[S. 979, 88th Cong., first sess.] A BILL To amend section 332 of title 28, United States Code, in order to provide for the inclusion of a district judge or judges on the judicial council of each circuit Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the first paragraph of section 332 of title 28 of the United States Code is amended to read as follows: "The chief judge of each circuit shall call, at least twice in each year and at such places as he may designate, a council at which he shall preside consisting of (1) the circuit judges for the circuit in regular active service, (2) the district judge in regular active service from such circuit selected as provided in section 331 of this title to serve as a member of the judicial conference of the United States, and (3) in any circuit having five or more circuit judges in regular active service, an additional district judge in regular active service who shall be chosen for a three-year term by the district judges in regular active service of the circuit at the next annual judicial conference of the circuit held after the conference at which the district judge in regular active service is selected to serve as a member of the Judicial Conference of the United States and, excepting in the District of Columbia circuit, such additional district judge shall be from a different district than the district judge then serving as a member of the Judicial Conference of the United States as provided in section 331 of this title. Each member of the council, unless excused by the chief judge, shall attend all sessions of the council." (b) Such section is further amended by adding at the end thereof the following new paragraph: "Each judicial council shall have a secretary, who shall be the clerk of the United States court of appeals." [H.R. 2841, 88th Cong., first sess.] A BILL To amend section 332 of title 28, United States Code, to provide for the inclusion of a district judge or judges on the judicial council of each circuit Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the first paragraph of section 332 of title 28, United States Code, is amended to read as follows: "The chief judge of each circuit shall call, at least twice in each year and at such places as he may designate, a council at which he shall preside consisting of (1) the circuit judges for the circuit in regular active service, (2) the district judge in regular active service from such circuit selected as provided in section 331 of this title to serve as a member of the Judicial Conference of the United States, and (3) in any circuit having five or more circuit judges in regular active service, an additional district judge in regular active service who shall be chosen for a three-year term by the district judges of the circuit in regular active service at the next annual judicial conference of the circuit held after the conference at which the district judge in regular active service is selected to serve as a member of the Judicial Conference of the United States and, except in the District of Columbia circuit, such additional district judge shall be from a different district than the district judge then serving as a member of the Judicial Conference of the United States as provided in section 331 of this title. Each member of the council, unless excused by the chief judge, shall attend all sessions of the council." (b) Such section is further amended by adding at the end thereof the following new paragraph: "Each judicial council shall have a secretary, who shall be the clerk of the United States Court of Appeals." To Judges of United States Courts of Appeals Judges of United States District Courts FEBRUARY 6, 1962. The Chairman of the Subcommittee on Improvements in Judiciary Machinery of the Judiciary Committee of the United States Senate, the Honorable Olin D. Johnston, has requested a report from the Administrative Office as to the extent, if any, that the proposal for providing district judge representation on the judicial councils of the circuits was considered by the Judiciary generally and by the Judicial Conference of the United States in particular. Enclosed for your information is a copy of Senator Johnston's request for the report, dated January 29, 1962, together with the enclosures which accompanied it. Also enclosed is a copy of my report dated February 5, 1962, in response to the Committee's request. Sincerely yours, WARREN OLNEY III, Director. Encls. Senator Johnston's letter of January 29, 1962, and attachments, together with Mr. Olney's reply of February 5, 1962, sent to Chairman and Members of the Judicial Conference with a covery letter on Feb. 5, 1962. Individual letters transmitting Johnston letter and attachments and Mr. Olney's reply sent to: Judge Peirson M. Hall Senator Roman L. Hruska Senator Kenneth B. Keating Senator Carl Hayden Senator Estes Kefauver Senator John L. McClellan Mr. William R. Foley, General Counsel, Judiciary Com. of Senate Mr. Paul J. Cotter Congressman Emanuel Celler Deputy Attorney General White Form letter dated Feb. 6, 1962 to Circuit and District Judges transmitting copies of Johnston letter and Mr. Olney's reply. U.S. SENATE, COMMITTEE ON THE JUDICIARY, January 29, 1962. Hon. WARREN OLNEY III, Director, Administrative Office of the U.S. Courts, DEAR MR. OLNEY: There are enclosed copies of my correspondence with Honorable Peirson M. Hall, Chief Judge of the Southern District of California, and a copy of a letter addressed to Judge Hall by Honorable Sylvester J. Ryan, Chief Judge of the Southern District of New York. The Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary is being requested by Honorable Richard H. Chambers, Chief Judge of the Ninth Circuit, and Honorable J. Edward Lumbard, Chief Judge of the Second Circuit, to recall the bill H.R. 6690 as reported to the Senate by the Committee for the purpose of commencing hearings, and this notwithstanding the fact that the bill was approved last September by the Judicial Conference of the United States. The basis of the request of these individual judges is that the proposal was not adequately discussed or considered by the Judiciary generally or by the Judicial Conference of the United States. The Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary would appreciate receiving a report as to the extent, if any, that the proposal for providing district judge representation on the judicial councils of the circuits was considered by the Judiciary generally and by the Judicial Conference of the United States in particular. Your cooperation in this matter will be very much appreciated. OLIN