MINORITY VIEWS OF MR. MICHENER This bill authorizes the President to appoint 6 additional circuit judges at a salary of $12,500 each per annum; 1 additional associate justice of the United States Court of Appeals for the District of Columbia at a salary of $12,500 per annum; 15 additional district judges at $10,000 each per annum; 3 additional associate justices of the District Court for the District of Columbia at a salary of $10,000 each per annum, making a total of 25 new judges, at a cost of $267,500 per annum for salaries alone. In addition, two existing temporary District judgeships are made permanent. After these new judges take the oath of office, they will serve "during good behavior," which means for life unless removed by impeachment. They have the privilege of retiring when they have served 10 years on the court and have reached the age of 70 years. They retire upon full pay. RESPONSIBILITY OF CONGRESS It is the duty of the Congress to provide sufficient personnel to guarantee judicial efficiency. Partisan politics should at no time enter the judicial structure. Under the law, the President appoints the judges, while the Senate confirms the appointments. Under our two-party system, the Executive usually appoints judges from the ranks of his own political party. In these circumstances, it is very difficult to eliminate the political factor entirely. There are always those politicians who are seeking additional patronage and additional political appointments for "deserving" partisans. Recognizing this fact, the Congress in 1922 (U. S. Code, title 28, sec. 218) enacted a law the purpose of which is to remove from partisan influence, so far as possible, the question as to when additional judges are actually needed. This law sets up a Judicial Conference, consisting of the senior circuit judge of each judicial circuit, presided over by the Chief Justice, and convened on the last Monday in September in each year in the city of Washington. Each member of this conference is "to advise as to the needs of his circuit and as to any matters in respect of which the administration of justice in the courts of the United States may be improved." The law further provides: The senior district judge of each United States district court, on or before the 1st day of August in each year, shall prepare and submit to the senior circuit judge of the judicial circuit in which said district is situated, a report setting forth the condition of business in said district court, including the number and character of cases on the docket, the business in arrears, and cases disposed of, and such other facts pertinent to the business dispatched and pending as said district judge may deem proper, together with recommendations as to the need of additional judicial assistance for the disposal of business for the year ensuing. Said reports shall be laid before the conference herein provided by said senior circuit judge, or, in his absence, by the judge representing the circuit at the conference, together with such recommendations as he may deem proper. The Chief Justice, or, in his absence, the senior associate justice, shall be the presiding officer of the conference. Said conference shall make a comprehensive survey of the condition of business in the assignment and transfer of judges to or from circuits or districts where the state of the docket or condition of business indicates the need therefor, and shall submit such suggestions to the various courts as may seem in the interest of uniformity and expedition of business. The Attorney General shall, upon request of the Chief Justice, report to said conference on matters relating to the business of the several courts of the United States. RECOMMENDATIONS OF JUDICIAL CONFERENCE Pursuant to the above law, this nonpartisan judicial group convened in Washington on September 23, 1937, and continued in session for 3 days. At the conclusion of the session, a report in detail was filed with the Attorney General and is found on page 12 of the Annual Report of the Attorney General for 1937, which report was before the Judiciary Committee during its deliberation on the pending bill. As shown in the report, the Attorney General and the Solicitor General, with their aides, were present at the opening of the conference, and a reading of the report shows that the Attorney General and his aides presented in extencio such facts as he considered pertinent in determining the necessity for the appointment of additional Federal judges. The Judicial Conference finally concluded that 16 additional judges were advisable, to make efficient the administration of justice, as follows (hearings, p. 71): One circuit judge for the second circuit. One circuit judge for the seventh circuit. One district judge for the northern district of Georgia. The report continues as follows: In the remaining 75 districts it is the opinion of the conference that no additional district judges are now required. All of the above judges recommended by the Judicial Conference, with the exception of one judge for the District of Kansas, are included in H. R. 10014, reported favorably by the Judiciary Committee. RECOMMENDATIONS