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sional pride our judges take in their work. With respect to recruitment, we have, of course, had to rely on the available OPM certifications which rather limit and restrict the Chief Judge's selection process.

24. As to ALJ pay, why should the primarily GS-15 be accorded preferential treatment in pay matters not accorded key Government career executives also affected by pay ceilings?

Answer:

Whether or not ALJs should or should not be in the general pay schedule is a subject matter which I believe deserves careful and separate consideration and treatment. I see little relationship between this question and the proposed legislation.

25. Judge Fauver has testified that a "mini-corps" of ALJS

administered by OPM/ACUS is needed. How many ALJS are on temporary assignment now? How often would a need for temporary judges occur-enough to justify such a mixed arrangement of agency/pool ALJs?

Answer: This question also raises a major policy question. The ultimate question is whether the present system of assigning ALJS to separate Agencies and Departments should be retained or whether the administrative process would be better served by a totally independent, separate, and unified ALJ corps. While I have on several occasions expressed my opinion that an independent and separately administered unified ALJ corps would be a preferable and more economical system, I believe this matter to be of such scope and importance as to warrant independent study and treatment.

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Certainly, it cannot be answered in response to a single question.

In any event, I respectfully disagree with a concept of a

"mini-corps."

Such a resolution would, in my opinion, not resolve the basic and certainly most important question of whether the unified ALJ corps concept should be instituted. Moreover, not only does so serious a question warrant independent study and consideration, the question, in my opinion, has no real relationship to the presently proposed legislation.

Senator LEVIN. You may proceed, Judge Fauver.

TESTIMONY OF JUDGE WILLIAM FAUVER, CHAIRMAN, LEGISLATIVE COMMITTEE, THE FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE

Judge FAUVER. Mr. Chairman, I am William Fauver, chairman of the Legislative Committee and past president of the Federal Administrative Law Judges Conference. We have submitted a written statement of our conference which reflects the best thinking of our judges across the country as to the ways in which this important legislation may be strengthened so as to improve the fairness, quality, and efficiency of the regulatory process. Once we get over this extremely difficult issue of impending, we think, upon the independence and impartiality of the judge himself, we look forward to working with this committee staff on this 100-page document we have submitted on the many ways we think the bills can be improved.

We applaud the efforts of this committee to improve the regulatory process.

I will simply highlight here the issues that give us particularly deep concern.

We are most concerned with the potentially grave harm to critical adjudicative processes that would result from enactment of the bills' provisions for limited term appointment and evaluation of judges for reappointment, which would give to the Administrator of the Administrative Conference of the United States, a political appointee, the arbitrary and unreviewable power to deny reappointment to sitting judges. We oppose these provisions for the following reasons:

One: They will deprive the parties of a fair hearing before an impartial, independent judge.

Two: They will politicize the judges and affect their decisions by pressure from agencies and special interest groups.

Three: They will lower the qualification of future judges by adversely affecting recruitment.

Four: Finally, they will lower public confidence in the fairness of government and the ability of the American citizens to receive a fair hearing before a Government agency.

On the other hand, the existing system, which is the foundation of the Administrative Procedure Act, has built-in accountability and has built-in evaluation of judges. First, there is thorough screening and merit selection of highly qualified judges on a nonpolitical basis. Second, once a judge takes his position, he is in a fishbowl working environment, in which he is closely observed by highly competing forces-the parties, witnesses, and attorneys who appear before him. Everything he says is on the record. Third, there is review by agencies and by the courts, which provide important built-in evaluations of a judge's decision, his perception and mental skills, as well as hearing room conduct, which are always subject to close scrutiny and examination. All of this feedback strengthens the self-correcting characteristics of the position of administrative law judge. Finally, there is an effective, highly flexible disciplinary system which poses no barrier to detection and disciplinary correction of any judicial misconduct or unacceptable performance.

In light of this sharp contrast between the existing system and the changes proposed, we question the appropriateness of any serious consideration by this committee of the drastic overhauling, indeed, the virtual elimination of the APA's carefully drawn safeguards of judicial independence and impartiality that would be effected by these bills in the absence of any evidence in the record. Reference has been made to the need for an ongoing evaluation of these judges. Let me state that because of the built-in accountability of judges, the built-in evaluation of judges, no judicial system in our country has ever adopted such an ongoing evaluation mechanism. That is, there is no ongoing evaluation of sitting judges in the United States of America to improve performance. We say that we should look at where the problems are.

We recommend instead of a Parkinsonian enclave of clerks who are going to try to figure out how to evaluate judges, we propose an oversight committee that will operate on a complaint basis-go where the problem is and not create more problems. There is no use bruising every apple in the barrel to find the one or two bad ones. We recommend an oversight committee, based on a model approved by the American Bar Association, and proven by many precedents in the American judicial systems.

First, a complaint is filed which the committee evaluates. Hopefully it can be informally disposed of without a public hearing. But if it cannot, then it will be referred to a disciplinary board.

May I say that the range of cases brought against administrative law judges, covering a spectrum from an office altercation to low productivity, shows that there is no barrier to disciplining administrative law judges.

