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GEORGES. GRAHAM, Pennsylvania, Chairman, L.C. DYER, Missouri.

ROBERT Y. THOMAS, Jr., Kentucky
W. D. BOIES, Iowa.


JAMES W. WISE, Georgia.


FRED H. DOMINICK, South Carolina EARL C. MICHENER, Michigan.



PATRICK B. O'SULLIVAN, Connecticut. OSCAR J. LARSON, Minnesota. J. BANKS KURTZ, Pennsylvania.




Wednesday, January 23, 1924. The committee met at 10 o'clock a. m., Hon. George S. Graham (chairman), presiding.

The CHAIRMAN. The first bill scheduled to be heard to-day is H. R. 661, authorizing the President to appoint two additional circuit judges for the eighth circuit. I have a communication here from Hon. Harry B. Hawes, Member of the House, who wishes to have it read to the committee.

(The letter in question was read by the clerk, and appears hereafter.)

The CHAIRMAN. Without objection, the extract from the report of Judge Sanborn will also be read.

(The extract from the report of Judge Sanborn was thereupon read, and appears hereafter.)



The CHAIRMAN. We are ready to hear you, Judge Taft, whenever it suits you. The bill, H. R. 661, is for the appointment of two additional circuit judges for the eighth circuit.

Chief Justice TAFT. This bill, gentlemen, is part of a recommendation made by the council of judges, which was created under a recent law. It is composed of the nine senior circuit judges of the nine different circuits, and is presided over by the Chief Justice. This council of judges is directed to meet with a view to arranging the business of the country, to make assignments of and exchange judges, and to make recommendations to the district judges. We have assumed to make recommendations for the betterment of the general system of the Federal judiciary where the subject matter has come immediately under the examination of the members of the council.

The eighth circuit, as you know, is about half the United States. It comprises all the States between the Mississippi River, from the Canadian border to the northern boundary of Louisiana and the northern boundary of Texas. It reaches to the Rocky Mountains and includes New Mexico, Colorado, Wyoming, the Dakotas, and Utah.

Mr. HOLLAND. And Montana.

Chief Justice Taft. Montana used to be in the ninth circuit. I do not think it still is. But my recollection is that there are 13 States in this circuit.

The CHAIRMAN. That is right, sir; Montana is not in the eighth circuit.

Chief Justice Taft. Montana is in the ninth circuit, I think.

Now, the business of the eighth circuit is very great indeed. It is very great both because of the population and because the States there are States in which a great deal of eastern capital is invested, and in which, because of diverse citizenship, the jurisdiction of the courts is very large. That jurisdiction is larger than it is in the eastern States where the local money is invested. There have been, and there still are, four circuit judges in that district.

When the Commerce Court' was abolished, in 1913, there were released from that court three circuit judges-more than that. At any rate, there was Judge Carland, Judge Hunt, and Judge Knapp; and the law permitted the assignment of those judges to the various circuits. Chief Justice White assigned Judge Knapp to the fourth circuit, where there were only two circuit judges at that time. Judge Carland was assigned to the eighth circuit. Judge Hunt first to the third circuit and then later to the ninth circuit. Judge Mack, still another of the former Commerce Court judges, was assigned to the seventh circuit. Judge Mack has been used in other circuits, and is now in New York, where he is very much needed and where he sits as a district judge. Judge Carland is dead; so that it reduces the number of judges who have been sitting in the eighth circuit for a long time to four. That is not enough for this circuit; not by any means. The Commerce Court circuit judges are not succeeded; that is, the law providing for the abolition of that court provided that when those judges died or resigned no successors should be appointed.

The CHAIRMAN. That line of judges will gradually be extinguished ?

Chief Justice Taft. Yes. Judge Archbald, from Pennsylvania, was one of them, but he was impeached, so that now the only living members on the circuit bench are Judge Mack and Judge Hunt. I do not know that there are more than two.

At any rate, the eighth circuit is without Judge Carland. He sat constantly, and was a very useful and painstaking judge. In the eighth circuit there are, as I say, 13 States. In those states there is a good deal of legislation of a character that attracts litigation, litigation as to taxation of foreign corporations and litigation as to provisions that are close to the line where they intrench on interstate

commerce. Such litigation is in equity, seeking injunctions, and under the laws that apply to that kind of litigation three judges must sit to consider the temporary injunctions that are asked, and those three judges must have among them one circuit judge. Therefore, the burden on the eighth circuit court of appeals, or rather on the circuit judges of the eighth circuit, is very much heavier than it is in any other circuit of the United States, and the cases must be heard as cases in the district court. The circuit judges may be gathered in St. Louis, or in St. Paul, or in Denver, and a case of this sort will arise in a distant part of the circuit and a circuit judge has to be sent at once to sit with two district judges to hear that case. It creates a peculiar exigency that calls for more circuit judges, even in proportion to the population and the number of States, than in any other circuit. As they have lost one circuit judge who was very much needed to do the regular work, and as this additional burden is upon that particular circuit, we had no hesitation in recommending as the Federal council that two circuit judges should be added to that circuit, one to take the place of Judge Carland and the other to meet an exigency the effect of which is becoming more and more evident in the conduct of the cases there.

I am glad to say that in the Federal judiciary generally the court that is nearest up with its docket is the circuit court of appeals. That is the only part of the Federal judiciary that is near where it ought to be in the disposition of its business. The district courts are generally behind, and the Supreme Court is about a year behind in its work.

