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906, RETIREMENT OF JUSTICES AND JUDGES

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GOVERNMENT 3 E

StorageA11600 662899 

lAY 1 4 1970

THE LIBRARY HEARINGS

KANSAS STATE IINIVER&ITY BEFORE

SUBCOMMITTEE NO. 5

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

NINETY-FIRST CONGRESS

SECOND SESSION

ON

S. 1508 and H.R. 12911

TO IMPROVE JUDICIAL MACHINERY BY AMENDING

PROVISIONS OF LAW RELATING TO THE RETIREMENT

OF JUSTICES AND JUDGES OF THE UNITED STATES

MARCH 3, 1970

Serial No. 16

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

43-336 WASHINGTON : 1970
11111.7,

COMMITTEE ON THE JUDICIARY

EMANUEL CELLER, New York, Chairman

MICHAEL A. FEIGHAN, Ohio

PETER W. RODINO, JR., New Jersey

BYRON G. ROGERS, Colorado

HAROLD D. DONOHUE, Massachusetts

JACK B. BROOKS, Texas

JOHN DOWDY, Texas

ROBERT W. KASTENMEIER, Wisconsin

WILLIAM L. ST. ONGE, Connecticut

DON EDWARDS, California

WILLIAM L. HUNGATE, Missouri

JOHN CONYERS, JR., Michigan

ANDREW JACOBS, JR., Indiana

JOSHUA EILBERG, Pennsylvania

WILLIAM F. RYAN, New York

JEROME R. WALDIE, California

EDWIN W. EDWARDS, Louisiana

WALTER FLOWERS, Alabama

JAMES R. MANN, South Carolina

ABNER, J. MIKVA, Illinois

WILLIAM M. McCULLOCH, Ohio

RICHARD H. POFF, Vfrginia

CLARK MAcGREGOR, Minnesota

EDWARD HUTCHINSON, Michigan

ROBERT McCLORY, Illinois

HENRY P. SMITH III, New York

THOMAS J. MESKILL, Connecticut

CHARLES W. SANDMAN, JR., New Jersey

TOM RAILSBACK, Illinois

EDWARD G. BIESTER, JR., Pennsylvania

CHARLES E. WIGGINS, California

DAVID W. DENNIS, Indiana

HAMILTON FISH, JR., New York

R. LAWRENCE COUGHLIN, Pennsylvania

VVILEY MAYNE, Iowa

BESS E. DICK, Staff Director

BENJAMIN L. ZELENKO, General Counsel

KENNETH R. HARKINS, Chief Counsel, Antitrust Subcommittee

GARNER J. CLINE, Counsel

HERBERT FUCHS, COUn8e/

WILLIAM P. SHATTUCK, Counsel

JEROME ZEIFMAN, Counsel

CHARLES J. ZINN, Law Revision Counsel

DONALD G. BENN, Associate Counsel

FRANKLIN G. POLK, Associate Counsel

SUBCOMMITTEE No. 5

EMANUEL CELLER, New York, Chairman

PETER W. RODINO, JR., New Jersey

BYRON G. ROGERS, Colorado

HAROLD D. DONOFIUE, Massachusetts

JACK BROOKS, Texas

ROBERT W. KASTENMEIER, Wisconsin

DON EDWARDS, California

WILLIAM M. McCULLOCH, Ohio

CLARK MAcGREGOR, Minnesota

ROBERT McCLORY, Illinois

TOM RAILSBACK, Illinois

RICHARD H. POFF, Virginia

EDWARD HUTCHINSON, Michigan

BENJAMIN L. ZELENKO, General Counsel

THOMAS E. MOONEY, Associate Counsel
CONTENTS

Page

Text of bills 1

Testimony of—

Celler, Hon. Emanuel, a U.S. Representative in Congress from the

State of New York 1, 2

Foley, William E., Esquire, Acting Director, Administrative Office

of the U.S. Courts 21

McCulloch, Hon. William M., a U.S. Representative in Congress

from the State of Ohio 3

Rehnquist, William H., Esquire, Assistant Attorney General of the

United States 8

Communications of—

Burger, Hon. Warren E., the Chief Justice of the United States, letter

to Chairman Emanuel Celler, February 10, 1970 

Clark, Hon. Tom C., Director, the Federal Judicial Center, letter to

Chairman Emanuel Celler, February 13, 1970 

(in)

S. 1508

RELATING TO THE RETIREMENT OF JUSTICES AND

JUDGES OF THE UNITED STATES

TUESDAY, MARCH 3, 1970

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 5 OF THE COMMITTEE ON THE JUDICIARY,

Washington,D.C.

The subcommittee met at 10 a.m., pursuant to recess, in room 2141,

Rayburn House Office Building, Hon. Emanuel Geller (chairman of

the committee) presiding.

Present: Representatives Celler, Rodin°, Rogers, Edwards (of

Calif.), McCulloch, MacGregor, McClory, Railsback, Poff, and

Hutchinson.

Staff members present: Benjamin L. Zelenko, general counsel, and

Thomas E. Mooney, associate counsel.

The CHAIRMAN. The committee will come to order.

The subject of hearings this morning is legislation to amend the

judicial code to liberalize retirement of justices and judges of the

United States. S. 1508 and a companion bill which I sponsored, H.R.

12911, which are the subject of these hearings, will be placed in the

record at this point.

(The documents referred to follow:)

[S. 1508, 91st Cong., first sem.]

AN ACT To improve judicial machinery by amending provisions of law relating to the

retirement of justices and judges of the United States

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That section 371(b) of title 28, United

States Code, is amended by inserting immediately before the period at the end

of the first sentence the following: ", or at any age after serving at least twenty

years continuously or otherwise."

(b) The first paragraph of section 373 of title 28, United States Code, is

amended by inserting immediately after the last comma therein the following:

"or at any age after serving at least twenty years continuously or otherwise."

Passed the Senate October 29, 1969.

Attest: FRANCIS R. VALEO,

Secretary.

[H.R. 12911, 91st Cong., first sess.]

A BILL To improve judicial machinery by amending provisions of law relating to the

retirement of justices and judges of the United States

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That section 371(b) of title 28, United States

Code, is amended by inserting immediately before the period at the end of the

first sentence the following: ", or at any age after serving at least twenty years

continuously or otherwise."

(1)
2

The CHAIRMAN. S. 1508, as passed by the other body, extends retirement benefits to Federal judges after 20 years of service irrespective

of their age. The Judicial Conference of the United States at its

October 1969 meeting approved the principle of legislation to provide

judicial retirement after 20 years of service providing the retiring

judge has reached the age of 60 years.

The Chair has received a communication dated February 10 from

the Chief Justice of the United States and a letter dated February 13

from the Director of the Federal Judicial Center ( former Associate

Justice Tom Clark) recommending enactment of legislation on this

subject embodying the principles adopted by the Judicial Conference.

These letters will be placed in the record at this point.

( The documents referred to follow:)

SUPREME COURT OF THE UNITED STATES,

Washington, D.C., February 10, 1970.

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: At its fall meeting in October 1969 the Judicial Conference of the United States voted its unanimous approval of legislation which

would amend section 37:1(b) of title 28, United States Code, by providing that

Federal judges may retire at age 60 after serving at least 20 years. This action

was taken after the matter had been thoroughly studied by the Conference's

Committee on Court Administration and was pursuant to its recommendation.

At the time the Conference was cognizant, too, of the American Bar Foundation

study on the Federal courts which recommended in its final report that Federal

judges be permitted retirement after 15 years of service irrespective of age.

This Bar Foundation study was the genesis of S. 1508, 91st Congress, which

would amend title 28, section 371 (b), in accordance with the study's recommendation.

The considerations which moved the Judicial Conference and its committee in

recommending retirement at age 60 after at least 20 years' service were many.

First of all, it should be understood that the word "retirement" as used in section

371 (b) does not mean "retirement" in the usually accepted sense. If a judge elects

to "retire" under section 371(b), he remains a judge and continues to serve.

