REORGANIZATION OF THE FEDERAL JUDICIARY

MONDAY, MARCH 22, 1937

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D. C.

The committee met in the caucus room, 318 Senate Office Building, Senator Henry F. Ashurst presiding, at 10:30 a. m.

Present: Senators Ashurst (chairman), King, Neely, Logan, Dieterich, McGill, Hatch, Burke, Pittman, Connally, O'Mahoney, Hughes, Borah, Austin, and Steiwer.

Present also: Senator William G. McAdoo, chairman of the Special Committee to Investiate Receivership and Bankruptcy Proceedings and Administration of Justice in United States Courts.

STATEMENT OF HON. BURTON K. WHEELER, A SENATOR FROM THE STATE OF MONTANA

The CHAIRMAN. Senators, we are signally honored this morning. We have before us one of the most, if not the most distinguished member of the United States Senate, Senator Burton K. Wheeler, of Montana.

Senator Wheeler, you may proceed to make such statement as you desire.

Senator WHEELER. Mr. Chairman and members of the Committee on the Judiciary: It is with some reluctance that I appear here this morning. I have only appeared because of the insistence of many of my colleagues who are opposed to the bill which is pending before you to increase the Supreme Court membership by six. I want it to be understood at the outset that anything I may say is not said because of the fact that I have any unfriendly feeling toward the President. On the contrary, my relations with the President of the United States during his term of office have been exceedingly friendly, perhaps more friendly than those of some other members of this committee. I supported him when he was first a candidate. I supported him in the preprimary campaign. I was one of the first members of the United States Senate to openly come out for his nomination. I traveled from one end of this country to the other making speeches for him in the preprimary campaign. I went to the city of Chicago 10 days in advance of the convention and worked for his nomination. There has never at any time been anything but the most cordial relations between us.

I have felt compelled to disagree with him at times. I disagreed with him on the N. R. A. I disagreed with him because of the fact that I did not want to delegate the powers of the Congress of the United States to the corporate interests of this country, in order

that they might regulate themselves and fix prices contrary to the provisions of the Sherman antitrust law. I felt that act would be used to raise prices to the farmers of this country, and I felt that the benefits that labor might receive from it would be more than offset by the detriments which labor would receive and that the farmers of this country would receive at the hands of these monopolistic interests.

The Supreme Court of the United States held that law unconstitutional. I submit that there is not a lawyer of any learning or intelligence in this country but who would have to agree with the decision of the Supreme Court of the United States in that case.

I voted against the President on the so-called McCarran amendment, which sought to allow the W. P. A., or whatever it was at that time, to pay the prevailing wage scale to relief workers. I voted against him on the soldiers' bonus, and voted to override his veto. I disagreed with him with reference to the remonetization of silver. Notwithstanding those disagreements, I have always had and have at the present time a very high regard for the President.

I regret to have to disagree with him on this fundamental issue which confronts the Congress of the United States and the people of the United States at this time. I think I might say to the members of this committee that this proposal is not new to me. It may be new to many of the members of the committee. I appreciate the fact that the administration did not take into its confidence any of the members of the Committee on the Judiciary or the leaders among either the Democrats or Progressives; but a proposal was submitted to me at the last session of Congress to increase the Supreme Court. The proposal was not made to me by the President of the United States, and was made probably without his knowledge or consent, but it was made by men who were close advisers to the President and who are now working day and night to see that this proposal is enacted into law. I said to these young men at that time that I was opposed to it; that I thought it was wrong in principle, and that the American public would never stand for it.

And so I was shocked and surprised when I picked up the paper one day when I was in New York, not visiting the economic royalists, but visiting with people who were investigating economic royalists-the railroads of this country-and read the President's message to Congress and the proposed bill accompanying that message.

I might say to you at the outset that I have been severe in my criticism of some of the decisions of the Supreme Court. I have not agreed with the Court in many instances. I did not agree with it in the child-labor decision. I did not agree with it in the first income-tax decision. If you will pardon the suggestion, I think I have tried as many cases as most members of this committee, because for 20 years or more I was engaged extensively in the trial of cases, both defending and prosecuting in civil and criminal cases. I have had many courts decide against me, but I never for one moment entertained the idea that, because the court did not agree with me on what I thought was the needs of the times, that court should be increased in number with members who held my political and economic views.

So I say I was shocked when I read the message of the President of the United States and the letter accompanying it written by the

Attorney General. I thought it was a serious reflection upon all the members of the Supreme Court, including one of the greatest liberals in the United States upon that Court, Mr. Justice Brandeis. I submit to you that there is no greater liberal and never has been a greater liberal upon the Supreme Court, with the possible exception of the late Justice Oliver Wendell Holmes. I have sat at the feet of those two men for many years and agreed with their policies, their economic and their judicial views. And to say that those two men, because of their age, had ceased to keep pace with the times, seemed to me to be extremely unkind, to say the least. I do not believe that age has anything to do with liberalism.

I do not know when this administration first became adverse to old men. My late colleague, Senator Walsh, when he was appointed Attorney General of the United States was 74 years of age. Carter Glass, who was offered a position in the Cabinet of the present administration, was one of the "elder statesmen" of this country. Senator Norris, Senator Borah, and Senator Johnson have been among the forward looking men in this country, and certainly it cannot be said of them that they have not had a vision that kept in touch with human affairs and the needs of the times.

I thought it was a reflection upon the Court when it was stated that the Court was behind in its work, and when it was very strongly intimated, if not stated in so many words, that such a condition resulted from the age of the members of the Court. I thought it was a reflection upon the Justices to say that this Court had been remiss in its duty in not hearing the appeals of litigants in this country.

