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"Each jury commissioner appointed on a full-time basis shall receive a salary to be fixed from time to time by the Judicial Conference of the United States at a rate which in the opinion of the Judicial Conference corresponds to that provided by the Classification Act of 1949, as amended, for positions in the executive branch with comparable responsibilities.
“Each jury commissioner shall receive his traveling and subsistence expenses within the limitations prescribed for clerks of districts courts while absent from his designated post of duty on official business.
"(d) Any of the powers or duties conferred upon the chief judge under this section may be delegated by him to another judge of the district: Provided, however, That where part of a district by agreement or order of court is assigned to one particular judge and he customariiy holds court there, as to such part of the district he shall perform the functions and fulfill the duties conferred upon the chief judge in this section.
“(e) This section shall not apply to the District of Columbia.”
SEC. 2. Section 1865 of such title is amended by striking out the words “and may appoint a jury commissioner for each such place" in the second sentence of subsection (a) thereof and inserting a period after the word “district” in such sentence.
Sec. 3. Each jury commissioner holding office on the effective date of this Act shall continue in office until his successor is duly appointed and qualified.
SEC. 4. There are hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary to carry the provisions of this Act into effect.
Sec. 5. The provisions of this Act shall take effect ninety days after the date of approval thereof: Provided, however, That no grand or petit jury sworn prior to the effective date of this Act nor any person called or summoned for jury service, or whose name is on a jury list or has been placed in a box, wheel, or similar device, prior to that date, shall be ineligible to serve if the procedure by which the jury or the individual juror was selected, called, summoned, or by which his name was listed or placed in a box, wheel, or similar device, was in compliance with the law in effect at the time of such action.
SEC. 6. (a) The table of sections at the head of chapter 121 of title 28 of the United States Code is amended by amending items 1864 and 1865 to read as follows: "16574. Jury commission; duties, compensation, and methods of selecting and drawing jurors." *1935. Apportionment within district."
(b) The catchline at the beginning of section 1865 of title 28 of the United States Code is amended to read as follows: " 1865. Apportionment within district."
Senator Ervin. It is not my intention in this statement to deal with possible technical deficiencies of title I or any other provisions of S. 3296. Such problems can be aired during the course of the hearings and resolved in exceutive session. However, I am compelled to mention one point in title I about which I feel very strongly.
As the Attorney General knows, this subcommittee has for some time been engaged in exhaustive investigations into the separation of church and state and into the right to privacy. In this connection, I note the requirement on page 6 of the bill that a prospective Federal juror must fill out a form stating his "name, address, age, sex, education, race, religion, occupation * * The Judicial Conference in 1960 suggested that questions as to race or religion of jurors are impertinent, if not constitutionally objectionable. I would like to state simply and emphatically that the religion of any juror is none of the business of the jury commissioner; it is none of the business of the courts; and it is none of the business of the Justice Department. I intend to make it my business to see that race and religion are not sanctioned by Congress as qualifications for jury service.
In closing my remarks of title I of the administration bill, I reiterate my conviction that the greatest care must be exercised as we consider change in the jury system, lest by our good-intentioned tinkering we adversely affect the quality of Federal justice.
* * *
But if title I must be approached with caution, title II requires even more care and humility on our part. For here we are faced not only with proposals affecting the administration of criminal justice, but also with a critical issue of federalism. Perhaps my colleagues have become bored with warnings that Federal legislation is encroaching upon constitutional and traditional areas of State responsibility. I sincerely hope not, because the constitutional responsibility of the States to administer justice, and the complicated and delicate balance between State and Federal jurisdiction, are among the most important elements of American government.
I am most pleased to welcome to the cause of federalism the prestige of the Chief Justice of the United States, who is not generally suspect as a "State's righter." His recent warnings that the balance of federalism is being threatened by proposed legislation on State juries gives me great hope that the Senate will look closely and critically at the need and propriety of such legislation.
I have spent much of my career arguing for a strong jury system, characterized by integrity and impartiality. No one would maintain that race or religion are appropriate considerations for jury service, and it has been a violation of Federal law for almost 100 years for any person charged with the duty of selecting or summoning a jury panel to discriminate because of race, color or previous condition of servitude.
