of material in their petitions and briefs that does not need to be read, in the light of the Attorney General's mathematical computation that so much of that material is filed in the Court that a judge working 24 hours a day would not be able to read it all?

Mr. JACKSON. No; I do not think so. Those are the facts. There is no question that a petition for certiorari can usually be presented so that a judge who knows the precedents of that Court can determine it in fairly short order, I would say; but the lawyer who prepares an application for certiorari places in all the precedents which the Justice very well knows because he does not want to take any chances. Senator BURKE. It is not quite fair to draw a conclusion from the fact that we may count the words that are placed in the documents that we file and say that mounts so high that we must have more judges to do the work, is it?

Mr. JACKSON. That is the actual measure of the work presented to the Court. I do not think it is a necessary measure of the amount each individual does. Somebody has to decide these petitions, has to read them and see what is in them, but I do not think it is necessary for every judge to read every one.

Senator CONNALLY. The whole theory of this proposal and your testimony is that, after all, it depends on the kind of judges you are going to appoint under this new authority. In other words, if you get six new judges who decide the cases according to your view, it is all right; but if you do not, it is all wrong. Is that it?

Mr. JACKSON. No; I do not take that view. Justices Cardozo, Brandeis, Hughes, and Stone have all decided cases against the Government. I am perfectly content, as the Attorney General said yesterday, to proceed under the decisions that they render. We are not good judges of our own acts. We do not ask judges to commit

themselves to us.

Senator BURKE. I did not ask you that.

Mr. JACKSON. That is the point. I am willing to take the adverse decision of an open-minded judge at any time. I have taken many

of them.

Senator CONNALLY. You would have to do so, whether he is openminded or not. This legislation would be of no effect, so far as your real objective is concerned, unless enough of the new judges are of the state of mind which you think is necessary to bring about these decisions. Is that not true? Suppose you should get six who might decide these questions like the judges you are complaining about. Then this would be useless.

Mr. JACKSON. I would not say it would be useless. The point I make now would probably be lost. The point the Attorney General

made

Senator CONNALLY (interposing). I am asking you about your testimony.

Mr. JACKSON. I do not want you to construe what I say as a negative of the statement of the Attorney General.

Senator CONNALLY. I am not concerned about the Attorney General. He was here yesterday. You are here today. I am not trying to draw you into a controversy with your chief. If such a controversy arose, I have no doubt it could be ironed out. After all,

whether this plan works or not will depend upon the men who are selected.

Mr. JACKSON. That is very largely true.

Senator CONNALLY. Is it not absolutely true?

Mr. JACKSON. Yes: I think it is fair to say that it is absolutely true that it will depend on the men appointed.

Senator CONNALLY. You do not change the Constitution. Whatever it is, it is just like it was. If we have not the power now to do certain things, we still would not have that power, as far as the Constitution is concerned; but if we get six judges whose views on the powers conferred by the Constitution are our way, then we can change the judicial interpretation or construction and get a favorable construction where we now may get an unfavorable construction. Is not that true?

Mr. JACKSON. Yes; in substance.

Senator CONNALLY. Is not that the purpose of it?

Mr. JACKSON. If the Constitution is what the judges say it is, then we should have something to say about who the judges are.

Senator CONNALLY. The theory of the bill changes very definitely the position of the majority now on the Court to prevent the overruling of Congress on certain points.

Mr. JACKSON. I would not say that is the purpose of the bill. That would have to be judged in the light of the President's message. Senator CONNALLY. You are here advocating it.

Mr. JACKSON. As far as that is concerned, it would not change the conditions which I have outlined to you. That is the point that interests me.

Senator CONNALLY. The thing that interests you is that the Court, as now constituted, does not construe the Constitution like you think it should be construed, and you believe by getting six new judges they might construe it in the way it should be done.

Mr. JACKSON. I think one of two things would happen. They would either construe it as I think it should be construed, or I would know that fair judges of my generation think I am wrong.

The CHAIRMAN. Your position is that the Supreme Court should not be ignorant of or blind to that which is transpiring in the world today.

Mr. JACKSON. That is a fair statement.

Senator DIETERICH. It is not the purpose of the bill to put judges on the Court who would prejudge prospective legislation that might arise, is it?

Mr. JACKSON. Certainly not.

Senator DIETERICH. The purpose is to get open, fair-minded, qualified men who will use their own judgment and independence in determining the constitutionality of acts that may be passed by this Congress.

Mr. JACKSON. That is a very correct statement.

Senator NEELY. We have had suggestions of the calamity that might result from the appointment of laymen on the Supreme Bench. Do you think that a Supreme Court composed exclusively of laymen could manifest any greater hostility or antagonism to the popular trend of opinion and the popular will than has been demonstrated by the present Court during the last 4 years?

Mr. JACKSON. I do not think it could.

Senator BURKE. Do you consider it the function of the Supreme Court to always rule according to popular opinion?

Mr. JACKSON. No.

Senator BURKE. Certainly not.