OF ATTORNEY GENERAL In addition to the nonpartisan recommendation of the Judicial Conference, the Attorney General on his own motion recommended 11 additional appointments as follows (hearings p. 71): One associate justice for the United States Court of Appeals for the District of Columbia. One district judge for the eastern and western districts of Arkansas. One district judge for the northern district of California. One district judge for the southern district of Florida or jointly for the northern and southern districts of Florida. One district judge for the northern district of Illinois. One district judge for the southern district of New York. One district judge for the eastern, middle, and western districts of Tennessee. The recommendations of the Attorney General, with the exception of judges for Florida and the eastern district of Pennsylvania are included by the Judiciary Committee in H. R. 10014. NOT RECOMMENDED BY JUDICIAL CONFERENCE OR ATTORNEY GENERAL There is also included in H. R. 10014 two additional circuit judges for the third judicial circuit. As shown by the hearings, these additional judges are recommended neither by the Judicial Conference or the Attorney General. I will discuss this matter a little later. I was a member of the committee when the Judicial Conference was established and the conference has rendered a distinct service to the Federal judiciary and to the litigants in Federal courts. Where the recommendations of the conference have been followed, no political judgeships have been created, and I cannot recall a single instance where time has not proved the wisdom of the conference recommendations. The 16 judges listed above, having the approval of the Judicial Conference, also have the approval of the Attorney General, plus the unanimous approval, I believe, of the Judiciary Committee. I, therefore, endorse that portion of H. R. 10014 as advisable legislation at this time. 11 ADDITIONAL JUDGES UNNECESSARY I am opposed to the appointment of all other judges provided for in this bill, because I do not believe that the facts presented to the committee show necessity for the appointments at this time. None of these appointments, not recommended by the Judicial Conference, can be justified unless we accept as controlling the recitation of complicated tables and figures showing the number of cases on the dockets in the respective courts. The number of cases on the docket may be a factor but is not the sole criterion by which to determine whether or not an additional judge is required. Neither is the age of the case on the docket indicative of the possibility of any litigant getting immediate or early trial of his case. I can well illustrate what I mean by quoting the Attorney General's report for 1937, at page 2, where he is discussing "current conditions" in the courts. He says: For example, in New Jersey and in the western district of Wisconsin over 60 percent of the pending cases are more than 2 years old, while in the northern district of Indiana and in the southern district of Illinois this is true of over 59 percent of the pending cases. In Delaware this is true of over 46 percent of the cases; in Vermont of over 42 percent; in the western district of Missouri of over 39 percent. Now from this statement it would appear that the districts to which the Attorney General referred are districts in which additional judges are certainly needed, for the reason that there are cases 2 years old on the docket. The Judicial Conference had before it the Attorney General's statement and made its own investigation as to the con ditions in those districts, and did not recommend a single additional judge in those districts. The conference knew that the difficulty was not lack of judges. The Attorney General did not recommend additional judges in any of these districts except the New Jersey district. He also recognized that the condition of the docket cannot be relied upon as conclusive proof that the district needs an additional judge. The number of cases on the docket means little so far as the judge's time is concerned. The type of case is what counts. It may take but one hour to try a bankruptcy case, while the trial of a patent case may require months. The majority report will stress population and area of judicial districts. Of course these are factors. However, the real test is whether or not a litigant in the district can secure expeditious disposition of matters in the court. This bill in no way affects the places where court is to be held. The Judicial Conference was in a position to give practical, not theoretical, answer as to the requirements of the respective districts. The majority report relies more upon pending cases on dockets and census reports as to population. COURT OF APPEALS OF THE DISTRICT OF COLUMBIA The Judicial Conference, after recommending additional judges for the second, fifth, sixth, and seventh circuits, recommended: In six of the circuits and in the Circuit Court of Appeals for the District of Columbia no additional judges are now required. (Report of Attorney General 1937, p. 15.) The Court of Appeals for the District of Columbia consists