D. JOHNSTON, Chairman, Subcommittee. Hon. OLIN D. JOHNSTON, ADMINISTRATIVE OFFICE OF THE U.S. Courts, Chairman, Subcommittee on Improvements in the Judiciary Machinery, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR JOHNSTON: Your letter of January 29, 1962, written as Chairman of the Subcommittee on Improvements in Judiciary Machinery of the Committee on the Judiciary, requests a report to the Subcommittee as to the extent, if any. that the proposal for providing district judge representation on the judicial councils of the circuits was considered by the Judiciary generally and by the Judicial Conference of the United States in particular. Your letter states that the Subcommittee is being requested by Honorable Richard H. Chambers, Chief Judge of the Ninth Circuit, and Honorable J. Edward Lumbard, Chief Judge of the Second Circuit, to recall the bill H.R. 6690 as reported to the Senate by the Committee for the purpose of commencing hearings, and this notwithstanding the fact that the bill was approved last September by the Judical Conference of the United States. The basis of the request of these individual judges, your letter states, is that the proposal was not adequately discussed or considered by the Judiciary generally or by the Judicial Conference of the United States. As to the extent that the Judiciary generally has considered the proposal for district judge representation on the judicial councils of the circuits, the following is of record: The idea of including district judges on the judicial councils of the circuits was discussed in the Judiciary even before the enactment of the Administrative Office Act of 1939 and when the creation of judicial councils was first being considered. At the meeting of the Conference of Senior Circuit Judges (later renamed the Judicial Conference of the United States) in September 1938, Chief Justice Hughes first advanced the thought that there should be in each circuit an organization which would have direct and immediate responsibility with regard to the judicial work in that circuit. With respect to its composition he said: "My suggestion for your consideration is that there should be in each Circuit a judicial council. The composition of that council is a matter for consideration. My own thought would be-merely to get something started-that there should be a judicial council consisting of the circuit judges and district judges to the extent that the services of the latter would be practicable. In a number of the districts there are so many district judges that it may be impracticable to have all the district judges as members of that council as a working and functioning body. The method of selection perhaps might be provided on the basis of seniority, a certain number of the senior district judges to be united with the circuit judges as constituting the judicial council for the circuit." It would appear that the members of the Conference of Senior Circuit Judges agreed unanimously with these views, but concluded that it was prudent first to get the judicial circuit councils established with circuit judges and then, after experience with their operation and effectiveness, to broaden the membership to include district judges if the need for district judge membership was demonstrated. There is nothing in the record to indicate definitely the extent to which district judge membership on judicial councils was the subject of general discussion in the Judiciary at that time, and there are few judges still in service who were on the Federal bench when this took place. However, the record is abundantly clear that the proposal to create judicial councils in virtually all its aspects, particularly their organization and responsibilities, was the subject of very wide discussion in judicial circles. The record shows that in 1956 and 1957 the focus of discussion was on the matter of district judge representation on the Judicial Conference of the United States, but this is not unrelated to district judge representation on the judicial councils and consequently appears to be a relevant part of this report. At its September session in 1956 the Judicial Conference of the United States, after full discussion, approved draft legislation providing for district judge representation on the Judicial Conference in the same number as the membership of circuit judges. In transmitting this legislative proposal to the Congress on behalf of the Judicial Conference of the United States, Mr. Elmore Whitehurst, the Acting Director of the Administrative Office, wrote under date of January 17, 1957: "The Judiciary has voiced overwhelming support of the measure. It has the merit of bringing directly to the Judicial Conference the views of those judges who are daily engaged in the trial of civil and criminal cases and in the administration of the district courts to which so many of the recommendations of the Conference are directed." The Senate Committee on the Judiciary (S. Rept. 874, 85th Cong.) recommended approval of the legislation proposed by the Judicial Conference in the following language: "It can be seen that since many of the recommendations of the Conference deal with judicial matters being handled daily in the district courts throughout the United States, there is merit to the proposition that judges of these district courts should be represented by membership in the Judicial Conference of the United States. Their presence will afford to the Conference the benefit of their experiences in meeting day-to-day problems as expressed on the trial level. This is particularly true with regard to the existing problem of court congestion and delay in litigation in the district courts. The recommendation of the judges who are concerned in these problems daily should prove a valuable source of information to the Conference and should tend to result in an eventual solution." The language from the Senate Report and from Mr. Whitehurst's letter above quoted is notable because, while it was used to support a proposal for district judge representation on the Judicial Conference, it expresses precisely the arguments that have been advanced from the beginning for district judge representation on the judicial councils of the circuits. It cannot be determined, however, from anything on file, to what extent district judge representation on judicial councils was the subject of general discussion in the Judiciary at this time. The Senate Committee on Appropriations, under the Chairmanship of Senator Carl Hayden, in 1958 initiated a broad study into the operation of the United States courts which culminated in a report filed April 28, 1959, entitled "Field Study of the Operations of United States Courts." A copy of this report was mailed to every Federal judge, district as well as circuit. The report became the immediate subject of discussion by Federal judges everywhere, and it is being cited and referred to in judicial circles just as frequently today. Among the more important conclusions of the Field Study of the Operations of United States Courts is the following: "Except for requesting more judgeships, the judicial councils of the respective circuits, with rare exception, have taken little action respecting the condition of the dockets of district courts and the issuance of orders for the effective and expeditious administration of the business of such courts." (Page 80.) "The circuit judicial councils of the circuits should have the same supervisory authority over the courts of appeals and the judges thereof as presently exists by law over district courts and district judges. It might make for more positive administrative direction and coordinated action by the judicial councils if there were some representation from the district courts on these councils." (Page 83.) In its recommendations the Field Study of the Operations of United States Courts stated: "In view of patent weaknesses in the present administrative setup of the judicial system and indications that substantial improvements in the efficiency and economy of operations of the courts could result from changes in present laws, it is recommended that the judiciary and the Congress consider amending such laws as follows: "(c) Place the courts of appeals and the judges thereof under the supervision of the judicial councils of the circuits in the same manner which now prevails with respect to district courts and district judges. "(d) Give district court judges a minority representation on the judicial councils of the circuits." (Pages 84a and 84b.) The conclusion of the Field Study above quoted as to the ineffectiveness of the judicial councils of the circuits as now constituted and the recommendation that they be reconstituted with district judge membership and the same authority over courts of appeals that they now have over district courts, have been the subject of a great amount of discussion in the Judiciary ever since. It is doubtful that there has been any circuit in the Federal system that has not discussed this part of the Field Study at one or more judicial conferences, and it is certain that it has been very widely discussed among individual judges. Since the report of the Appropriations Committee in the form of the Field Study of the Operations of United States Courts filed in April 1959, the Judicial Conference itself and its committees and subcommittees have on numerous occasions considered the matter of district judge representation on judicial councils, and these proceedings have unquestionably also been discussed among the Judiciary generally, since a copy of the report of the Conference proceedings is sent to every United States judge, and the reports of Conference committees are also widely circulated and discussed at judicial circuit conferences and similar meetings. The full extent of such discussions, however, are not a matter of record. that all of the judges, other than the chief judge of the circuit, who was a member by virtue of his office, were represented by this member. He is not there simply to deal with district court problems; he deals with all of the problems of the judiciary. And the circuit judges, perhaps, form sort of a balancing and stabilizing group in an area where there are a number of perhaps rival district courts, each of whom wishes to have one of their men elected. There is one circuit, for instance, the second, where one district court has more than a majority of all of the district judges in the circuit in it. All of the other district courts in the circuit combined have a less membership than the southern district of New York. And with the circuit judges added, there is a possibility, you see, of taking a little broader view. So it has worked out. I do not think there is any problem there. Senator TYDINGS. Judge Maris, there are judges across the United States who feel that, once appointed to the Federal bench, they have a “lifetime” position, and that they should not be subject to removal by any group, even a group of their fellow judges as in the case at the commission we have proposed, because it might destroy the independence of the judiciary. They say that a commission might inhibit judges from carrying out their responsibilities in a free and independent way, and that a commission would upset the balance of power between and among the executive, judicial, and legislative branches. Do you have any comments on that? Judge MARIS. All I can say is that I do not share that view to any degree whatever. I think judges, like everybody else, ought to maintain a standard of behavior, and if they do not maintain it, they ought to be removed. Senator TYDINGS. But do you not think that, if you had a national commission of judges, the members might try to pressure or influence or dominate other judges, and thus weaken the independence of the Federal judiciary as a whole? Judge MARIS. Well, it is very difficult for me to envisage any such situation as that existing or coming about, when you have a group of five judges appointed by the Chief Justice, rotating in turn, and with definite standards as to matters that they may consider as to what constitutes a lack of good behavior. I think the greater danger is that they would not act, rather than that they would act. The whole problem is to get action in these cases, human nature being what it is and having regard for elderly men, who may have had great powers at one time. The case that you cite from the district of Maryland is a prime example. I am not afraid of action, I am afraid of inaction. Senator TroINGS. But is it not essential that the Federal judiciary be absolutely independent and that the judges be accountable to no one! If this commission were created, even if its members were all judges and even if they operated under the precise standards we have prescribed, ja it not possible that some judge might be inhibited in performing his duties to some extent and that the independence and integrity of the Federal judiciary might be therefore upset? Judge Mars, Theoretically, it may be possible, but it is not a thing that I fear. I agree completely with you that the judiciary should be independent of the executive and legislative branches of the Government, that the whole basis of our Constitution and the only sure |