Retirement means only that after 20 years the amount of work expected from

the judge will be reduced. There are a great variety of important judicial and

quasi-judicial duties which can be performed by such judges. Specifically, such

a judge will be available for assignments in circuits and districts in addition to

his own where the condition of the calendar requires additional temporary help.

Increasingly we have used and I contemplate expanded use of senior judges as

special masters in complex litigation invoking the original jurisdiction of the

Supreme Court. Such judges are also useful in helping to train newly appointed

judges. Seminars for this purpose have been conducted for the past few years.

We hope in the immediate future to increase their number and the scope of the

training. In this way we hope to get maximum use out of a judge who feels that

he has served his time as a full-time judge and wants a slight respite from a

full schedule and some diversity in his judicial activity. In this way, too. we

hope to reduce the number of judges applying for retirement based on disability.

Even where a case cannot be made out for full disability under title 28, section

372, after 20 years many judges do slow down for one reason or another and

suffer under the heavy and ever increasingly heavier burden of the calendar of

cases. The proposed legislation would give an option to judges who qualify to

continue in very useful service and thus avoid seeking full retirement for

disability.

A 1968 Report of the American Bar Foundation concluded:

3. Stronger incentives should be provided for acceptance of senior status

by circuit judges eligible to do so. A minimum liberalization of eligibility

should provide that judges could go on senior status at age 65 if they have

served for 10 years. It would be justifiable to go further, and provide that a

judge could go on senior status upon 15 years serVice (regardless of age) or

at age 65 (regardless of years of service). Senior Judges provide a useful

source of additional skilled manpower.
3

4. A "pool" of additional circuit judgeships, perhaps five or six in number,

should be created to supply additional manpower where it is most needed.

These judges could be based in the Federal Judicial Center in Washington,

D.C. With modern transportation and administrative methods, this device

could permit deployment of additional judicial manpower without enlarging

the permanent complement of judges on the bench of any circuit.

I believe that passage of this proposed legislation, now embodied in H.R.

12911, would be in the interest of sound administration, particularly to provide a

reservoir of experienced and trained men for special tasks in which long judicial

experience is invaluable. I am confident, too, that it would have a direct tendency

to increase the efficiency of the Federal judiciary. As the judicial officer primarily

charged by the Congress with responsibility for the overall administration of

the Federal courts, I strongly recommend favorable action on H.R. 12911.

Cordially,

WARREN E. BURGER.

THE FEDERAL JUDICIAL CENTER,

DOLLEY MADISON HOUSE,

Washington, D.C., February 13, 1970.

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

House of Representatives, TVa,shington, D.C.

DEAR MR. CHAIRMAN CELLER : Pursuant to your request, I write concerning

S. 1508 which has to do with the retirement of Federal judges.

As the bill is presently written it would permit an active judge to elect to go

on senior status if he has served in the Federal judiciary for 20 years. It might

be wise that this be amended to also require the judge to have obtained the age

of 60 years.

As you will remember, the American Bar Association Committee on Accommodating the Workloads of the U.S. Courts of Appeals of which Bernard

G. Segal was chairman, recommended that a judge be permitted to go on senior

status upon completing 15 years of service regardless of age, or at age 65 regardless of service. I believe these recommendations are realistic and that the best

interest of the Federal judicial system would be served by enlarging the right to

retirement. However, as I indicated above, I believe the provisions of S. 1508

together with the 60 year of age requirement would be quite sufficient.

I am therefore pleased to endorse S. 1508 as indicated and I trust that your

committee will, after study, give the same favorable recommendation.

With high esteem and best wishes, I am

Sincerely yours,

Tom C. CLARK, Director.

The CHAIRMAN. Our first witness this morning is the Honorable

William H. Rehnquist, Assistant Attorney General, Office of Legal

Counsel.

Mr. Assistant Attorney General, we would be glad to hear from

you.

Mr. McCuLLocx. Mr. Chairman?

The CHAIRMAN. Mr. McCulloch?

Mr. McCuLLocH. With the permission of the Chair, I have a rather

lengthy statement that I would be pleased to have at this point,

inserted in the record. It will be helpful to the committee throughout

these hearings.

The CHAIRMAN. Without objection, it will be placed in the record.

(The document referred to follows:)

STATEMENT OF HON. WILLIAM M. MCCULLOCH, A U.S. REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO

Mr. Chairman, today we begin one day of public hearings on S. 1508, retirement

of Federal judges. Hearings were not held on this particular bill, except as one

of a dozen or so bills pending before a Senate Subcommittee on the Improvements

in Judicial Machinery. On June 2 and 4, 1969, the Senate subcommittee conducted

hearings on the Judicial Reform Act—S. 1506 and contained in that package was
4

a section pertaining to Federal judge retirement. In other words, judge retirement

received very little attention in the course of these hearings. On October 29, 1969,

The resignation and retirement provisions for Federal judges are embraced in

sections 371, 372 and 373, title 28, United States Code, section 371(a) provides

that any judge of the United 'States appointed to hold office during good behavior,

who attains the age of 70 years and has served at least 10 years continuously or

otherwise, may resign and during the remainder of his lifetime "shall * * * receive the salary which he was receiving when he resigned." The judge who resigns

will continue to receive as a pension the salary he was receiving at the time of his

resignation for the rest of his life, but would not receive any increases in pension

when Congress authorizes increases in judicial salaries thereafter. The pension

of the resigned judge is not protected by the Constitution.' He can practice law

if he wishes, since the provisions of section 454, title 28, United States Code,

do not apply to him,' or pursue any other gainful occupation. S. 1508 does not

amend section 371 (a).

Section 371(b), United States Code is the subsection most frequently used by

judges desiring to take retired or senior judge status. This subsection provides

that any Article III judge "may retain his office, but retire from regular active

service" at the age of 70 if he has served 10 years continuously or otherwise,

or may retire from regular active service if he has attained the age of 65 years

after 15 years of service performed continuously or otherwise, and thereafter

shall "continue to receive the salary of the office." The main thrust here is that

the judge who retires under section 371(b) is still a judge. That is, he would

retain his judge status, although retired and would be subject to the prohibitions

of the Federal code relating to Federal judges. For example, a judge retired under

section 371(b) could not practice law.4

The judge, under section 371(b), remains a judge and his salary is constitutionally protected. This should be distinguished from a judge eligible to resign

at age 70 5 with 10 years of service because a resigned judge is no longer a judge,

his salary is not protected by the Constitution,' he may pursue other occupations

including the practice of law, and he is no longer subject to case assignments.

A retired judge, on the other hand, under 371(b) is still a judge and may do

such work as he pleases to do which the Chief Justice of the United States, the

Chief Judge of his circuit, or the Judicial Council of his circuit may assign

or designate him to perform.

It is this section, 371(b), that is mainly affected by S. 1508. The first section

of S. 1508 amends section 371(b) to provide that a judge or justice of the United

States may retire with the salary of his office after 20 years of service, continuously or otherwise, regardless of his age.

The phrase "judge of the United States" is defined in section 451 of title 28,

United States Code, and includes judges of the court of appeals, district courts,

Court of Claims, Court of Customs and Patent Appeals, customs court and any

other court created by act of Congress, the judges of which are entitled to hold

office during good behavior.'

Section (b) of S. 1508 was added in Senate subcommittee and is not contained

in Mr. Celler's bill, H.R. 12911.8 The purpose of this provision is to provide the

judges of the district courts for the territories and possessions of the United

States with retirement benefits similar to those provided to the justices and

judges of the United States under the provision of the first section of the bill.

This section of S. 1508 amends the first paragraph of section 373 of title 38,

United States Code, to provide that a judge of the U.S. District Court for the

District of the Canal Zone, the District Court of Guam, or the District Court

of the Virgin Islands may resign after 20 years of service regardless of age and

continue during the remainder of his life to receive the salary he received when

he relinquished office.