Remedies are already available, both civil and criminal, to the parties to a case and to the Justice Department when it appears that the State jury selection system is discriminatory on its face or that a fair system has been abused. Title 18 United States Code, section 243 is the statute establishing the Federal criminal offense of jury discrimination. As far as I, the subcommittee staff, or the American Law Division of the Library of Congress can determine, in the 90-year history of this provision it has been used only once-in 1879, in the case of Ex Parte Virginia. Why do we need more laws when the ones we have are not being used? Certainly there is no claim that section 243 is inenforceable. Recent southern Federal and State juries have brought convictions for civil rights crimes. If convictions can be obtained in Federal courts under subsection 241 and subsection 242, then why have prosecutions for jury discrimination not been brought under these statutes and subsection 243? As a matter of fact, officials conspiring to discriminate in the selection of jurors would probably be guilty of violating all three statutes. Until it is demonstrated by clear evidence that present law is inadequate to deal with the problem, I seriously doubt both the necessity and desirability of this legislation.
We should realize, moreover, that title II goes much further than merely to restate the ancient prohibitions against racial discrimination. Far more seriously, it introduces into law a policy of national uniformity in State jury systems, and it is founded upon the basic assumption that Federal administration of State criminal law is valid and a worthy objective.
The Federal rules that would be imposed upon the State legal systems by title II are said to be authorized by the 14th amendment. The fallacy of this assertion, however, is elementary constitutional law. The amendment is prohibitory in nature. It does not require
the States affirmatively to revise their criminal procedures. It does not permit the Congress to establish Federal rules of State criminal procedure. Never before has any source asserted that "equal protection of the laws" permits Federal absorption of the State judicial system. Such a claim is too novel even for the Chief Justice.
I question the desirability of uniformity for its own sake. I consider that the proponents of this kind of legislation have a very heavy burden to discharge if they are to convince us that national policy should supplant State decisions concerning the administration of the civil and criminal jury system.
It appears that at least some 24 States have statutes which on their face violate title II, section 201. Three States bar women from serving, and 16 others seemingly violate it by requiring women to volunteer. Some seven States have property or taxpaying qualifications for service. New York requires $250 of real or personal property.
We may as individuals oppose jury qualifications based upon sex or economic status, upon education or occupation. But do we as legislators in the national body have the right to impose these values upon the States in the face of their contrary views? We must ask ourselves whether these questions are so important that the people of the States, in their wisdom, cannot be trusted to make the decisions on an individual basis.
Congress would show anything but superior wisdom by sanctioning the ill considered and unworkable provisions of section 204. This section imposes a number of discovery obligations which are automatically invoked upon a claim of discrimination in a criminal trial.
The mere assertion of discrimination requires the prosecution to present a full statement of the procedures used in juror selection. In addition, the State jury officials are automatically subject to crossexamination. If there is "some evidence that the assertion of discrimination is valid, "any relevant records and papers used by jury officials in the performance of their duties” must be presented. The bulk of this paperwork, the burden on the State courts will be overwhelming.
Finally, if all this fails to rebut a showing of “probable cause” of discrimination, the burden shifts to the State to disprove the allegation. By so abolishing the salutory and fundamental presumption that officials perform their duties lawfully, this legislation does more than impugn the integrity of local officials—it opens every criminal prosecution in every State to obstruction, delay, and frustration. Í say this because the discrimination that may be asserted is not restricted to race alone. Section 201 bars jury discrimination on the basis of religion, sex, national origin, and economic status, as well. It could change the laws of all States.
I would like to add at this point, so far as I know, this bill represents the first time that the Congress of the United States has been asked to prescribe rules of procedure which must be followed in the courts of the States. It requires that in every case, where counsel for a defendant asserts that there has been discrimination on the ground of race or on the ground of sex or on the ground of economic status, that the jury officials of the county must file a written statement to negative a charge which is supported by nothing other than an assertion. It does violence to the fundamental principle that courts are
not required to pass upon matters when there is no reasonable ground to suppose that the charge has any basis.
I cannot imagine anything which more offends the principle of good Federal-State relationships or which more offends the principle that trials should be speedy and have regard to the merits of the individual case, because this gives authority to raise unmeritorious issues.
Justice Brandeis, one of our Nation's greatest students of the Constitution, once noted that the States are the laboratories of the Republic. Let us be careful not to impose a needless consistency merely because it pleases our sense of legal symmetry. Let us not presume too readily that we in Washington have a monopoly on all the wisdom in the country. Above all, let us not be too eager to sacrifice centuries of experience with the administration of criminal law merely because of a new-found infatuation with sociology.
