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me now lay that myth to rest. There is no doubt in my mind that there are many women and minorities who meet and exceed the present criteria.

I should also say, however, that in my opinion the selection and examination process is heavily weighted to benefit the government attorney, whether male or female. If anything, the standard should require a broader legal experience of a higher level.

Active recruitment of qualified personnel should always be encouraged, but to suggest that such recruitment in the case of women and minorities should or could include some lesser standard of competition is both demeaning and insulting to women in the legal profession.

One should acquire a position such as administrative law judge
with pride and honor because of notable professional accom-
plishment and not as a bone tossed by a congressional committee
to right some real or imaginary past wrong.

As a woman in the administrative law judge corps I have found
that a fair opportunity to compete is available to us and
for my part that is all that women and minorities have ever
sought.

Doma. Coming

Doris A. Coonrod
Administrative Law Judge

DAC/hf

Senator LEVIN. Judge Gordon, you may proceed.

TESTIMONY OF JUDGE H. STEPHAN GORDON, CHIEF ADMINISTRATIVE LAW JUDGE, U.S. DEPARTMENT OF LABOR Mr. GORDON. Mr. Chairman, I am pleased to have been invited before the committee to testify concerning the administrative law judge aspects of S. 262 and S. 755.

Permit me to state briefly my background. For approximately 22 years, I have been an attorney with the National Labor Relations Board in a variety of positions. For 10 years I was Associate General Counsel in charge of the Board's field operation. From that vantage point, I observed the administrative process as an advocate prosecutor and administrator. During the past 8 years, I have served as chief administrative law judge at the Department of Labor, which administers a variety of programs involving cases heard and decided by a number of administrative law judges. In that position I have been able to observe the administrative process from the more sheltered judges' point of view.

From both aspects, I am convinced that effective judicial administration is an absolute necessity if there is to be a timely flow of decisions and a reasonable allocation of work. It is no mere truism to say that justice delayed is justice denied. Unfortunately, these delays occur too frequently and come to plaque the judicial process in all its phases.

The principle of effective judicial administration has gained an increased following over the past 15 years, and few judicial forums

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fail to recognize the absolute need for modern administrative and management techniques as an integral part of the judicial process. With respect to the two bills before this committee, I would like to address the issues conceptually rather than in their detailed implementation.

I firmly support the concept that administrative law judges should, like all other employees, be accountable for the quantity and quality of work they produce, and that like all other Federal employees, they should be held accountable to reasonable standards of production, attendance, and all the various conditions of employment which are commonplace to Government service.

Having said this, I would like to stress with equal fervor my overriding and paramount concern that whatever system is adopted to bring about these results, that such system preserve, indeed, that it jealously guard and even strengthen the decisional integrity and independence of the individual judges. Both the judges, as well as the parties appearing before them, whether they are private litigants or governmental entities, must know as a certainty that the presiding judge is free to exercise his best independent judgement. Anything less would effectively undermine the judicial process and the Administrative Procedures Act, which has served the Nation well for many years.

With respect to both bills before this committee, I also firmly believe that they fully intend to protect this decisional integrity. However, in creating entities which will be charged with implementing the vital sections of the bills dealing with performance review, I would urge that whatever bill emerges from the committee, that the legislation make it unequivocally clear that the standards by which a judge's performance is to be measured must be objective standards rather than subjective in nature. I realize that no legislation could set forth in its body all the criteria and standards to be applied for such measurement. But a general statutory admonition that these criteria and standards must be objective, rather than subjective, in nature would go a long way both in providing guidance to the Administrative Conference review committees, as well as to engender confidence in the administrative law judge himself and parties appearing before him. Both bills provide for establishment of review committees composed of more than 50 percent of sitting administrative law judges. This assurance that the reviews and evaluations will be conducted by a peer group is laudable and reassuring. It recognizes the legitimate concerns of administrative law judges that the decisional independence is not under attack. Permit me to commend you for this inclusion and sensitivity for the judge's deep and legitimate concern.

Case management and work measurement are an absolute necessity and an integral part of the administrative law process. As the system is presently administered, I know of precious little oversight, even though some contend that the system had in the old Civil Service Commission and now in the Office of Personnel Management, the necessary tools for effective oversight and remedial action when such action becomes necessary. Personally, I know of no instance where these elusive powers have ever been exercised. This does not mean that they have never been needed.

I want to stress this is in no way an indictment of the administrative law judge corps. On the contrary, it has been my personal experience that the vast majority of administrative law judges I have known are mature and dedicated professionals, who take pride in their work and often perform their task well, despite serious budgetary and personnel limitations. But to pretend that any system as diverse and voluminous as administrative law is made up exclusively of such paragons of professionals so as to obviate a need for managerial oversight is so pollyannish as to invite incredulity. Therefore, the issue whether the present system does contain a mechanism for effective oversight is, in my opinion, moot. Its very lack of use over these many years is its own indictment. The system for periodic as well as ongoing review contemplated in both bills and the provisions in both bills for a specific systematic action to be taken in cases of unacceptable performance are, I believe, salutory. They simply recognize that chief judges specifically and administrators generally have an affirmative duty and responsibility to take corrective action where such steps be

come necessary.