1 See Congressional Record, Oct. 28, 1969, pp. S.13368—S.13372. and Oct. 29, 1969, pp.

S 13389—S 13390 and S 13396.

2 Booth v. United States, 291 U.S. 339, 348-50 (1934).

3 Sec. 454 provides: "Any justice or judges appointed under the authority of the United

States who engages in the practice of law is guilty of a high misdemeanor."

4 Sec. 454, title 28, United States Code.

5 Sec. 371 (a) , title 28, United States Code. (S. 1508 does not amend this subsection.)

6 He continues to receive the salary at which he retired.

7 As of June 30, 1969, there were 97 circuit judges, 341 district judges, 21 special court

judges, for a total of 459.

8 See attached agenda of bills pending before the Judiciary Committee related to Federal

judge retirement.
5

The first paragraph of section 373 is particularly interesting because it allows

a judge in a territorial court to resign at age 70 with 10 years of continual service

or at age 65 with 15 years of continual service. This is similar to 371(a) which

allows a district or a circuit judge to resign at age 70 with 10 years of continual

service. However, a district or circuit judge cannot resign until he is at least

70 years old, whereas, under the present law a territorial judge can resign as early

as age 65. The Senate passed bill, S. 1508, does not affect 371 (a) with reference to

the resignation of article III judges; that is, they may resign at age 70 after 10

years service. However, S. 1508 will affect section 373 with regard to the resignation of territorial court judges; they will be permitted to resign after 20 years

of continual service regardless of age with full pay and permitted to pursue other

employment.

Mr. Chairman, in the interest of developing as complete a record as possible on

this subject. I would like to have the following documents reproduced in the

record:

1. Senate Report No. 91-449, which is very brief.

2. A list of judges eligible to retire as of July 1, 1970. This list was submitted to the subcommittee by the Administrative Office of U.S. Courts.

3. An agenda of bills pending before the House Judiciary Committee related

to federal judge retirement.

BILLS RELATED TO S. 1508

H.R. 12911 (Mr. Celler). To provide for the retirement of U.S. judges at any age

after 20 years of continual service.

H.R. 7507 (Messrs. Railsback Anderson of Illinois, Biester, Carter, Fisher,

Hastings. Hosmer, Mize, Pirnie, Sebelius, Schwengel, Sikes and Utt). To provide

for the mandatory acceptance of senior status at age 70 for judges and justices

of the United States.

Related to H.R. 7507 are: H.R. 7739, H.R. 7782, H.R. 8014, H.R. 8939, H.R.

8960.

H.R. 12815 (Mr. Rhodes). To provide for the mandatory retirement of chief

judges of circuit and district courts at the age of 66.

H.R. 14231 (Mr. Udall). To change the provisions of section 371 of title 28.

[S. Rept. 91-449, 91st Cong., first sem.]

PROVIDING FOR THE RETIREMENT OF U.S. JUDGES AFTER 20 YEARS OF SERVICE

The Committee on the Judiciary, to which was referred the bill ( S. 1508) to

amend provisions of law relating to the retirement of justices and judges of the

United States, having considered the same, reports favorably thereon, with

amendment, and recommends that the bill, as amended, do pass.

AMENDMENT

The bill is amended by adding a new section (b) to its provisions as follows:

"(b) The first paragraph of section 373 of title 28, United States Code, is

amended by inserting immediately after the last comma therein the following:

"or at any age after serving at least twenty years continuously or otherwise."

PURPOSE OF AMENDMENT

The amendment is designed to provide the judges of the district courts of the

territories and possessions with retirement benefits similar to those provided to

the justices and judges of the United States under the provisions of the first section of the bill.

PURPOSE OF THE BILL

The purpose of the proposed legislation, as amended, is to provide retirement

benefits to Federal judges and justices after 20 years of service regardless of their

age.

STATEMENT

Retirement benefits play an increasingly significant role in attracting the most

capable people to the most responsible positions. It is important, therefore, to

constantly review the benefits available to key government officials, including

the members of the judiciary. Although the full pay benefits available to federal

43-336-70----2
6

judges upon retirement compare favorably with any retirement system in business, industry or the private practice of law, they are obtainable under existing provisions of law only at age 70 after 10 years of service or at age 65 after 15

years of service. S. 1508 is designed to improve the present retirement system by providing judges with benefits after 20 years of service regardless of age.

S. 1508, however, will not only serve to make the Federal bench more attractive

to younger, more vigorous men, but will serve also to increase available judicial

manpower. Each time a judge accepts senior judge status and retires, leaving regular active service, a vacancy occurs on his court, a vacancy that can be filled by the appointment of a new regular active service judge. The judge on senior status may continue to perform such judicial duties as he is willing and able to undertake. Almost without exception, those judges who take senior status continue to carry a substantial workload. The "retirement" of a judge thus means

a bonus of increased manpower to the retired judge's court, increased manpower that can help alleviate existing backlogs and avoid future ones. Both the retired judge and his newly appointed successor can be employed in the disposing of the business of the court, where before only one could be so employed.

In fact, few aspects of the Federal judicial system have been more beneficial

to the country than those which enable judges to retire from active service, and, yet, continue to perform such judicial duties as they are willing and able to undertake. Without the work of the present senior judges, our Federal judicial

system would be overwhelmed by its caseload. By providing for retirement after 20 years of service regardless of age, those judges who could take senior judge status under the amendment would be under 65 and fully able to continue to

carry a full workload. It is difficult to disagree with the following statement by Albert Branson Mans, himself a great senior judge:

"One of the great benefits of the Federal judicial retirement system is that retired senior judges are available for especially assigned judicial duty and

can contribute a very large amount of time to judicial work, thus greatly bene- fiting the system by assisting in those areas where the caseloads are heaviest. As retired judges get older, of course, they become less able to make this con- tribution, but judges approaching age 70 are mostly vigorous and able, and to facilitate their retirement will be to add very substantially to judicial manpower in places where it is badly needed.'

SECTIONAL ANALYSIS

The first section of S. 1508 amends subsection (b) of section 371 of title 28, United States Code, to provide that a judge or justice of the United States may retire with the salary of his office after 20 years of service, continuously or other- wise, regardless of his age.

The phrase "judge of the United States" is defined in section 451 of title 28, United States Code, and includes judges of the courts of appeals, district courts,

Court of Claims, Court of 'Customs and Patent Appeals, Customs Court and any other court created by act of Congress, the judges of which are entitled to hold office during good behavior. The phrase "justice of the United States", as defined in section 451, includes the Chief Justice of the United States and the Associate Justices of the Supreme Court.

Section (b) of S. 1508 amends the first paragraph of section 373 of title 28, United States Code, to provide that a judge of the United States District Court

for the District of the 'Canal Zone, the DiStrict Court of Guam, or the District

Court of the Virgin Islands may resign after 20 years of service regardless of age

and continue during the remainder of his life to receive the salary he received

when he relinquished office.

Attached hereto, as part of this report, is a list of active Federal judges completing 20 or more years of service during calendar year 1969 who would not be eligible for retirement in 1969 under existing provisions of law.

CHANGES IN EXISTING LAW

In compliance with subsection (4) of rule XXIX of the Standing Rules of the Senate, changes in existing law made by the bill as reported, are shown as

follows (existing law proposed to be 'omitted is enclosed in black brackets, new

matter is printed in italic, existing law in which no change is proposed is shown

in roman) :

1 Hearings on S. 1506-1516 before Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 91st Cong., first sess. (1969)
7

TITLE 28, UNITED 'STATES CODE

CHAPTER 17-RESIGNATION AND RETIREMENT OF JUDGES

§ 371. RESIGNATION OR RETIREMENT FOR AGE

(b) Any justice or judge of the United States appointed to hold office during

good behavior may retain his office but retire from regular active service after

attaining the age of seventy years and after serving at least ten years continuously or otherwise, or after attaining the age of sixty-five years and after serving at least fifteen years continuously or otherwise, or at any age after serving

at least twenty years continvuously or otherwise. He shall, during the remainder

of his lifetime, continue to receive the salary of the office. The President shall

appoint, by and with the advice of the Senate, a successor to a justice or judge

who retires.

