sufficiently serve in illustration. Thus, under title 11, United States Code, section 62(b), in the field of bankruptcy, the Council is given the power to make removal of a referee for cause, where the judges of a district court fail so to remove him by a concurrence of a majority of them.

VI. ENFORCEMENT POWERS OF THE JUDICIAL COUNCILS

Section 332 provides that the Council "shall take such action (on the quarterly reports of the Administrator) as may be necessary"; that it "shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit"; and that "The district judges shall promptly carry into effect all orders of the judicial council."

It will be noted that there is no express provision for sanctions in relation to the orders of the council. It is apparent from the testimony of the witnesses before the committees of Congress that this was deliberate on the part of the conference committee in drafting the section; that it was felt that the command of the statute, that all orders of the Judicial Council should be carried into effect, would be sufficient, in the nature and spirit of the judicial office, and in the tradition of the scheme of authority which has always existed in a judicial system, to cause those orders to be obeyed; and that any defiance of a council's order would be extremely rare; and that there would exist implicitly or inherently some way of dealing with it, if it occurred.

Thus, in the Senate committee hearings, Senator (now Circuit Judge) Danaher, in referring to the question of "lack of teeth," commented on the provision relating to the reports of the Director, that the Council may take such action as may appear to be necessary, and indicated that he felt that "that answered the question as to the teeth" (pp. 18 and 19). Arthur Vanderbilt replied, "I think it does quite completely and adequately." He added that, as to situations in which the admonition of the Council might not be respected, "Those cases are so rare that I do not think you would ever have to bother with them." And he had precedingly observed, "I think the circuit court and the judicial council would have adequate power to deal with such a situation" (p. 19).

The significance of this, in the view of the Judicial Conference, is merely to make it clear that the omission of any provision for specific sanctions was in no way intended to affect the Council's responsibility to exercise its supervisory and corrective functions or to prompt it to engage in any deterrence in respect thereto.

VII. CONCLUSIONS

On the basis of the foregoing, the Judicial Conference of the United States is of the following views and conclusions:

(1) Under section 332, the judicial councils are intended to have, and have, the responsibility of attempting to see that the business of each of the courts within the circuit is effectively and expeditiously administered.

(2) The responsibility of the councils "for the effective and expeditious administration of the business of the courts within its circuit" extends not merely to the business of the courts in its tech

nical sense (judicial administration), such as the handling and dispatching of cases, but also to the business of the judiciary in its institutional sense (administration of justice), such as the avoiding of any stigma, disrepute, or other element of loss of public esteem and confidence in respect to the court system, from the actions of a judge or other person attached to the courts.

(3) The councils have the responsibility and owe the duty of taking such action as may be necessary, including the issuance of "all necessary orders," to attempt to accomplish these ends.

(4) These responsibilities should ordinarily be approached, in the spirit and tradition of the judicial institution, in an attitude of attempted cooperation and assistance to the district courts and not of purported policemanship, since the purpose of the statute is to make the Council an instrument to help prevent problems from arising, to help find solutions for those which have arisen, as well as to take such corrective action for prevention or solution "as may be necessary." (5) If the councils are effectively to serve these purposes, it is manifest that they must undertake to keep themselves informed. Their primary source of information will, of course, be the reports of the Director of the Administrative Office, as referred to in the statute. But formal statistics alone will not always, and perhaps not usually, be sufficient as a basis for the exercise of intelligent responsibility. Statistics may point out the existence of a problem, but they do not ordinarily demonstrate the causes or reasons underlying the problem. Thus, in the attempt to deal with a problem, such as where a court appears to be falling behind and perhaps to be approaching an incipient congestion, it would seem desirable for the Council to call upon the Administrative Office to undertake to make an exploration into the particular situation, in order to enable it to get at the underlying picture and understand what it is that needs suggestion or corrective action on the part of the Council.

(6) In the judgment of the Judicial Conference the present statute is adequate to enable the judicial councils, on proper exercise of their responsibilities, to serve their intended purpose, as an instrumentality in the statutory scheme of Public Law No. 299, for "The Administration of the U.S. Courts," to assist in achieving "the effective and expeditious administration of the business of the courts." The expression which the Conference made in the report of its September 1939 session, page 11, after the enactment of the act, is entitled to be renewed:

It is confidently expected that through the operation of this act the important objectives to which reference has been made will be measurably attained.

