SEC. 2. (a) Any circuit judge hereafter appointed may be designated and assigned from time to time by the Chief Justice of the United States for service in the circuit court of appeals for any circuit. Any district judge hereafter appointed may be designated and assigned from time to time by the Chief Justice of the United States for service in any district court, or, subject to the authority of the Chief Justice, the senior judge of his circuit for service in any district court within the circuit. A district judge designated and assigned to another district hereunder may hold court separately and at the same time as the district judge in such district. All designations and assignments made hereunder shall be filed in the office of the clerk and entered on the minutes of both the court from and to which a judge is designated and assigned, and thereafter the judge so designated and assigned shall be authorized to discharge all the judicial duties (except the power of appointment to a statutory position or of permanent designation of a newspaper or depository or funds) of a judge of the court to which he is designated and assigned. The designation and assignment of a judge shall not impair his authority to perform such judicial duties of the court to which he was commissioned as may be necessary or appropriate. The designation and assignment of any judge may be terminated at any time by order of the Chief Justice or the senior circuit judge, as the case may be.

(b) After the designation and assignment of a judge by the Chief Justice, the senior circuit judge of the circuit in which such judge is commissioned may certify to the Chief Justice any consideration which such senior circuit judge believes to make advisable that the designated judge remain in or return for service in the court to which he was commissioned. If the Chief Justice deems the reasons sufficient, he shall revoke, or designate the time of termination of, such designation and assignment.

(c) In case a trial or hearing has been entered upon but has not been concluded before the expiration of the period of service of a district judge designated and assigned hereunder, the period of service shall, unless terminated under the provisions of subsection (a) of this section, be deemed to be extended until the trial or hearing has been concluded. Any designated and assigned district judge who has held court in another district than his own shall have power, notwithstanding his absence from such district and the expiration of any time limit in his designation, to decide all matters which have been submitted to him within such district, to decide motions for new trials, settle bills of exceptions, certify or authenticate narratives of testimony, or perform any other act required by law or the rules to be performed in order to prepare any case so tried by him for review in an appellate court; and his action thereon in writing filed with the clerk of the court where the trial or hearing was had shall be as valid as if such action had been taken by him within that jurisdiction and within the period of his designation. Any designated and assigned circuit judge who has sat on another court than his own shall have power, notwithstanding the expiration of any time limit in his designation, to participate in the decision of all matters submitted to the court while he was sitting and to perform or participate in any act appropriate to the disposition or review of matters submitted while he was sitting on such court, and his action thereon shall be as valid as if it had been taken while sitting on such court and within the period of his designation.

SEC. 3. (a) The Supreme Court shall have power to appoint a proctor. It shall be his duty (1) to obtain and, if deemed by the Court to be desirable, to publish information as to the volume, character, and status of litigation in the district courts and circuit courts of appeals, and such other information as the Supreme Court may from time to time require by order, and it shall be the duty of any judge, clerk, or marshal of any court of the United States promptly to furnish such information as may be required by the proctor; (2) to investigate the need of assigning district and circuit judges to other courts and to make recommendations thereon to the Chief Justice; (3) to recommend, with the approval of the Chief Justice, to any court of the United States methods for expediting cases pending on its dockets; and (4) to perform such other duties consistent with his office as the Court shall direct.

(b) The proctor shall, by requisition upon the Public Printer, have any necessary printing and binding done at the Government Printing Office, and authority is conferred upon the Public Printer to do such printing and binding. (c) The salary of the proctor shall be $10,000 per annum, payable out of the Treasury in monthly installment, which shall be in full compensation for the services required by law. He shall also be allowed, in the discretion of the Chief Justice, stationery, supplies, travel expenses, equipment, necessary pro

fessional and clerical assistance, and miscellaneous expenses appropriate for performing the duties imposed by this section. The expense in connection with the maintenance of his office shall be paid from the appropriation of the Supreme Court of the United States.

SEC. 4. There is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $100,000, for the salaries of additional judges and the other purposes of this Act during the fiscal year 1937.

SEC. 5. When used in this Act

(a) The term "judge of retirement age" means a judge of a court of the United States, appointed to hold his office during good behavier, who has attained the age of seventy years and has held a commission or commissions as judge of any such court or courts at least ten years, continuously or otherwise, and within six months thereafter, whether or not he is eligible for retirement, has neither resigned nor retired.

(b) The term "circuit court of appeals" includes the United States Court of Appeals for the District of Columbia; the term "senior circuit judge" includes the chief justice of the United States Court of Appeals for the District of Columbia; and the term "circuit" includes the District of Columbia.