§ 373. JUDGES IN TERRITORIES AND POSSESSIONS

Any judge of the United States District Court for the District of the Canal

Zone, the District Court of Guam, or the District Court of the Virgin Islands,

who resigns after attaining the age of seventy years and after serving at least

ten years, continuously or otherwise, or after attaining the age of sixty-five years

and after serving at least fifteen years, continuously or otherwise, or at any age

after serving at least twenty years continuously or otherwise, shall continue during the remainder of his life to receive the salary he received when he relinquished office.

PRESENT (ACTIVE) JUDGES COMPLETING 20 OR MORE YEARS OF SERVICE DURING CALENDAR YEAR 1969 AND

NOT ELIGIBILE FOR RETIREMENT IN 1969 UNDER EXISTING PROVISIONS OF LAW

Court Name Date of birth Date of oath

2d Circuit_ Kaufman, Irving R June 24,1910 Nov. 1,1949

7th Circuit Swygert, Luther M Feb. 7,1905 Oct. 20,1943

10th Circuit Hill, Delmas C Oct. 9,1906 Oct. 27,1949

District of Columbia Circuit HazeIon, David L Sept. 3,1909 Nov. 1,1949

Do Tamm, Edward Allen Apr. 21,1906 June 28,1948

Do Wright, J Skelly Jan. 14,1911 Oct. 26,1949

Customs court Ford, Morgan Sept. 8,1911 July 28,1949

Alabama, North Lynne, Seybourn H July 25,1907 Jan. 9,1946

Illinois, North Campbell, William J Mar. 19,1905 Oct. 22,1940

Massachusetts Wyzanski, Charles E May 27,1906 Jan. 26,1942

Missouri, East Harper, Roy W July 26,1905 Aug. 11,1947

New York, North Foley, James T July 9,1910 Feb. 16,1949

Oregon Solomon, Gus 1 Aug. 29,1906 Nov. 14,1949

Texas, South Connally, Ben C Dec. 28,1909 Nov. 14,1949

Wisconsin, East Tehan, Robert E Jan. 7,1905 June 1,1949

Judges eligible to retire as of July I, 1970

Date eligible

Judge, circuit or district -to retire

Leonard P. Moore, 2d circuit July 2, 1968

J. Joseph Smith, 2d circuit Jan. 25, 1969

William Henry Hastie, 3d circuit Nov. 17, 1969

Simon E. Sobeloff, 4th circuit July 20, 1966

Herbert S. Boreman, 4th circuit Sept. 21, 1967

Albert V. Bryan, 4th circuit July 23, 1964

Bryan Simpson, 5th circuit May 30, 1968

Joe McDonald Ingraham, 5th circuit Aug. 30, 1969

Paul C. Weick, 6th circuit Aug. 25, 1969

Latham Castle, 7th circuit Feb. 27, 1970

Luther M. Swygert, 7th circuit Feb. 7, 1970

Martin D. Van Oosterhout, 8th circuit Sept. 9, 1969

Stanley N. Barnes, 9th circuit May 1, 1970

James M. Carter, 9th circuit Mar. 11, 1969

Alfred P. Murrah, 10th circuit Oct. 27, 1969

Jean S. Breitenstein, 10th circuit June 3, 1969

George B Harris, California, North Aug. 16, 1966
8

Judges eligible to retire as of July 1, 1970-Continued

Date eligible Judge, circuit or district to retire

Albert C. Wollenberg, California, North June 13, 1970

Edward M. Curran, District of Columbia May 10, 1968

William A. Bootle, Georgia, middle June 2, 1969

Fred M. Taylor, Idaho July 26, 1969

William J. Campbell, Illinois, north Mar. 19, 1970

J. Sam Perry, Illinois, north Aug. 28, 1966 Julius J. Hoffman, Illinois, north July 7, 1965

Mac Swinford, Kentucky, east Dec. 23, 1964

Herbert W. Christenberry, Louisiana, east Dec. 30, 1962

Roszel C. Thomsen, Maryland , May 17, 1969

Francis J. W. Ford, Massachusetts Dec. 23, 1952

Ralph M. Freeman, Michigan east June 29, 1969

Theodore Levin, Michigan, east Feb. 18, 1962

Robert Van Pelt, Nebraska 1 Sept. 9, 1967

Reynier J. Wortendyke, Jr., New Jersey June 28, 1965

John R. Bartels, New York, east Aug. 13, 1969

Harold P. Burke, New York, west June 6, 1960

Sidney Sugarman, New York, south Sept. 4, 1969

Sylvester J. Ryan, New York, south Nov. 10, 1962

John F. X. Mc Gohey, New York, south Jan. 7, 1964

Edward Weinfeld, New York, south May 14, 1966

Girard E. Kalbfleisch, Ohio, north Oct. 16, 1969

James C. Connell, Ohio, north Sept. 20, 1967

Stephen S. Chandler, Oklahoma, west Sept. 13, 1964

John W. Lord, Jr., Pennsylvania, east May 28, 1969

Rabe Ferguson Marsh, Pennsylvania, west Apr. 26, 1970

John L. Miller, Pennsylvania, west June 18, 1969

Edward William Day, Rhode Island Nov. 30, 1968

Axel J. Beck, South Dakota Apr. 1, 1968

Robert L. Taylor, Tennessee, east Dec. 20, 1964

Allen B. Hannay, Texas, south Aug. 18, 1957

Willis W. Ritter, Utah Oct. 25, 1964

A. Sherman Christensen, Utah June 9, 1970

William J. Lindberg, Washington, west Dec. 17, 1969

George H. Boldt, Washington, west Dec. 28, 1968

Robert E. Tehan, Wisconsin, east Jan. 7, 1970

Ewing It. Kerr, Wyoming Jan. 21, 1970

James R. Durfee, U.S. Court of Claims May 2, 1970

Paul P. Rao, U.S. Customs Court June 15, 1964

1 To retire upon appointment and qualification of a successor.

STATEMENT OF HON. WILLIAM H. REHNQUIST, ESQ., ASSISTANT

ATTORNEY GENERAL OF THE UNITED STATES, DEPARTMENT OF

jUSTICE

Mr. REHNQUIST. Mr. Chairman, members of this committee, I welcome this chance to appear before you as a representative of the Department of Justice in support of S. 1508, the judicial retirement bill.

Under existing law, which is set out in 28 U.S.C. 371 (b) , Federal

judges may not retire with pay before the age of 65. S. 1508 would

remove this limitation for those judges completing 20 years of service

at an earlier date. Upon completion of such period, a judge would be

immediately eligible for retirement, regardless of his age.

The elimination of the present bar to retirement by judges under 65

would be desirable for several reasons. The most important of these

inheres in the nature of our judicial retirement system.

S. 1508, it must be remembered, deals with retirement, not resignation. The difference is an important one. Resignation involves total
9

relinquishment by a judge of his position; in retirement, however, the

judge remains a member of the judiciary.

The effect of retirement is twofold. The first is that the retired judge

becomes a senior judge, in which capacity he may continue his judicial

duties to the extent that he is willing and able to do so.

The second is that a vacancy arises which must be filled by the President with the advice and consent of the Senate; in other words, the

position formerly held by the retiring judge is deemed vacant despite

the fact that the retiring judge remains available, if he desires, to discharge judicial functions. The short of all this is that the judiciary

receives needed additional manpower each time that a sitting judge

retires and assumes senior judge status.