We commend to this committee the report of the advisory committee to the Supreme Court of New Jersey on the question of judicial evaluation, which appears at 103 New Jersey Law Journal, page 245, May 22 of this year. That committee cautions the Supreme Court of New Jersey that if you want an evaluation of sitting judges not for the purpose of following up a complaint, which is what the present system has, not for the purpose of reappointment, but for the purpose of improving performance, which no system has, we recommend that it be done with the

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greatest of safeguards and that it be under the control of the judiciary.

In closing, let me say I think that there is an important lesson that may come from these hearings. I think we might consider, and we urge upon you to consider, a legislative standard. We have been put to considerable cost in preparing for these hearings. We have looked through this record to see where the case is for attacking this judgeship by having a limited term and giving arbitrary power to remove without cause. Where is the case for this ongoing evaluation? It is not in this record. We say if a case can't be made for a bill, it shouldn't be based on rumors or speculation. We see no basis in the record before you to change drastically the foundation of the Administrative Procedure Act.

Senator LEVIN. Before I ask Judge Gordon what is the ongoing evaluation, I am going to have to tell you that rollcall is now going on. I am going to have to interrupt this and come back, or I am going to have to wind up in approximately 7.26 minutes.

Where is the case for ongoing evaluation of sitting judges?
Mr. GORDON. Where is the case?

Senator LEVIN. I think that is the question Judge Fauver is raising, saying there is no case. You testified quite strongly that is the most important part, that the limited appointment is not as important as ongoing evaluation. Where is the case?

Mr. GORDON. The ongoing evaluation has always existed, Mr. Chairman. It exists, however, in my estimation, in a vacuum at the present time. At the present time I suppose any party, or any administrator, or any chief judge could go before the Civil Service Commission and now the Office of Personnel Management and complain that a sitting judge is not performing, that either he is not meeting time standards or production standards. But the system exists in principle only. Over the years it has never been exercised. Perhaps it has never been exercised because there has not been any direction of how it is to be exercised, what criteria are to be used. I think there has been a great fear that anybody who ever used that system would attack the independence of a judge. And to my judgment, it has been used less than possibly the impeachment process of the Constitution for the Federal judiciary. I submit that despite the fact it exists, the lack of use has proven its lack of utility. I welcome this bill providing, by congressional action and directive, a system whereby this kind of ongoing review can take place.

I reiterate it is of the utmost necessity that the people who are going to be in charge of such an ongoing review, that it be made eminently clear that the standards to be used are objective standards. What do I mean by objective? I mean if you use productivity, that is an objective standard. Timeliness of decision is an objective standard. There will be gray areas. For example, if a judge decides cases consistently, and it becomes eminently clear he doesn't know the law, there you get into difficulty; it may be subjective.

Despite the fact these difficulties would arise, I think a congressional mandate can come down that objective standards are to be used. In that respect I can only reiterate I think the entire corps would benefit by it; people who appear before the corps would

benefit by it. It doesn't require reevaluation only after 7 or 10 years. If a person can't perform get him out.

Senator LEVIN. You have indicated, Judge Gordon, that you feel the ongoing evaluations are more important than fixed terms. You have also indicated the need for objective standards, and the decision being in the hands of more than one person at the end of that term. On balance, do you favor a fixed term? In other words, it has problems, as you have pointed out, in terms of recruitment and you mentioned a few other things. You also suggested if we are going to have it, that we not expect it to do as much as the ongoing evaluation, and that there are certain things that should be done at the end. I am not entirely clear.

Mr. GORDON. I question the efficacy of a fixed term as an evaluation of a judge. However, yes, it can have some beneficial effects. For example, there was a time when we had 70 years mandatory retirement age, and there have been a number of instances where a judge became rather less productive than he should be, but he was 2 years from retirement and you knew that the moment he reaches 70 the matter will take care of itself. We don't have that anymore. Now a judge can stay around as long as he is alive. In this sense, I think the 7- or 10-year fixed term could be salutory. But is it a really effective system for weeding out the incompetent judge? No, I don't think it is.

Senator LEVIN. You don't think it is easier not to reappoint someone than it is to remove someone?

Mr. GORDON. Yes, it is. But the failure to reappoint under this system takes on a certain degree of anonymity. Up to now it was the chief judge who had to come to a sitting judge and say, "You know, you can't quite cut the mustard," and that is a very, very difficult thing to do. But there is the anonymity of the committee, as these review committees are established, that it becomes a great deal easier and a great deal less biased. There again, I was very encouraged by the fact both bills provided these_committees be made up of in excess of 50 percent sitting judges. To me, that is a very meaningful safeguard.

Senator LEVIN. I have got many questions to ask you.
Mr. GORDON. I will be at your disposal.

Senator LEVIN. I was referring to all of you. I am going to have to leave now for a rollcall. I have just received message it is not going to be practical for me to come back. Therefore, I am going to submit these to you, and any other questions which members of the committee may have, in writing. We would appreciate it if you would respond to these. It would be very helpful. The issues here are very important for administrative justice in this country, as administrative law becomes more and more important. I believe that the Senate is highly sensitive to the complexity of these issues, the sensitivity, the need for independence, the need for accountability in trying to draw the correct balance. We will look forward to answers to the questions, which I will submit to you. I only regret that the five buzzers have rung and I must be on my way, because I have found this testimony very helpful. Further questions and answers, reaction and interaction between you, I think will be most illuminating.

We all thank you for coming, and your testimony will be included in the record.

[The prepared statement of Mr. Fauver follows:]