(At this point Senator Scott entered the hearing room.)
Senator Ervin. Incidentally, this would permit an inquiry into the property holdings of everybody serving upon a jury. It seems to me that we might well let the State courts spend their time in more fruitful inquiries concerning the guilt and innocence of the parties instead of inquiring into the economic status of the persons who are summoned to serve upon the juries in State courts.
Any objective examination of title III must be made in light of the history of titles III, IV, and VI of the 1964 Civil Rights Act. And to make an honest appraisal, the concerted action by the Departments of Justice and Health, Education, and Welfare under that act must be comprehended. These Departments were given statutory tools, the magnitude of which had never before been suggested to the Congress. The unelected officials in these Departments unfortunately accepted their new authority with but one apparent goal in mind to exercise a maximum effort to insure so-called racial balance in public education and public facilities unintended by Congress. It is my belief that too much power was delegated to these officials; even so they have far exceeded their statutory authority.
It was my hope that enforcement of the 1964 act would occur without arbitrary and capricious control over education by the Federal Government and according to the dictates of Congress and the pronouncements of our judiciary. Such has not been the case.
Apparently, few realized that the South would comply with a new law that many people felt was so distasteful. But we put aside our strong feelings and did comply. As a consequence, the Attorney General states that he has not had enough complaints upon which to intervene; the Secretary of Health, Education, and Welfare bas found little discrimination upon which to act under title VI of the 1964 act; and both have observed much advancement in the process of desegregating schools and other public facilities.
It is now proposed that the Attorney General may institute his own actions without a complaint of any kind to insure integration in public education and other facilities. Again he will work in concert with the Secretary of Health, Education, and Welfare in areas where people are obviously living and attending schools in harmony with their neighbors, but where the statistical ratio of white and Negro
fails to meet an arbitrary standard set by the Secretary. In a locality
a in which the ratio differs from some arbitrary standards, the Attorney General may find an individual whose conduct constitutes a "threat to threaten” or a "threat to intimidate." There, I would suppose, the Department will bring an action under title III. The request for this type of authority comes after a very brief and law-abiding experience with the 1964 act. I can only ask, Where have there been efforts to enforce titles III and IV of the 1964 act?
And I might mention that if threats of intimidation are a major concern of the administration, then I suggest that attention be focused on the worst examples of intimidation: the intimidation by pressure groups which apparently forces Federal agencies to give in to increased demands for racial balance; and the intimidation by these agencies of Southern State officials who are forced to conform to the will ofthe pressure groups under threat of a cutoff of funds.
The Attorney General has asserted that his present authority is deficient for three principal reasons, the first of which is the requirement of a written complaint before the Attorney General may sue. And he has not received the complaints necessary to justify the 1964 act. He also asserts that many people do not know how to file a complaint. But as I understand it, the procedures for filing such complaints were established by and are controlled by the Department of Justice. I suggest that this procedure be tailored to fit the needs of those participating.
I would also like to remind the subcommittee that information supplied to me by the U.S. Civil Rights Commission indicates that there are several major organizations providing legal representation to Vegroes and civil rights workers in the South. Where necessary, these services are furnished free of charge. They include: (1) NAACP Legal Defense Fund, (2) Lawyers Constitutional Defense Committee, (3) Lawyers Committee on Civil Rights Under Law, and (4) American Civil Liberties Union.
Certainly if there are grounds for a complaint, at least one of the attorneys employed by these organizations would bring it to the attention of the Justice Department.
The second reason asserted as justification for this new power is the alleged time-consuming and difficult judgment required to determine whether interested parties will be unable to bear the burden of litigation themselves. Yet, the Department of Justice employes over 600 attorneys, each of whom has sufficient training to make this judgment. Surely, attorneys who routinely make decisions concerning complicated antitrust, corporate and tax matters can form an opinion as to the financial ability of a potential litigant.
Finally, it is asserted that school desegregation has generated an increase of violence and intimidation aimed at Negroes who assert their constitutional rights. Quite frankly, I have failed to observe widespread violence except in areas outside the South, such as in Watts, Calif., in Rochester and New York City, and in Philadelphia.
I say this to place in context my comments concerning the granting of new unbridled power to the Attorney General.
(At this point Senator Bayh entered the hearing room.)
Senator Ervin. Under existing law, the Attorney General may institute an action merely upon the receipt of a complaint and upon his certification that the signers are unable to maintain the appro