S. 1508 would make it possible for the first time for judges under 65

to elect senior judge status. It is likely, therefore, that judges availing

themselves of the opportunity afforded by S. 1508 would be fully able

to carry substantial workloads. Since senior judges can be assigned to

those areas where caseloads are heaviest, significant benefits in judicial

administration can be expected. The prestigious American Bar Foundation Project Advisory Committee has urged extension of the eligibility requirements for this reason. In its "Report of Recommendations

on Accommodating the Workload of the U.S. Courts of Appeals", the

committee proposed that stronger incentives be provided for acceptance of senior judge status. The committee commented: "Senior judges

provide a useful source of additional skilled manpower."

A nother positive feature of S. 1508 is demonstrated by a table prepared for presentation here. I address your attention to table A, which

is attached to the back of my testimony, which contains data on 17

presently active judges of our Federal courts.

(The document referred to follows:)

TABLE A

[This table lists those active judges who will have completed 20 or more years of service by the end of 1970. Under S.

1508, each would be eligible for retirement immediately upon completing such service. Under existing law, however,

only upon reaching 65 do those listed below become eligible]

Court

(1)

Name

(2)

Date of

birth

(3)

Present Date of

age oath

(4) (5)

Years of

service to

date

(6)

2d circuit Kaufman, Irving R June 24,1910 59 Nov. 1,1949 20

10th circuit Hill, Delmas C Oct. 9,1906 63 Oct. 27,1949 20

District of Columbia circuit Bazelon, David L Sept. 3,1909 60 Nov. 1,1949 20

Do Tamm, Edward A Apr. 21,1906 63 June 28,1948 21

Do Wright, J Skelly Jan. 14,1911 59 Oct. 26,1949 20

Court of Customs and Patent Worley, Eugene Oct. 10,1908 61 Apr. 4,1950 19

Appeals.

Customs Court Ford, Morgan Sept. 8,1911 58 July 28,1949 20

Alabama, north Lynne, Seybourn H July 25,1907 62 Jan. 9,1946 24

California, north Carter, Oliver 1 Apr. 7,1911 58 Oct. 9,1950 19

Illinois, north Campbell, William 1 Mar. 19,1905 64 Oct. 22,1940 29

Indiana, south Steckler, William E Oct. 18,1913 56 Apr. 15,1950 19

Massachusetts Wyzanski, Charles E May, 27,1906 63 Jan. 26,1942 28

Missouri, east Harper, Roy W July 26,1905 64 Aug. 11,194,7 22

New York, north Foley, James T July 9,1910 59 Feb. 16,1949 21

Oregon Solomon, Gus J Aug. 29,1906 63 Nov. 14,1949 20

Pennsylvania, west Marsh, Rabe Ferguson, Jr__ Apr. 26,1905 64 June 26,1950 19

Texas, south Connally, Ben C Dec. 28,1909 60 Nov. 14,1949 20
10

TABLE B

(This table lists those judges referred to in table A who would be affected if a minimum age requirement of 60 were included in the bill. Those listed below would be ineligible for retirement until the date shown in col. 7, despite having

completed 20 years of service at an earlier date(

Court

(1)

Name

(2)

Date of

birth

(3)

Present

age

(4)

Date of

oath

(5)

Years of

service

to date

(6)

2d circuit Kaufman, Irving R June 24,1910 59 Nov. 1,1949 20

District of Columbia circuit_ Wright, J. Skelly Jan. 14,1911 59 Oct. 26, 1949 20

Customs Court Ford, Morgan Sept. 8, 1911 58 July 28, 1949 20

California, north Carter, Oliver J Apr. 7,1911 58 Oct. 9, 1950 19

Indiana, south 

New York, north 

Steckler, William E

Foley, James T 

Oct 18,1913

July 9, 1910

56

59

Apr. 15, 1950

Feb. 16,1949

19

21

Date eligible

for retirement (60th

birthday)

(7)

June 24, 1970

Jan. 14, 1971

Sept. 8, 1971

Apr. 7, 1971

Oct. 18, 1973

July 9,1970

Mr. REHNQUIST. As columns 5 and 6 of the table indicate, each has

completed or will complete during 1970, 20 years of service on the

bench. None of these judges, however, is yet 65 and therefore none is

qualified for retirement under existing law, despite his long term of

service. Judges Campbell and Wyzanski, for example, both of whom

were appointed at the age of 35, have served for 29 and 28 years, respectively.

The CHAIRMAN. If S. 1508 had been adopted some years ago, and if

Judge Wyzanski had become a judge at 35, he could have retired at

55.

Mr. REHNQUIST. That is right, Mr. Chairman.

Judge Lynne, appointed at 38, has served for 24 years. Judge Steckler, appointed at 36, will complete his 20 years on the bench this April.

Yet, under existing law, he is ineligible for retirement until late 1978.

'These facts are illustrative of the position confronting Federal

judges appointed at relatively young ages. The Department believes

that S. 1508 is both necessary and appropriate to deal with this situation. We should do all we can to encourage the outstanding younger

members of the bar to accept Federal judgeships.

S. 1508 is a proper step in that direction. For these reasons, the Department is in agreement with the fundamental objective of S. 1508,

which is to eliminate the age 65 requirement for retirement of judges

who have 20 years of service on the bench.

Thank you.

The CHAIRMAN. - How many judges now sitting could retire in 1970?

Mr. REHNQUIST. The ones who could retire in 1970, Mr. Chairman,

are indicated in table A 17.

The 'CHAIRMAN. How many of those are circuit judges and how many

district court judges?

Mr. REHNQUIST. There are five circuit court judges, Mr. Chairman,

Judges Kaufman, Hill, Bazelon, Tamm, and Wright, and the remainilia are either district judges or judges of the Customs Court or Court

of Customs and Patent Appeals.

Mr. ZELENKO. Mr. Rehnquist, I understand that the ABA supported

the principle of an earlier retirement provision for Federal judges.

However, do you know 'whether that support applied only to circuit

court judges or °nix to district court judges, or both?
11

Mr. REHNQUIST. The foundation report that I saw, and I am not sure

this is what you would call the official ABA position in talking about

a pool of senior judges, I think it was dealing primarily in terms of

circuit judges.

However, I believe the ABA has in principle endorsed the idea of

retirement for both.

Mr. ZELENKO. Does the Department have any idea what the additional cost would be, if legislation such as this were enacted?

Mr. REHNQUIST. I think we would defer to the Administrative Office

of the United States Courts on that.

Mr. ROGERS. Mr. Chairman?

The CHAIRMAN. Yes..

Mr. ROGERS. Why should you treat judges any different on retirement

than you do other civil service employees in the Federal Government?

Mr. REHNQUIST. Mr. Rogers, I believe that the main argument for

this bill, at least as we see it, is not to give the judges a break, but to

give the system of judicial administration a break.

For example, if this bill were passed, the judge who has served 20

years and is approximately 60 years of age who elects to retire, is in

all probability going to be very much available for continued service

not perhaps on a 5-day a week basis, but for a substantial amount of

time every year.

Because he does not have a regular judicial post, he can be assigned

to areas where there is very serious court congestion, anywhere in the

United States, and experience indicates that these judges welcome this

sort of assignment.

I think there is something of an equitable argument in favor of

changing the requirements for retirement, that is to say, that the judge

is entitled to it. But I think it is a secondary argument.

Granted this would not be treating the judge exactly as other civil

service employees. I think the argument there is that a judge who goes

on the bench at an early age, say, a judge who goes on at age 35 or

40 as opposed to one who goes on at age 50, is passing up a period of

peak earnings in the legal profession that might otherwise be available

to him, and 

Mr. ROGERS. He passed that up when he took the Federal judgeship.

He recognized that he was going to get a lifetime position

'

at a certain

salary, which has been increased tremendously in the last few years.

Mr. REHNQUIST. There is no doubt that he took it with his eyes open.

Certainly you can't justify this bill on the grounds that the man did

not know what he was getting into. But I think, even recognizing the

fact that he knew what he was doing, there is still something of an

equitable argument, but I don't think it is the main basis for urging

the bill.