Mr. JACKSON. But I do consider it the duty of the Court, as it has outlined it, to give legislation that comes to it benefit of every reasonable doubt and pay a decent respect to the legislative branch. Senator BURKE. We will have no dispute about that, but that is an altogether different thing than you answered a few moments ago, if I understood the question.

Senator NEELY. Mr. Jackson, do you think the judicial current would be grealy disturbed if some of the judges considered that the Constitution, like the Sabbath, was made for the American people, instead of the American people made for the Constitution?

Mr. JACKSON. I think that is very wholesome.

The CHAIRMAN. Any further questions? (A pause.) The committee will adjourn until 10:30 tomorrow.

(Whereupon, at 12:20 p. m., the committee adjourned until the following day, Friday, Mar. 12, 1937, at 10:30 o'clock a. m.)

REORGANIZATION OF THE FEDERAL JUDICIARY

FRIDAY, MARCH 12, 1937

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

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

Present: Senators Ashurst (chairman), King, Neely, Van Nuys, McCarran, Logan, Dieterich, McGill, Hatch, Burke, Pittman, Connally, O'Mahoney, Hughes, Borah, Norris, Austin, and Steiwer; also present: Senator McAdoo, chairman, Special Committee to Investigate Receivership and Bankruptcy Proceedings and Administration of Justice in United States Courts.

STATEMENT OF HON. JOHN P. DEVANEY, PRESIDENT, NATIONAL LAWYERS' GUILD, MINNEAPOLIS, MINN.

The CHAIRMAN. The committee observes the presence of Hon. John T. Devaney, of the State of Minnesota.

Judge Devaney, will you have the kindness to make your statement, with the understanding after you have finished your statement the committee reserves the right to propound such questions as the members may choose? Do you understand that?

Mr. DEVANEY. Yes, sir.

Senator BURKE. Mr. Chairman, might we have the name of the gentleman, and his business?

The CHAIRMAN. That would be proper.

Please state your full name.

Mr. DEVANEY. My name is John P. Devaney.

The CHAIRMAN. Where do you now reside?

Mr. DEVANEY. Minneapolis, Minn.

The CHAIRMAN. How long have you resided there?

Mr. DEVANEY. I have resided there for 35 years.

The CHAIRMAN. What is your present occupation?

Mr. DEVANEY. I am a lawyer.

The CHAIRMAN. Have you ever held any official position? If so, what, where, and when?

Mr. DEVANEY. For more than 2 years I was chief justice of the Supreme Court of the State of Minnesota, having resigned approximately 2 weeks ago.

Senator KING. You were appointed by Governor Olson, were you

not?

65

Mr. DEVANEY. I was originally appointed by Gov. Floyd E. Olson and was afterward elected for a 6-year term, of which I served 2 years. I am now president of the National Lawyers' Guild.

The CHAIRMAN. Have you ever held any other official position? Mr. DEVANEY. I have not.

The CHAIRMAN. You may proceed.

Mr. DEVANEY. The National Lawyers' Guild is the first national bar association to go on record as being unequivocally for the President's proposal.

I am appearing before you today on its behalf as its president. 1. The position of the National Lawyers' Guild.

Three weeks ago the guild held its first formal organization meeting in Washington. Nearly 500 delegates from 38 States attended. The most important matter which came before the meeting was the action to be taken by the guild upon the President's proposal for the reorganization of the judiciary. After 3 days of discussion and debate, the following resolution on the President's proposal was adopted almost unanimously:

RESOLUTION ON THE PRESIDENT'S PROPOSAL

Whereas the President of the United States has proposed that the number of Justices of the Supreme Court be increased by the number of incumbents who have reached the age of 70 years and have not retired after having serving for 10 years; and

Whereas we believe that the majority of the members of that Court has fallen behind the needs of the times, has blocked progress, and is now out of harmony with the urgent social and economic demands of the people: Now, therefore, be it Resolved, That we heartily endorse the President's proposal and urge its immediate passage by Congress as the only immediately available method to make possible progressive legislation now imperatively needed.

In yesterday's record of these hearings I think I saw an intimation that the lawyers of America were generally opposed to the President's proposal. I doubt whether that would prove to be true if the sentiment of the average lawyer who serves the average client could be made as articulate as the sentiment of the leaders of the bar who serve the big clients.

Of course, many bar associations, including the American Bar Association, have taken a position against this bill in the last few weeks. But of the 175,000 lawyers of the country, less than one-half are members of organized bar groups of any kind. Less than 30,000 are members of the American Bar Association, which until the formation of the National Lawyers' Guild was the only nationally organized group of lawyers which assumed to speak for the profession.

Furthermore, I feel fairly sure that the majority of members of many local bar associations have gone on record against the President's proposal on a most cursory examination of the merits of the proposal. I have heard of cases where the text of the proposal was not even available to the local association when the association took action, and when it was almost certain that most of the members had had no time to give prior study to the proposal.

I am a member of the American Bar Association. I recognize that it has done and is doing valuable work in many fields. But it has naturally come under the leadership of the most successful members of the profession, whose professional duties have brought them into contact with the most successful and powerful classes of the country.