I was not familiar with the details, but I went immediately, or had my office staff go immediately to the Attorney General's report, and there I found in the Solicitor General's report a statement to the effect that the Court was not behind in its work and, in addition to that, that the disposition of cases and of writs of certiorari was, in substance, in accordance with the best practices.

I likewise went to another great authority, a man who has been a great student of the Supreme Court. In fact, I went to two men. One was Mr. Felix Frankfurter, professor of law at Harvard University, alleged by many people to be the intimate and close adviser of the President. I went to a book which was written by him and Prof. James Landis, in which they pointed out that any improvement of the Supreme Court is not to be had by adding to the membership of that Court.

It was only after the Attorney General of the United States came before this committee, as I understood from the newspapers without reading his testimony, and repeated the charges that he had previously made that I went to the only source in this country that could know exactly what the facts were and that better than anyone else, to see if it was possible to refute the reflection that had been made upon the Court and upon the integrity of those individuals who constitute that Court.

And I have here now a letter by the Chief Justice of the Supreme Court, Mr. Charles Evans Hughes, dated March 21, 1937, written by him and approved by Mr. Justice Brandeis and Mr. Justice Van Devanter. Let us see what these gentlemen say about it. The letter reads as follows:

Hon. BURTON K. WHEELER,

SUPREME COURT OF THE UNITED STATES,
Washington, D. C., March 21, 1937.

United States Senate, Washington, D. C.

MY DEAR SENATOR WHEELER: In response to your inquiries, I have the honor to present the following statement with respect to the work of the Supreme Court:

1. The Supreme Court is fully abreast of its work. When we rose on March 15 (for the present recess) we had heard argument in cases in which certiorari had been granted only 4 weeks before-February 15.

During the current term, which began last October and which we call "October term, 1936", we have heard argument on the merits in 150 cases (180 numbers) and we have 28 cases (30 numbers) awaiting argument. We shall be able to hear all these cases, and such others as may come up for argument, before our adjournment for the term. There is no congestion of cases upon our calendar.

This gratifying condition has obtained for several years. We have been able for several terms to adjourn after disposing of all cases which are ready to be heard.

Now, of course it should be understood, as every lawyer knows in the courts, cases pending in the Supreme Court and the various courts, where the lawyers upon both sides delay them because they are not prepared for trial. [Continues reading:]

2. The cases on our docket are classified as original and appellate. Our original jurisdiction is defined by the Constitution and embraces cases to which States are parties. There are not many of these. At the present time they number 13 and are in various stages of progress to submission for determination.

Our appellate jurisdiction covers those cases in which appeal is allowed by statute as a matter of right and cases which come to us on writs of certiorari. The following is a comparative statement of the cases on the dockets for the six terms preceding the current term:

Further statistics for these terms, and those for earlier terms, are available if you desire them.

During the present term we have thus far disposed of 666 cases which include petitions for certiorari and cases which have been argued on the merits and already decided.

And I am informed that there are no cases pending in the Supreme Court at this time but what will be heard before the end of the recess, where the lawyers themselves are prepared to go ahead. [Continues reading:]

3. The statute relating to our appellate jurisdiction is the act of February 13, 1925 (43 Stat. 936). That act limits to certain cases the appeals which come to the Supreme Court as a matter of right. Review in other cases is made to depend upon the allowance by the Supreme Court of a writ of certiorari.

Where the appeal purports to lie as a matter of right, the rules of the Supreme Court (rule 12) require the appellant to submit a jurisdictional statement showing that the case falls within that class of appeals and that a substantial question is involved. We examine that statement, and the supporting and opposing briefs, and decide whether the Court had jurisdiction. As a result, many frivolous appeals are forthwith dismissed and the way is open for appeals which disclose substantial questions.

4. The act of 1925, limiting appeals

And that act was passed by the Congress of the United States [continues reading]

limiting appeals as a matter of right and enlarging the provisions for review only through certiorari was most carefully considered by Congress. I call attention to the reports of the Judiciary Committees of the Senate and House of Representatives (68th Cong., 1st sess.). That legislation was deemed to be essential to enable the Supreme Court to perform its proper function. No single court of last resort, whatever the number of judges, could dispose of all the cases which arise in this vast country and which litigants would seek to bring up if the right of appeal were unrestricted. Hosts of litigants will take appeals so long as there is a tribunal accessible. In protracted litigation, the advantage is with those who command a long purse. Unmeritorious appeals cause intolerable delays. Such appeals clog the calendar and get in the way of those that have merit.

And, of course, any lawyer of any experience whatsoever knows that that is true. [Continues reading:]

Under our Federal system, when litigants have had their cases heard in the courts of first instance, and the trier of the facts, jury or judge, as the case may require, has spoken and the case on the facts and law has been decided, and when the dissatisfied party has been accorded an appeal to the Circuit Court of Appeals, the litigants, so far as mere private interests are concerned, have had their day in court. If further review is to be had by the Supreme Court it must be because of the public interest in the questions involved. That review, for example, should be for the purpose of resolving conflicts in judicial decisions between different circuit courts of appeals or between circuit courts of appeals and State courts where the question is one of State law; or for the purpose of determining constitutional questions or settling the interpretation of statues: or because of the importance of the questions of law that are involved. Review by the Supreme Court is thus in the interest of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants.

It is obvious that if appeal as a matter of right is restricted to certain described cases, the question whether review should be allowed in other cases must necessarily be confided to some tribunal for determination, and, of course, with respect to review by the Supreme Court, that Court should decide.

Granting certiorari is not a matter of favor but of sound judicial discretion. It is not the importance of the parties or the amount of money involved that is