Mr. ROGERS. The reason I bring it up, is because we have many people employed by the Federal Government under civil service.

There is constantly a demand that we lower the age of retirement.

There are bills introduced providing, that after a man has worked for

the Federal Government for 30 years, he can retire full pay and things

of that nature.
12

But here in the federal judiciary, you would reduce it to 20 years.

Other employees may use this as an argument for lowering their retirement requirements to 20 years of service. That is the reason I raise

the question.

Mr. REHNQUIST. I think the judiciary retirement system now does

not dovetail exactly with civil service.

Mr. ROGERS. I know. We understand that a Federal judge has a job

for life as long as he serves with good behavior. We also know that a

lot of them are accused of not working at all, or working as little as

possible.

What makes you think that if this bill is passed, that they will

retire? That is,they will go on inactive status not assigned to any particular court. And what makes you think that they will work any

harder after they get on that status than they did before?

Mr. REHNQUIST. I certainly would not want to be in a position of

representing that anyone is going to work harder after he gets his

retired status than he did before.

Mr. ROGERS. But you did say that they would be available for

work.

Mr. REHNQMST. Yes. But I would go on the assumption that most

of our Federal judges are reasonably hard working, diligent individuals. I think that those who elect retirement will very likely continue

to work at the job.

I am thinking of Judge Phillips, for example, from your State, who

continues to sit on panels all over the country, even though he is long

retired.

The CHAIRMAN. Under the Senate bill, there is no minimum age requirement. It simply authorizes retirement after 20 years of service

regardless of age. Is that right?

Mr. REHNQUIST. Yes, Mr. Chairman.

The CHAIRMAN. It was the Judicial Conference that made the suggestion that we authorize retirement after 20 years of service providing

the judge will have reached 60 years, is that right?

Mr. REHNQUIST. Yes, Mr. Chairman.

The CHAIRMAN. Which do you prefer?

Mr. REHNQUIST. The Department's basic position on that is that we

would defer to the Administrative 'Office.

The CHAIRMAN. You would defer?

MT. REHNQUIST. Yes.

The CHAIRMAN. Why would the Department of Justice not give an

opinion on that?

Mr. REHNQUIST. Simply because I think the Department has not

formulated a position. I would be glad to give you my personal opinion.

I think I would have to say I did not speak for the Department on this,

because the Department has not taken a position 

The 'CHAIRMAN. For example, if we merely provide for retirement

after 20 years' service it is possible for 17 judges to retire. The Department of Justice then would be in the position to suggest the appointment of 17 new judges.

Certainly that is a question of considerable importance to the Department of Justice.

Mr. REHNQUIST. I don't think the Department would be motivated

just by its desire to recommend the maximum.
13

The CHAIRMAN. I don't say it would be motivated. But I stress that

to show the importance of the question of minimum age 

Mr. REHNQUIST. As I say, I am more than willing to give you my

personal opinion as to the merits of the 60-year provision. I simply

have not been authorized to speak for the Department on the point.

The CHAIRMAN. Examine what would happen if you do not have

any age specified. In other words, if a judge were appointed at 30, it

is possible that there have been judges appointed at 30, he could retire at 50. If he is appointed when he is 32, he could retire at 52. If he

was appointed at 35, he could retire at 55..

That, is a rather young age to retire a judge.

Mr. REHNQUIST. Yes; it

The CHAIRMAN. It is possible under the Senate provisions.

Mr. REHNQUIST. I think the examples of judges appointed in their

30's are extremely rare. The youngest one I know of is Judge Murrah,

serving on the Tenth Circuit.

The CHAIRMAN. But when we legislate, we have to consider the possibilities.

Mr. REHNQUIST. My personal opinion is that the insertion of the 60-

year provision would be perfectly rational and sensible and would

make the bill dovetail with the existing retirement provisions. But I

can't honestly say I speak for the Department.

The CHAIRMAN. In industry and banking, as I understand it, chairmen of boards and presidents usually retire at 65. It is possible here

under the Senate bill for a judge to retire when he is far younger than

65.

It strikes me that a judge reaches greater heights of power and wisdom after 55, even after 60.

Mr. REHNQUIST. I might observe that I think if our statistics are

correct, the number of eligible judges who will opt for retirement say

at age 60 after 20 years' service will not be a large percentage. Of

those judges who have turned 65 and are eligible to retire, something

like only 25 percent have chosen to do so.

The CHAIRMAN. Maybe I have a self-interest in what I am going to

say. We hear so much about the importance of youth over age. Certainly when it comes to the judiciary we cannot disregard experience

and length of tenure, and so forth, with reference to the accumulation

of greater wisdom, .and better perspective.

In that connecton, I am reminded, if you will forgive me for repeating this, of the words of Longfellow upon his graduation, I think,

from Amherst College.

He had this to say as to age:

But why, you ask me, should this tale be told, to men grown old, or who are

growing old? It is too late! Ah, nothing is too late, til the tired heart shall cease

to palpitate.

Cato learned Greek at 80; Sophocles wrote his Grand Oedipus, and Simonides

bore off the prize of verse from his compeers, when each had numbered more

than fourscore years, and Theophrastus, at fourscore and ten, had but begun his

"Characters of Men."

Chaucer, at Woodstock with the nightingales, at 60 wrote the "Canterbury

Tales"; Goethe at Weimar, toiling to the last, completed Faust when 80 years

were past.

43-336-70-8
14

Mr. RAILSBACK. Mr. Chairman, if you will yield?

The CHAIRMAN. I will yield.

Mr. RAILSBACK. I want to say that I would personally put you in with Sophocles and also Mr. McCulloch. But I think that Mr. Rehnquist should know that there are some Members, at least this Member,

who feels that maybe what we should consider doing in the light of your

testimony, is some kind of a mandatory retirement age, say at age 70,

and permit judges if they do have the wisdom of the chairman and

some other people, to continue their services under retired status.

I think there are many of us that feel there are too many judges

that have not elected to become eligible for retirement. In other words,

have not exercised the option to retire.

Do you want to comment on that?

Mr. REHNQUIST. Yes. Mr. Railsba,ck. Mandatory retirement of a

judge obviously raises a more difficult problem than does the option of

voluntary retirement.

Certainly, I know you are not the only one who feels that perhaps

there are occasional examples of judges who should have retired before

they did. You know, even with the Supreme Court, the stories are 

Mr. RAILSBACK. Seventy percent of the American people or more

like 90 percent of the American people would agree if that question was

put to them, that is, should Supreme Court justices be retired at age 70?

I bet 90 percent of the American people would agree with that.

Mr. REHNQUIST. Yet, if we had forced that, you would have compelled the retirement, say, of Justice Brandeis when he had 10 years, 10

good years, ahead of him and Justice Holmes.

Mr. RAILSBACK. If they have all of the abilities, which they do have,

they could be designated to continue their service just like a senior

judge now can.

Mr. REHNQUIST. I think that is workable when you have, say, a court

of appeals that sits in panels of three, or a district court, but I think on

the Supreme Court, which sits en bane all the time, the idea of a utility

infielder does not fit in too well.

He would have to sit on lower courts, I think.

The CHAIRMAN. Mr. McCulloch.

Mr. McCuLLocH. I should like, if our colleague has no objection, to

make this observation. While I have not studied the problem that he

raises, by the exact words that he used, I think it amounts to mandatory retirement which raises, in my opinion serious constitutional

questions, with regard to article III, section 1 of our Constitution. I

am not asking you for your opinion. But that is my opinion.

I should like to know if you have the statistical data on how many

U.S. district judges have reached the retirement age and have not

retired?

Mr. REHNQUIST. As of the present time, there are 28 district judges,

according to our figures, who have reached the retirement age but have

not elected to retire.

Mr. RAILSBACK. Then the next question is how many judges who

have reached retirement age in the U.S. district courts have retired?