(c) The term "district court" includes the District Court of the District of Columbia but does not include the district court in any Territory or insular possession.

(d) The term "judge" includes Justice.

SEC. 6. This act shall take effect on the thirtieth day after the date of its enactment.

The CHAIRMAN. The committee will be in order. It is obvious that there is a quorum present.

The committee is here to consider S. 1392, a bill to reorganize the judicial branch of the Government. The committee observes the presence here of the Attorney General of the United States.

Before proceeding with the statement of the Attorney General, I should say the committee is in receipt of resolutions from legislatures of States, some for and some opposed to this bill. Is there any objection to printing these resolutions of the legislatures in the record?

Senator BORAH. I suggest they be printed after the statement of the Attorney General.

The CHAIRMAN. The Senator from Idaho suggests that the resolutions be printed after the completion of the statement of the Attorney General. Is there any objection? It is so ordered.

Senator KING. Mr. Chairman, is it the purpose to have petitions which have been presented to the Congress and the clerk of the committee noted in the record?

The CHAIRMAN. If you print one petition, it seems obvious that you must print all of them. If you print them all, we will have an enormous record.

Senator KING. That is my view, but I did not know but what you might note in the record the various petitions received. However, that is a matter that can be discussed later.

Senator AUSTIN. Mr. Chairman, I have some certificates of a number of town meetings. It seems to me they are of sufficient dignity to be put in this record. I would like to have them go in the record. There are not many, but these are units of the Government, and I suggest that they go in the record.

The CHAIRMAN. You have heard the suggestion and request of the Senator from Vermont. Is there any objection to printing them in our record?

Senator BORAH. Let us take that matter up in a meeting of the committee after we get through with the open hearing.

STATEMENT OF HON. HOMER CUMMINGS, ATTORNEY GENERAL OF THE UNITED STATES

The CHAIRMAN. The Attorney General of the United States is here prepared to make a statement to the committee.

General, you may proceed with your statement.

Attorney General CUMMINGS. Mr. Chairman and members of the Committee on the Judiciary, permit me first to express my very real appreciation of your courtesy in inviting me here and affording me this opportunity to express such views as I may have with reference to Senate bill 1392.

The question of judicial reform is not a new one. Eminent judges, lawyers, statesmen, and publicists over periods of many years have complained of the defects of our judicial system and have sought to find remedies. Surely all thoughtful citizens desire constantly to improve our institutions, to adapt them to our needs as time advances, and to secure the best government that intelligence and wisdom can provide. What we differ about, if we differ at all, is the means of accomplishing the purposes we hold in common. That our judicial processes and the administration of justice are in need of improvement is hardly open to debate.

The President's plan rests upon four pillars, based upon the following propositions:

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A. The impossible situation created by the reckless use of injunctions in restraining the operation of Federal laws.

B. The presence on the Federal bench of aged or infirm judges. C. The crowded condition of the Federal dockets, the delays in the lower courts, and the heavy burden imposed upon the Supreme Court. D. The need of an effective system for the infusion of new blood into the judiciary.

All of these matters are interrelated, interwoven, and interdependent. Moreover, they are part of the general problem of improving our democratic processes.

A. Government by injunction: The President, in his message of February 5, called the attention of the Congress to the fact that the processes of government are "brought to a complete stop from time to time by injunctions issued almost automatically" and continued in effect while counsel maneuver, debate, and appeal.

This situation arises in part from the uncertain state of our constitutional law. In part, the condition is due to the failure of judges to exercise care, discrimination, and self-restraint in the use of this drastic remedy. As an immediate step the President has recommended that the Congress provide that, first, no court shall pass upon the constitutionality of an act of Congress without notice to the Attorney General and an opportunity for the United States to present evidence and to be heard; and, second, where the trial courts pass upon such questions there shall be a direct appeal to the Supreme Court, and that such cases shall take precedence over all other matters pending in the Court. I am aware of no serious objections to these obviously necessary reforms.

B. Aged or infirm judges: Since the Civil War attention has been turned from time to time to the problem of the aged or infirm judge.

In 1869 the House of Representatives passed a measure requiring the appointment of an additional judge to any court where a judge of retirement age declined to leave the bench. It failed in the Senate. This is the same remedy proposed by President Roosevelt today.

With the opening of the twentieth century similar proposals were again agitated. President Taft, a former Federal judge, felt keenly on the subject and frequently expressed himself with, I may say parenthetically, extraordinary vigor. He felt that the absence of a compulsory retirement system for judges was "a defect" in our institutions, and he believed that

It is better that we lose the services of the exceptions who are good judges after they are 70 and avoid the presence on the bench of men who are not able to keep up with the work or to perform it satisfactorily.