VIII. SUGGESTIONS AND COMMENTS

The Judicial Conference makes these suggestions and comments: (1) The tasks of a judicial council might perhaps be made easier by gaining understanding and cooperation, through a discussion of its responsibilities and concerns, and its approach to them, at the judicial conference of the circuit. In this connection it should be noted that the purpose of these conferences, under title 28, United States Code, section 333, is—

considering the business of the courts and advising means of improving the administration of justice within such circuit.

(2) Understanding of the functions and concerns of both the judicial councils and the judicial conferences of the circuits by the bar should be encouraged.

(3) Some formality in the holding of council meetings and the setting up of an agenda can perhaps contribute to their functioning: Too much informality may tend to a dilution of the sense of responsibility.

(4) Understanding of the work of the council and of the spirit of its approach to its responsibilities can perhaps be fostered by inviting the district judge, who is the representative on the Judicial Conference of the United States, to attend a council meeting. In this respect, the same purpose in comprehension will perhaps be served as to the council, as results to a court of appeals in calling a district judge at some time to sit with it and thereby become familiar with its processes.

(5) It is not possible to cover within the compass of this report all of the specific things which the Conference has discussed as falling within the responsibilities of the councils. These have included such matters as the responsibility of dealing with situations where a judge, eligible to retire, has become incapacitated, so that the work of the court is materially being prejudiced thereby. Another illustration is having a judge who has an accumulation of submitted cases not take on any further trial work until such cases have been decided. These specific matters could be numerously multiplied. For purposes of the present report, the all-inclusive general statements made above will have to suffice.

10

[From The American Bar Association Journal, 1964]

THE ROLE OF THE TRIAL JUDGE IN THE ANGLO-AMERICAN LEGAL SYSTEM

(The foundation of our form of government rests on our independent judiciary, Judge Chandler writes, and this is especially true of trial courts. There is, however, he says, a disturbing trend toward treating the federal district courts as inferior, second-rate tribunals that need to be supervised by appellate courts. He argues vigorously that the district courts are coequal with the courts of appeals and should be so considered with respect to salary, prestige and administrative authority.)

by Stephen S. Chandler, Chief Judge of the U.S. District Court for the Western District of Oklahoma

The great organized movement to improve the administration of justice in the United States during the past quarter of a century has not sufficiently emphasized the importance of the psychological factor in the judicial process. Since the publication of the illustrious Benjamin N. Cardozo's great work on The Nature of the Judicial Process in 1921, the legal profession has become increasingly aware of the need for a systematic study of the role of the judge the trial judge, the district judge, the circuit judge and the appellate judge. This need has resulted in a well-defined movement in the United States which has sought to improve the techniques of judgment and efficiency in collateral matters, particularly judicial administration. The movement is related to judges in both state and federal courts. It has produced significant legislation and has evoked thoughtful effort by the organized Bar, with the strong support of the American Bar Association.

In the federal system, Congress established the Judicial Conference of the United States to improve the administration of justice in the federal courts 1 tion of the courts within the circuit"."

1

The American Bar Association has contributed to the acceleration of this reform movement through its Section of Judicial Administration, the Standing Committee on Judicial Selection, Tenure and Compensation, and the Special Committee on the Federal Judiciary, which developed cordial relations with the Judiciary Committee of the United States Senate. Further evidence of the Association's continuing leadership is its participation in the Joint Committee for the Effective Administration of Justice, a program of various law and administrative reform organizations united to "co-ordinate the efforts of all groups in the field of judicial administration under the auspices" of a single organizational direction. In 1952, when the American Bar Foundation was established, it became a participant in the movement.

The Section of Judicial Administration more recently submitted to the House of Delegates of the American Bar Association a proposed Model Judiciary Article, which the latter in turn approved. That article is now being recommended to the several states as the basis for revision of the judicial articles of their respective constitutions, although the article invites serious attention to itself for adoption as a whole, on the premise of certain extremes of thinking against both legislatures and trial courts.

The consecrated work of the American Judicature Society has been joined with that of the American Bar Association and the American Law Institute in the battle for speedier justice, even as all three organizations have worked individually for reform of legal concepts.