Mr. REHNQUIST. Mr. McCulloch, we have the figure that there are

now 106 senior judges of all varieties in the United States. That would
15

include other judges as well as district judges. Specifically, there are

38 senior circuit judges, 63 senior district judges, and five senior judges

of the Customs Court and Court of Claims.

The Administrative Office may very well have more detailed figures

than we have.

Mr. RAILSBACS. I would be glad if you would furnish those figures,

because that information will help me, at least, to arrive at some conclusions that I have not yet arrived at.

Mr. REHNQUIST. We will be happy to furnish them.

(The information requested may be found at p. 38.)

Mr. MCCULLOCH. Another question is do you have the record or can

you get the record of the number of retired judges in the trial courts,

U.S. district court, who have continued to carry a substantial workload and how many days per year they give to their work while in

retirement?

I would be very glad to have that. It is most important, I assure

you. You may have heard me use the name of Judge Lester Cecil.

He was born and reared in my county and, as I recall, was the first

U.S. district judge appointed by President Eisenhower after he became President.

He was named to the U.S. District Court for the Southern District

of Ohio, western division, after having been a common pleas judge for

12 or more years in the court of general jurisdiction in the State of

Ohio. He is an able, capable, wise judge

'

and in due course, he was

promoted, which met with my approval, to the sixth circuit court

of appeals. I think judges, if they have ability, and if they are industrious, ought to be promoted just like other people in and out of the

Government service. The U.S. Court of Appeals for the Sixth Circuit

comprises some of our largest cities, for example, there is Detroit,

Toledo, Grand Rapids, Cleveland, Youngstown and Akron, Columbus,

Cincinnati, and Dayton, and on down through Kentucky and

Tennessee.

When Judge Cecil reached retirement age, as I recall, he retired

as a judge of the U.S. court of appeals. But for at least 4 years thereafter, he carried a full caseload in the U.S. court of appeals.

If we had some judges who were devoted to duty and would participate after they have retired, let's say after age 601 it would help the

manpower shortages in this country and would give active working

judges the wisdom, about which our chairman so ably speaks.

And that, my colleagues, is the reason why I sought this particular

information. I hope you can put together for us some estimates, if not

an exact number, of workdays that these retired judges have served

both at the district level and at the court of appeals level.

Mr. REHNQUIST. We will work with the Administrative Office to see

that you get that, Mr. McCulloch.

(The information requested is set forth at pp. 30-34.)

Mr. MoCiaLocH. I understand from what you said to the chairman

you were not in a position to give an estimate of the cost of this

legislation?

Mr. REHNQUIST. That is right.

Mr. McCuLLocH. What would you guess the increased number of

salaries alone would cost for the very first year?
16

Mr. REHNQUIST. In order to even intelligently guess, you have to

hypothesize as to how many of the 17 judges to whom this option becomes available, would take it. As I say, our figures on the ones who

have become 65 show that only 25 percent of them have taken the opportunity to retire.

This leads me to think that less than 25 percent of those who become

60 would take the opportunity.

But it is such a wild kind of calculation that I just don't feel qualified to even guess it.

Mr. McCuLLocx. I won't press you further. But I have some statistics here that show that as many as 56 judges will be entitled to retirement as of July, 1970, if this legislation passed.

Is that correct?

Mr. REHNQUIST. No, Mr. McCulloch, I feel certain that that is not

correct.

Mr. RAILSRACK. Will the gentleman yield?

Mr. Moat-1,1,0cl'. Yes.

Mr. RAILSBACK. Let me just site these figures.

I think if they are incorrect, you can correct them. But I have here

that there are anproximately 341 Federal district judges and 97 Federal circuit judges. Of this total of 438 Federal judges there are some

56 who are now, or will be as of July 1, 1970, eligible for retirement,

nearly 14 percent.

In addition, if Senate bill 1508 is passed, there are 14 other judges

who would thus be eligible for retirement. Thus a total of 70 out of approximately 438 judges would be eligible for retirement now and

under Senate bill 1508, nearly 17 percent.

These are the figures that were given to me and I am not absolutely

certain they are accurate.

Mr. REHNQUIST. That sounds like a ball park accurate estimate

to me.

Mr. MCCULLOCH. I should like to thank the gentleman for his contribution. That gives me at least an idea of what this would cost.

Mr. REHNQUIST. Of course, the cost that would be added by this bill

would be only those of the 17 who would be made eligible by this

bill 

Mr. 

who 

MoCuLLocx. 

chose to retire. But the 56-

Seventeen?

Mr. REHNQUIST. Seventeen is our figure. The balance of the 70 is

eligible under existing law. Their cost is there 'whether this bill passes

or not.

The CHAIRMAN. Mr. MeClOry.

Mr. McCiAoRy. I don't think I have any questions, Mr. Chairman. I

assume that there is interest on the part of some of the judges in this,

and that we are responding in part to their desire

'

which is somehow

expressed, that some of these judges would take advantage of these

provisions.

We are not doing this just as a formal action, but rather as a practical means of allowing some of these judges to take advantage of these

provisions.

Do you have such a communication?

Mr. REHNQUIST. Certainly I agree it would be pointless to pass a bill

that would extend an option to people none of whom wanted it. So I

am certain that there are some who would seek to come under it.
17

I have not individually discussed with any of the ones eligible whether or not they would want it. I have spoken with Judge McGowan

and Judge Robb with the U.S. Court of Appeals for the District of

Columbia Circuit, and they have indicated to me that Judge Bazelon

has expressed an interest in retiring if the bill is passed.

There may very well be others located in other parts of the country

wham. I simply don't know about because I happen to be here.

The CHAIRMAN. Other than Judge Bazelon, whom you have mentioned, who expressed his wishes indirectly through others, are there

any other judges who have expressed a desire to have this bill passed?

Mr. REHNQUIST. I don't now know of any, Mr. Chairman.

Mr. EDWARDS of California. Will the chairman yield at this point?

The CHAIRMAN. Yes.

Mr. EDWARDS of California. How many judges now could retire

if they so chose under existing law?

I believe you have provided that figure.

Mr. REHNQUIST. Mr. Railsba,ck's figures were in the mid 50's as I

recall. That is not precise.

Mr. EDWARDS of California. These judges have elected not to retire at this point in their careers. Is that right?

Mr. REHNQMST. There we do have a somewhat more accurate or

more precise figure of judges who continue active past their retirement eligibility date.

Mr. EDWARDS of California. With these 17 judges who would become eligible under this new legislation, why would not the same proportion apply?

A substantial number of the 17 judges would undoubtedly elect not

to retire because we have others who have elected not to retire.

Mr. REHNQUIST. I think you are absolutely right.

Mr. RAILSBACK. Would the gentleman yield?

Mr. EDWARDS of California. Yes; I will.

Mr. RAILSBACK. It would seem to me that you raise a good point and

probably a larger percentage would not elect to retire because they

are younger.

That is what we are trying to do, permit younger judges that have

20 years continuous service to be eligible here. But I think the percentage would even be higher.

Mr. EDWARDS (of California). I would suggest that the percentage

might be higher. Do they lose their offices and staff as they retire?

Mr. REHNQ1TIST. I think it would depend somewhat on the particular

courthouse. But I think generally speaking if there are offices available, and I believe there are in most courthouses, they do not lose their

offices. I think undoubtedly they lose some part of their staff.

Again the Administrative Office would be in a better position to

answer that than I would.

The CHAIRMAN. Mr. Railsba,ck.

Mr. RAILSBACK. Thank you, Mr. Chairman.

I wonder what Mr. Rehnquist would feel, and I hope that you will

be very candid, and I am sure that you will, about an amendment that

would have the effect of requiring a judge who reaches age 70 retire

from active service and become a senior judge subject to being designated to continue his service, but permitting some degree of latitude?
18

Mr. REHNQUIST. I think as Congressman McCulloch suggests, this

raises more serious questions than the voluntary retirement proposition.

And I feel a little bit like an appraisal witness on the witness stand.