Not long afterward Attorney General-now Mr. Justice-McReynolds returned to the earlier proposals, and in his annual report for 1913 recommended that

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When any judge of a Federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law the President be required, with the advice and consent of the Senate, to appoint another judge, who shall preside over the affairs of the court and have precedence over the older one.

Attorney General Gregory repeated the suggestion in 1914, 1915, and 1916. These recommendations embodied the principle now urged by President Roosevelt, except that they did not apply to the Supreme Court.

In 1928 Charles Evans Hughes, now Chief Justice of the United States, agreed

That the importance in the Supreme Court of avoiding the risk of having judges who are unable properly to do their work and yet insist on remaining on the bench is too great to permit chances to be taken.

He seemed to favor 75 rather than 70 as the proper retirement age. In England 72 is favored. In our universities a lower age than 70 is the general rule. In this country 70 seems to be the most favored retirement age for civil servants and for judges.

No one thinks judges are not human or that 3 score years and 10 do not work upon them as upon other men. The verdict of experience is nearly unanimous that some sort of action should be mandatory when judges reach a certain, definitely fixed, age. Obligatory retirement might be provided by constitutional amendment. The President, however, has chosen a less drastic course in asking that additional judges be appointed to supplement the work of those of retirement age. C. The crowded condition of the Federal dockets, the delays in the lower court, and the heavy burden imposed upon the Supreme Court: In his last annual message, in December 1908, President Theodore Roosevelt complained of

which

The long delays in the administration of justice operate with peculiar severity against persons of small means and favor only the criminals whom it is most desirable to punish.

Four years later the district court system was reorganized, and in that year, exclusive of bankruptcy proceedings, an average of 276 cases were filed for each district judge. In 1936 an average of 484 such cases were filed, an increase of more than 75 percent. More than 50,000 cases, exclusive of bankruptcy proceedings, now overhang the

Federal dockets. The new cases filed about equal the number of those disposed of, so that we make no serious impression on the back log of undigested cases.

The last report of the judicial conference shows delays in securing trials in civil cases after joinder of issue in 34 out of the 85 judicial districts. Actually, the 34 congested districts handle a great majority of the civil litigation in the district courts. Thus, the total number of private civil cases pending in all of the 85 districts on June 30, 1936, was 31,294, of which 22,239 were pending in the 34 congested districts. In other words, the trial of more than two-thirds of the private civil litigation in United States district courts is stalled by clogged dockets.

This, however, is not the complete story of the law's delays. The statistics of the judicial conference have reference only to the interim between joinder of issue and the time a trial may be had if all goes well. Further time is lost in bringing cases to issue, due to delays in securing rulings on preliminary matters, such as demurrers and motions. Another course of trouble is the undue lapse of time that frequently intervenes between the final submission of a case to the court and the date when the decision is actually rendered.

By way of illustration, permit me to refer to the situation in the eastern district of Pennsylvania. The number of private civil cases there pending on January 31, 1937, was 1,593. Of this number, 1,277 had been on the docket more than a year, 1,007 more than 2 years, 860 more than 3 years, 732 more than 4 years, 629 more than 5 years, 531 more than 6 years, 420 more than 7 years, 361 more than 8 years, 307 more than 9 years, and 264 more than 10 years.

But the mere measurement of delay is not all. Each of us knows from experience that many people submit to wrongs rather than resort to the courts, or accept unjust or improvident settlements.

We not only need more judges but we also need a flexible system. Some suggestion has been made that judges over 70 are not necessarily confined to congested areas. But all new judges should constitute a mobile force, available for service in any part of the country under the direction of the Chief Justice. Congestion cannot be foreseen. It is a varying factor. It is self-evident that judges should be available for pressure areas.

Our laws already provide, under certain limitations, for the special assignment of judges to congested areas. This system is sadly in need of renovation. It is haphazard and unbusinesslike. There should be one responsible public official who works at nothing else. Hence, the suggestion of a proctor, operating under the control of the Chief Justice and the Supreme Court.

Most informed people recognize the propriety and force of these suggestions as applied to the lower courts but question has been raised as to the matter of additional judges for the Supreme Court. During a great part of our history, particularly since the Civil War, the business of the Supreme Court has been sadly in arrears. In 1891 the circuit courts of appeals were created to relieve the Supreme Court. Nevertheless, President Taft, in 1910, spoke of its "slough of despond." Upon becoming Chief Justice he lost little time in attacking the problem. The Congress responded in 1925 with a measure giving the Supreme Court discretion, in most cases, to determine whether it would hear particular causes.