FUNDAMENTAL FACTORS HAVE BEEN OVERLOOKED

It is time to suggest, nevertheless, that these organizations have concentrated on administrative, statistical, quantitative and supervisory means, and in so doing have rather completely overlooked the negative effect on the more important fundamental principles as well as the psychological factors that exist in the judicial process.

128 U.S.C. §§ 331-333.

and judicial councils to facilitate "the effective and expeditious administra28 U.S.C. 1332.

* Bernard G. Segal, Chairman, Standing Committee on Federal Judiciary of the American Bar Association, an address delivered under the auspices of the American College of Trial Lawyers, Federal Judicial Selection-Progress and the Promise of the Future, New Orleans, Louisiana, March 28, 1961, at page 1.

See 86 A.B.A. REP. 392, 751.

We must not overlook the influence of individual lawyers and judges, whose attitudes and acceptances have influenced administrative improvement and, perhaps of even greater significance, have impeded the adoption of changes which, at least for the time being, appear to have been backward steps in the judicial process. The movement within the Bar, by judges and practicing attorneys, by both organized and individual effort, has produced and will continue to produce results beneficial to the public interest.

But the successful operation of the judicial process depends upon the wisdom of judicial decision and, more specifically, the thinking of the individual trial judge. What that thinking produces is of the essence.

The qualification of adaptability for the Bench can only be developed in an individual by substantial experience as a trial lawyer, which will provide a practical approach to principle, a better understanding of lawyers and parties appearing before him as judge and a proficiency in the prompt dispensation of justice.

The intellect of a trial judge should embrace a complete awareness of the high importance and prestige of his office, yet even more essentially a willingness to give the fullest measure of service a willingness unquestionably affected by public esteem accorded the trial judge in recognition of his necessary long experience as an outstanding and skillful practitioner to qualify for that office. The trial judge must be placed where he belongs-on a plane of complete equality with judges of the appellate courts in matters of salary, dignity, honor and administrative authority. To give him this personal awareness of his position is a vital part of the function of both law and administrative improvement.

A study of the judicial process will show that the administration of justice cannot be more adequately expedited than by improving the quality of judicial appointments through the requirement that appointees be persons of experience as trial lawyers.

Emphasis has been given to such axiomatic qualifications as high character and a proper moral concept of the sacred duty of the judge, along with promptness in dispatch of legal business, sound temperament, professional ability and the absence of intellectual arrogance. These last characteristics are not primarily important when the real issue is the deliverance of just and timely decisions. Wide previous experience in legal trial practice is certainly axiomatic for judicial preparedness, but the necessity of such experience seems to remain controversial. This writer maintains the qualification of substantial experience as a trial attorney is an indispensable one.

Bernard G. Segal, when Chairman of the Standing Committee on Federal Judiciary of the American Bar Association, stated that:

"Our Committee has not adopted the rigid view that only trial lawyers should be considered, but we have taken the position, from which we have refused to recede, that in the case of a vacancy in the United States District Court-a trial Bench called upon to conduct the most complex and varied litigation—a lawyer to be considered must have a reasonable amount of trial experience, preferably at least some of it in the federal courts.""

But the absolute necessity of the qualification of long trial experience as a lawyer should be removed from the area of controversy. Such experience should become an essential requirement for appointment to the judiciary, whether state or federal, trial or appellate.

TRIAL PRACTICE IS THE BASIC EDUCATION FOR A TRIAL JUDGE

The basic education necessary to qualify a judge before he assumes office is actual long, varied legal practice. A lawyer without it cannot become an effective trial judge. Such indispensable experience cannot be acquired after appointment to the bench; it is a qualification without which a judge is handicapped, no matter how long he may serve; it must be learned in the pit on the other side of the bench. The requisite of at least fifteen years, preferably twenty or more, in busy general practice with a considerable part of that practice in the courts, is not extreme but the necessary minimum. Nor would it be unreasonable to demand experience of at least ten years as a trial judge of general jurisdiction before appointment to an appellate Bench.

This essential education obtained in the actual practice of law, let me repeat, can be acquired in no other way. Such experience makes known the habitual and typical duties of the trial judge and the precise demands made upon

Note 3 supra at page 5.