of five judges. Four judges are now sitting, three of whom have been recently appointed. Two of the judges recently retired have been in poor health for more than a year before retiring, and were unable to carry their usual case load. One of these judges retired in September 1937 and the vacancy was not filled until February 1938. Judge Robb retired on November 15, 1937, and our colleague, the gentleman from Kentucky, Mr. Fred M. Vinson, was confirmed by the Senate on December 9, 1937, but has not yet assumed the duties of his office. An illustration of what has been happening on the bench is the case of Judge Robb who, because of ill health, was only able to write 20 opinions during the past year, whereas he usually wrote more than 40 opinions a year. The same was true of Judge Van Orsdel. When Judge Vinson becomes an active member of the court, an additional judge will have been added. During the fiscal year ending June 30, 1937, 284 cases were filed, 292 terminated, leaving 148 pending at the end of the year. In 1936, 352 cases were filed, 305 terminated, with 156 pending at the end of the fiscal year. Progress was, therefore, made even though for all practical purposes a three-man court was functioning most of the time. With five active judges on the bench, it would seem that the recommendation of the Judicial Conference should be conclusive. THIRD JUDICIAL CIRCUIT The Judicial Conference recommended that no additional judge was required in the third judicial circuit at this time (Report of Attorney General 1937, p. 15, supra). Mr. Joseph B. Keenan, Assistant Attorney General, appeared before the committee in behalf of the judges recommended by the Attorney General. Discussing the third circuit, Mr. Keenan said: No recommendation has been made, and I am not making one at this time. Proceeding further, Mr. Keenan said: of those judges in the third circuit, one judge has reached the age of 83 years, one judge 78 years, one judge 71 years, another judge is 68, approaching 69, and that particular judge has been unable to sit on the bench for the past 2 years in any type of case. The judge of 77 has been ill in bed some time past and the other two judges are in my opinion able and outstanding jurists. Now, with the conditions outlined by Mr. Keenan, and if judges are needed, I am at a loss to understand why the Department of Justice has not remedied the situation, especially in view of the fact that Mr. Keenan apparently did not want to make any recommendation to the committee. When it is considered that the third circuit includes Pennsylvania, Delaware, and New Jersey, where many corporations have their home, including corporations established by governmental agencies during the last few years, and inasmuch as there is law on the statute books giving the President the right to act if the conditions are as indicated by Mr. Keenan, then it would seem that advantage would be taken of that law. I call attention to title 28, section 375, United States Code, which reads in part as follows: In the event any circuit judge, or district judge, having so held a commission or commissions at least ten years, continuously or otherwise, and having attained the age of seventy years as aforesaid, shall nevertheless remain in office, and not resign or retire as aforesaid, the President, if he finds any such judge is unable to discharge efficiently all the duties of his office by reason of mental or physical disability of permanent character, may, when necessary for the efficient dispatch of business, appoint, by and with the advice and consent of the Senate, an additional circuit judge of the circuit or district judge of the district to which such disabled judge belongs. And the judge so retiring voluntarily, or whose mental or physical condition caused the President to appoint an additional judge, shall be held and treated as if junior in commission to the remaining judges of said court, who shall, in the order of the seniority of their respective commissions, exercise such powers and perform such duties as by law may be incident to seniority. There is no question but that under this statute it is unnecessary for the Congress to enact section 3 of this bill, because in section 3. the Congress is asked to do exactly that which the President has authority to do under the above statute. If the conditions are not such as to warrant the President in assuming responsibility, then why should Congress be asked to take this action? There is no recommendation_for this circuit pending before the committee. A member of the Judiciary Committee made a "confidential" investigation as to this circuit and made a "confidential" report to the subcommittee. I do not believe that the necessity for Federal judges should be based on anything but facts duly published, and I, therefore, believe that section 3 should be stricken from the bill. EIGHT DISTRICT JUDGES UNNECESSARY The Judicial Conference has recommended against the eight district judges asked for by the Attorney General (hearings, p. 71, supra). This recommendation was made in September and conditions have not changed since that time to warrant these new judges. The Judi |