A Code for Judges

Ever since the fall of Abe Fortas, critics of the Supreme Court have been urging Congress to impose a stiffer code of financial ethics on judges. Last week, at the urging of Chief Justice Earl Warren, the Judicial Conference of the U.S., composed of 25 leading federal judges, beat Congress to the punch by adopting a tough code on its own.

Warren's main objective in rushing adoption of the code was to protect the independence of the U.S. judiciary. Two bills now before Congress would require judges to make financial reports available to the House Judiciary Committee or to the Comptroller General, whose office is controlled by Congress. Until recently, the judges were able to resist such a requirement by noting that neither the executive nor the congressional branch of government required such disclosure from its members. But Congress last year enacted its own code of ethics--however weak--and the judges could no longer complain that they were being singled out unfairly.

As drafted by an eleven-man panel headed by Robert A. Ainsworth Jr. of the Fifth U.S. Circuit Court of Appeals in New Orleans, the new code provides only one narrow loophole. Because several judges protested that the ban on nonjudicial activities was too sweeping, an exception was made for services in the public interest, such as teaching at law schools--provided that approval is obtained from the appropriate judicial council, that the services do not interfere with judicial duties, and that the pay is publicly announced.

Otherwise, the code decrees: "A judge in regular active service shall not accept compensation of any kind, whether in the form of loans, gifts, gratuities, honoraria or otherwise, for services to be performed by him except that provided by law for the performance of his judicial duties." Beginning next year, each judge must also file with the conference an annual statement of investments, other assets, income and liabilities. By September, Judge Ainsworth's panel will draft legislation to "ensure the conference being able to enforce the motions we have passed."

Two Holdouts. Though Ainsworth noted that "our conference has no jurisdiction over the Supreme Court," some Justices are already moving to abide voluntarily by the new rules. William J. Brennan Jr. canceled several lectures, prepared to liquidate his $15,000 share in a Virginia real estate venture, and withdrew from the faculty of the Appellate Judges' Seminar, an annual course at the New York University Law School. Incoming Chief Justice Warren Burger has indicated that he will give up his $2,000-a-year fee as a trustee of the Mayo Foundation.

Justices William O. Douglas and Hugo

L. Black, however, have thus far refused to go along. Though Douglas has resigned from his $12,000-a-year presidency of the Parvin Foundation, his lec ture agent reported that he has not stopped booking speaking engagements.

Douglas and Black contend that the in dependence of the Supreme Court would be threatened if Justices were subject to any sort of overseeing or discipline -- even by fellow jurists.

That point is the subject of intense debate. If a binding code of any kind is to be imposed on the nation's highest court, it will probably have to be en forced by other judges. But then, who is to judge the judges of the judges?

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