LORENZO SCADUTO, who is serving a 64-year sentence for narcotics offenses at the federal penitentiary in Terre Haute, Ind., declined an invitation to travel to Miami last February. The request was in the form of the subpoena from the President's Commission on Organized Crime, which was conducting public hearings on the very subjects on which Mr. Scaduto is an expert. In resisting the subpoena he alleged, among other things, that the commission itself was unconstitutional under the separation of powers doctrine because its membership included two federal judges, Irving Kaufman of the Court of Appeals for the Second Circuit and Potter Stewart, a retired justice of the Supreme Court. This argument was accepted by the U.S. Court of Appeals for the Eleventh Circuit, sitting in Atlanta, which has now ruled that judges may not continue to serve on the commission.
The Justice Department has asked for a rehearing in the case because, if the ruling stands, it will have an impact on a number of advisory panels on which judges have traditionally served. The chief justice, for example, serves by law on the board of regents of the Smithsonian and as a trustee of the National Gallery of Art. Federal judges serve on the National Historical Publications Commission and are slated to fill positions on the new Sentencing Commission created to produce guidelines for federal criminal sentencing.
There are also ample historical precedents for extra-judicial service, and Judge Paul Roney, who dissented on this point, lists some in his opinion: Three chief justices -- John Jay, Oliver Ellsworth and John Marshall -- served simultaneously as ambassador to England, ambassador to France and secretary of state, respectively. Justice Owen Roberts chaired the commission investigating Pearl Harbor, and Justice Robert Jackson was chief counsel for the United States at the Nuremberg trials. Chief Justice Earl Warren headed the commission to investigate the assassination of President Kennedy, and judges in other federal courts have served on commissions investigating crime and violence. In this city, district court judges at one time even appointed the members of the school board.
The American Bar Association's Code of Judicial Conduct specifically states that a judge may engage in nonjudicial activities directed at improving the administration of justice. There is no precedent for the Eleventh Circuit's ruling, and we assume it will be reversed. Nothing in the Constitution specifically requires such a broad prohibition, and it would be too bad if the country were to lose the valuable advice and service of judges in areas outside the courtroom.