The proposed system should also reassure the productive judges that they need not carry the load or the stigma for an unproductive colleague. I am more concerned about the image of the corps in its entirety, than I am about the situations of a few who cannot or will not meet applicable standards. Let me also point out is it always those few who stand out and make the news and threaten the integrity of the many.

Both bills provide for a fixed-term appointment, S. 755 for seven years and S. 262 for 10 years. Each bill provides for mandatory term-ending evaluation to determine affirmative qualifications for reappointment. Each bill also provides for discretionary review during the term. I generally support these concepts as part of the review process. However, whether the term is 7 years or 10 years, or is even expressed in a term at all is, in my opinion, far less important than the ongoing review process itself. I consider the ongoing discretionary review as the most essential and most beneficial aspect of the bill. Indeed, if the ongoing and discretionary review process can be made to work, as I believe it can be under the scheme outlined in these bills, it may well obviate the necessity for term appointments. If a judge does indeed become so incapacitated that, for whatever reason, he cannot or will not perform his functions, then it should not be necessary to wait 7 years or 10 years or 2 years to take corrective action. An administrator who takes his responsibilities seriously must, by necessity, step in at an early stage and take correct action. If the rare incompetent can be dismissed in a timely fashion, I submit it must necessarily follow that those judges who remain, are indeed qualified, and their reappointment would become practically automatic and the end of term review would be more or less a formality. Until we know however, that the discretionary review process is indeed being utilized, I would, as a safeguard, retain the end-of-term evaulation.

However, I would like to make one point which was not included in my written statement. A further review of the language convinces me that a provision should be inserted for a review process if the review commission certifies that a judge is eligible for recer

tification after a 7- or 10-year term and the chairman of the Administrative Conference disagrees. Some appeals or review proceeding should be provided for if the chairman disagrees with the recommendation of the committee. I think this is particularly important, since the career of this man should not lie in the hands of a single individual-an individual who, incidentally, is appointed by the President and whose term coincides with that of the President.

I think it must also be recognized that setting specific terms for administrative law judges raises other serious problems. Highly qualified attorneys, especially those coming from private practice, may be reluctant to abandon established practices for a position of a fixed term rather than unlimited tenure. Effective recruitement, especially from the private sector, may suffer. If this proves true, there may be an increase of appointments from Government positions to administrative law judges, with the concomitant undesirable result of furthering what has often been referred to as the "incestuous" relationship between agencies and administrative law judges.

One further point I think needs to be made. I note while both bills provide for a form of retreat right to administrative law judges who are not reappointed, S. 755 does not provide for such a right for a person who becomes an administrative law judge after the effective date of the act and who entered the service from a non-Federal position. This strikes me not only as unfair but also as an even more serious impediment to effective recruitment from the private sector, since it may discourage highly qualified persons from applying because they would be reluctant to abandon often lucrative private practice at so vulnerable a state of professional life without an assurance of job security. This may be too large a risk to assume. Extending some form of retreat right to all administrative law judges, whether they join the corps from the private sector or the Federal sector, may not only be more equitable, but may also have the concomitant benefit of broadening the administrative law judge corps.

I would like to make one more point with regard to the term appointments. S. 262 applies the term "appointments" only in the future. S. 755 makes the term appointment applicable to both prospective as well as sitting judges. In view of the fact that presently sitting judges accepted their appointment on the basis of existing working conditions, it appears to be more equitable to continue these conditions of employment and apply the term appointments to those who are appointed after enactment of the legislation. This, I believe, would not only encompass the principles of elementary fairness, but would assuage the concern of many administrative law judges who believe the rules are being unfairly changed in midstream.

This does not mean the system should tolerate incompetence, merely because a judge was appointed prior to enactment of this legislation. I think the discretionary review which I have been stressing, and which is encompassed in both bills, would be applicable to all judges and, in my opinion, would serve as an effective fail-safe system.

Mr. Chairman, I have attempted to touch on some of the highlights of the bills. My statement discusses these issues, as well as others.

In closing, Mr. Chairman, may I say I am keenly aware of the fact that many administrative law judges are very sensitive to any change which they see as an encroachment on their judicial independence. Such concerns should not be dismissed cavalierly. However, sensitivity to these concerns is not incompatible with the recognition of the need for tightening case administration and performance review. In my view, both bills reflect this sensitivity for an independent judiciary in great measure, and with some minor change will reassure one and all that there is no intent to tamper with decisional integrity and independent judgment. With mutual trust, the dual goals, goals of an objective, independent administrative law system as well as the establishment of an objective goal oriented administrative case management system through objective, independent review of administrative law judge qualifications and productivity can be achieved.

Thank you, Mr. Chairman.

Senator LEVIN. Thank you.

[The prepared statement of Mr. Gordon, with attachment, follows:]

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