti onale h ere is th a t th es e are tw o
92

instances in which the public at large would feel th at a judge, most certainly 

should disqualify himself.” Senator Burdick, 119 Con. Rec. S. 18682, Oct. 4, 1973 

(Daily Ed.).

S. 1064 represents a salut ary advance in tlie development of the adminis tration of justice. However, consideration should be given to adding a provision such 

as is embodied in 28 U.S.C. 144 to assure th at applications for disqualification 

shall be timely made so as to preve nt applications for disqualification from being 

filed near the end of a trial when the underlying f acts were known long before.

The Department of J ust ice recommends e nactment of this legislation, amended 

as suggested above.

The Office of Management and Budget has advised th at the re is no objection 

to the submission of this report from the standpoint of the Adm inistration's 

program.

Sincerely,

W. Vin c e n t R akest raw, 

Assis tan t Attorney General.

[Su bsequent to the he ar in g the follow ing lette r fro m the Ad ministrat iv e Office of the U.S. Co urt s was received by th e sub com mittee:]

Administrative Office of the

United States Court, 

Washington, D.C., May 23, 1974.

Hon. Peter W. Rodino, Jr .,

Chairman, Committee on the Judiciary, House of Representatives,

Washington, D.C.

Dear Mr. Chairman : Th is is in furth er reference to yo ur letter of November 5, 

1973 transm itting for an expression of views S. 1064, a bill to improve judicia l 

mach inery by amending tit le 28, United States Code, to broaden and clarify 

the grounds for judicia l disqualification. As I indicated in my letter of November 7th, this bill has not been considered by the Judicial Conference of the United 

States. However, it now has been referred to the Judicia l Conference Joint Committee on the Code of Jud ici al Conduct for United States Judges for its consideration and report to the Conference at its next session in September.

As you know the Jud icial Conference in April 1973 adopted the American 

Bar Association’s Code of Jud icial Conduct, with certain modifications, althou gh Canon 3, relatin g to judicia l disqualification, was adopted without any 

modification whatsoever. The Conference resolution approving the Code fu rth er 

provided th at any s tat ute o r previous resolution of th e Judicial Conference which 

was less restrictive tha n the new Code would not be applicable, and th at any 

such statute which was less restric tive would be superseded by the s tricte r p rovisions of the Code.

The Senate Jud icia ry Committee report on the bill, S. Rept. 93-419, is not 

clear on this point. The rep ort seems to indicate that the less restrictive provisions of the present statute, 28 U.S.C. 455, govern. Actually, as between the 

present sta tut e and Canon 3, the more restrictive provisions of the Code govern. 

Thus the provisions of Canon 3 of the Code of Judicial Conduct, which would be 

written into the statute by S. 1064, are already in full force and effect in the 

federal judiciary by vir tue of the adoption of the Code by the Judicial Conference. Whether it is now necessary or desirable to have Canon 3 written 

into a sta tut e is one of the questions to be considered by the J udicial Conference 

Committee.

I will be pleased to tra nsmi t to you the views of the Federal judiciary on this 

matter as soon as the Jud icial Conference has considered it in September. 

Sincerely yours,

Rowland F. Kirks,

Director.

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