I may add, Mr. Chairman, that accompanying this recommendation was a recommendation that two district judges be added to the force in the southern district of New York, and another one in the northern district of Georgia. These recommendations are based upon a very close examination into the business in each of those circuits. The southern district of New York is almost hopelessly congested in its business, and this really results in a denial of justice. They can only hold one admiralty court there and they have more admiralty business than, I suppose, any other place in the world. One admiralty court is not enough. We have been trying to get judges up there and under the new law I have sent judges to that jurisdiction from other places.

In other districts we have been able to accomplish much. In the district in Brooklyn we have really brought the business up to somewhere near what is reasonable, but in the southern district of New York it is hopeless and the only way the situation can be met is by increasing the judicial force there. I do not mean to say that there are not other methods, but there it is really a question of the number of judges and the number of court rooms that you will furnish in which to do the business.

We have recommended two additional judges; I venture to say that we might well use three or four more. The eighth circuit is an enormous district, and it has an enormous amount of business; and I think this matter ought to be attended to promptly.

I am ready to answer any questions.

The CHAIRMAN. Mr. Chief Justice, in the committee a moment ago we were discussing this matter. There are four justices now in that circuit.

Chief Justice Taft. In the eighth circuit.
The CHAIRMAN. If we add two, there would be six.
Chief Justice Tarr. Yes.

The CHAIRMAN. Is there not a requirement in the law, and I take the liberty of asking you because I think you know, as to the number of judges constituting the circuit court of appeals ?

Chief Justice TAFT. Yes; there must be two judges, but they sit three in a court.

The CHAIRMAN. Three constitute the court.

Chief Justice TAFT. Yes; there may not be more than four to constitute the court of appeals, but two can. It is very bad practice, however, to sit with only two; it detracts from the weight of the court's opinions.

Mr. MONTAGUE. You mean two circuit judges and one district judge ?

Chief Justice Taft. Yes, but I think it is very bad practice for two to sit, because sometimes two district judges would constitute the circuit court of appeals. That would not give much weight to the opinions of the court so constituted.

The CHAIRMAN. It was stated here the other day, while we were considering a bill that was before us, that the law required or limited the number to sit at three, and that being the case in the District of Columbia here, where they wanted to add some others, that it would require the law to expressly enlarge the number that might sit.

Chief Justice Taft. I looked into that, Mr. Chairman, when the question came up with reference to the use of the judges of the Court of Customs Appeals. You know, you gave the Chief Justice power to assign those judges to the district court of appeals, and an examination of the law made me feel that special congressional authority would be required to increase the number of that court.

I want to say that that privilege which you gave the Chief Justice of using the judges of the Court of Customs Appeals has worked very well

. The judges of that court are very fine lawyers and fine judges, and they have added very much to the efficiency of the district court of appeals in the disposition of its business.

The CHAIRMAN. Speaking of this council that you have referred to for supervising the business of the country, it was stated that it met with your approval to have the senior judge of the district court of appeals admitted to that council.

Chief Justice Taft. I do not remember having been consulted about it. Of course, the nine circuits are a system of the Federal judiciary and we would not have any objection to the chief justice of the District Court of Appeals coming in. Just exactly what point there is in having him I do not know; it has not been explained to me. Of course, that court is right here under the eaves of the Capitol and the needs of the court are very well known. The summoning of the nine circuit judges from distant parts of the country was for the purpose, I assume, of bringing and centralizing here information that was not likely to be here except by the presence of the judges who were familiar with it. I don't know why they desire this.

The CHAIRMAN. It was expressed that it was to bring the knowledge of the various reports made by other courts in the District before that council.

Chief Justice TAFT. I don't know that there would be any objection to it.

Mr. Boies. Has there been 'any call from Iowa for help in the Federal court of that State?

Chief Justice Taft. Yes; that was presented to the Federal council. There was another call from Baltimore, Md.; they need one judge in Baltimore, and they need one in Iowa. But the Federal council is a little chary of making recommendations lest they make too many. We do not want to destroy the effect of our recommendations by recommending too many judges.

Mr. Boies. Just now the judge in the southern district of Iowa is on sick leave.

Chief Justice Taft. I know he is, and I wrote Judge Wade. I had a letter from him; he is in southern California trying to rest. I think he is broken down, but I hope he will recover again.'

The truth is that we have not any too many Federal judges. One in Georgia is very badly needed and we have been sending them about from one district to another, to help out where they could. I think the system is working reasonably well, but there are some districts where you need permanent judges, and permanent judges can do a great deal more work in the same time than judges assigned from other circuits. They are familiar with the work.

Mr. MICHENER. Is it more satisfactory to the judges to work in their own districts ?

Chief Justice Tarr. I am satisfied it is.

Mr. MICHENER. You say the Federal council has already recommended this additional judge in Georgia ?

Chief Justice Taft. Yes, sir ; in the northern district of Georgia; and two in the southern district of New York.

The CHAIRMAN. Does any other gentleman of the committee wish to ask for information!

The CHAIRMAN. We are very grateful to have had you come before

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Chief Justice TAFT. I am very much obliged to you, Mr. Chairman, for giving me an opportunity to speak here.

The CHAIRMAN. Mr. Holland, the committee will be very glad to hear you now.



Mr. HOLLAND. I do not think I can add a thing to the sum total of the information which this committee has bearing upon this question of the appointment of the two additional judges in the eighth circuit. This will result in one, only one, judge in addition to what they have had in this circuit. I think what was said by the Chief Justice, and what is said in this memorandum submitted by Judge Sanborn, fully covers the situation. I have brought some data here with reference to the cases brought in that circuit-cases pending, cases disposed of, etc. --but really those figures do not amount to very much because it is the character of the cases rather than the number that really should be taken into consideration. Our data in the office do not disclose the character of the litigation, as was stated by the Chief Justice, that there is a greater variety of

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