He was called to appraise one piece of property. If asked on crossexamination to appraise another parcel, he's going to say "I want to

go back to my office and take a look at it."

We did do some work in connection with the Department's recommendations on Senator Tydings' bills providing for a Commission to determine disability or misbehavior on the part of Federal judges.

And I think we concluded there that just letting the man continue to

have his salary is not enough under Article 3 of the Constitution, that

the independent judiciary means the right during good behavior to continue to exercise judicial functions.

Mr. RAILSBACK. Mr. Rehnquist, I think it would be very helpful to

us to have some information on that point. I have asked LRS for an

analysis and we have talked with them about the need for a constitutional amendment. We have discussed not actually requiring mandatory retirement as such but rather permitting the judge to become

senior status and then still, in effect, hold office.

But I think it would be very helpful because T for one think that this

is relevant to the general public matter and will probably have some

kind of an amendment. I think it would be very helpful if you could

give us your opinion about the problems involved, the constitutional

problems.

Mr. REHNQUIST. This would be regarding a proposal which would

make retirement at 70 mandatory for Federal judges?

Mr. RAILSBACK. I don't have my amendment here. I would like to

send it to you and see what your feeling is from a constitutional standpoint.

Mr. REHNQUIST. I would certainly be happy to render what ever

advice might be helpful.

Mr. RAILSBACK. Thank you.

The CHAIRMAN. Mr. Hutchinson.

Mr. HurcHINsoN. I have no questions, thank you.

Mr. ZELENKO. Mr. Rehnquist, it is true, is it not, that judicial retirement is different from other retirement programs in the Federal service

for two reasons.

One, as you have said, judicial retirement is at full pay and second,

the judges do not contribute to any retirement fund?

Mr. REHNQUIST. It is unique in the first respect. However, members

of the Armed Forces, like our Federal judges, do not contribute to their

retirement benefits.

Mr. ZT.,LFNKO. Do you see any problem or difficulty from any legal

standpoint if judges were asked to contribute to a retirement program?

Mr. REHNQUIST. Do you mean by statute?

Mr. ZELENKO. Yes.

Mr. REHNQUIST. No; I think that Congress, subject to perhaps an

obligation to recognize vested interests of existing judges, and I don't

know just to what extent that obligation would extend, could, as to all

future appointees, say, "From now on, you boys are going to contribute

to the retirement fund just the way others in the Federal service do."
19

Mr. ZELENKO. As I understand your testimony, Mr. Rehnquist, the

Department of Justice supports the principle of earlier retirement for

Federal judges, in part, because it will enable some additional sitting

judges now to go on senior status, and make way for new appointees.

The result would be to provide the Federal judiciary somewhat of

an increase in the manpower available to deal with the backlog and

caseload.

Mr. REHNQUIST. This is our primary reason, Mr. Zelenko, for supporting it. These senior judges will be able to function, I think, in a

way that mere additional judges with a particular station could not.

They could be troubleshooters who could be sent to wherever congestion existed.

Mr. ZELENKO. You have conceded that it is impossible really to predict how many judges who would be eligible actually would opt for

such early retirement. Thus, if our goal is to improve the judicial

manpower situation, would it not be more efficient just to increase the

number of permanent judgeships?

Mr. REHNQUIST. To an extent, I agree except that I don't think that

either of the solutions by itself would be as good as both together.

For instance, in an area that has a backlog that would require half

of a judge to come in and clear up, then it is not really warranted to

create a new judgeship, but if one of these senior judges could come to

that area 6 . months a year, he could take care of that backlog and still

be available somewhere else for a part of the year.

Mr. ZELENKO. Thank you, Mr. Chairman.

The CHAIRMAN. How many judges are on the retirement list now?

Mr. REHNQUIST. 106, Mr. Chairman.

The CHAIRMAN. Do the same limitations apply to sitting judges as

apply to retired judges?

Mr. REHNQUIST. I think a judge so long as he is retired is forbidden

by a provision of the Judicial Code from practicing law.

The CHAIRMAN. Can he go on a lecture tour and receive compensation for it?

Mr. REHNQUIST. I don't think there is any provision now in law

that prevents a sitting judge from going on a lecture tour and receiving compensation for it.

The CHAIRMAN. What about a retired judge who has no regular

assignments, to what degree can he earn money?

Mr. REHNQUIST. In view of the fact that a senior judge continues to

be a judge, I think he would be subject to the same statutory restrictions as regular active judges

'

and no others.

The CHAIRMAN. Can they become presidents of universities?

Mr. REHNQUIST. This would depend on the particular restrictions in

effect.

The CHAIRMAN. With compensation?

Mr. REHNQUIST. I would answer this question in the same manner.

The CHAIRMAN. In other words, he can do anything but practice

law?
20

Mr. REHNQUIST. That is my belief, insofar as statutory prohibitions

are concerned.

The CHAIRMAN. Could he become a president of a bank?

Mr. REHNQUIST. I think he could.

The CHAIRMAN. President of an insurance company?

In fact, could he manage a business or go into business? You don't

mean to tell me that a retired judge can do those things, do you?

Mr. REHNQUIST. I am not going to back away. I think he can.

The CHAIRMAN. Are you suggesting that a Federal judge could retire under the Senate bill (S. 1508) at 55 and become a bank president

and earn a hundred thousand dollars a year and still get his salary as

a judge?

Mr. REHNQUIST. I think that is true. Under existing law, he can

retire at 65 after 15 years and become a bank president and still get his

salary.

The CHAIRMAN. Are there •any bank presidents that are retired

judges?

Mr. REHNQUIST. I know of no retired Federal judge, though I must

admit, I have not made a study of the subject, who has gone into some

full-time occupation other than the judgeship.

The CHAIRMAN. It would be interesting to check and see what these

retired judges have been doing. Have you any kind of a record of it?

Does anybody keep any such record? Does the Director of the Administrative Office of the U.S. Courts keep such a record? You do have

it, sir Mr. Foley?

Mr. FOLEY. Yes, sir.

The CHAIRMAN. Will you testify as to it when we interrogate you?

Mr. FOLEY. Yes, sir.

The CHAIRMAN. Are there any other questions?

Mr. Poff.

Mr. POFF. I apologize for being late, Mr. Chairman. If the question

has been already asked that I am about to ask, I hope they will say so.

I am 16oking at the law to which the two sections of the bill is addressed. I think it is important to emphasize at this point that section

371 (b) uses the verb "retire" while section 373 of the present law deals

with judges of territorial courts who "resign." There is a difference

between retirement and resignation. In the one case we are giving the

judge of the territorial court the power to resign after serving 20 years

at any age, and the other is we are giving to district judges and justices

of the Supreme Court the power to retire at any age after serving 20

years service.

They are not treated the same. Is there some special reason why?

Mr. REHNQUIST. I think this is just an effort, Congressman Poff, to

keep the terms the way they are now in the statutes. Territorial judges

do not have the right of retirement. They have the right of resignation only, with certain salary compensations. The purpose of the provision in the bill concerning territorial judges is to make like adjustments in the provisions for territorial judges as are made in the case

of Federal district judges under the other provision of the bill.

Mr. POFF. Was there any reason originally why it was felt that

judges of territorial courts should be treated differently so far as the

right to retire is concerned?
21

Mr. REHNQUIST. I am certainly not a historian on that subject. Mr.

Duffner suggests to me a guess that might not be a bad one, that at one

time they were appointed for terms and that perhaps that might have

a bearing on it.

Mr. Pori'. Thank you.

Mr. Moor'Er. Mr. Chairman, may I ask just one question?

The CHAIRMAN. Yes.

Mr. MOONEY. Under the distinction between territorial and district

and circuit judges, is it not true that a territorial judge can resign with

full pay and practice law and that the distinction is between resigned

and retired?

Mr. REHNQUIST. I think a resigned judge generally, and I have no

reason to think this is not true of territorial judges, can practice law.

This is the difference between resignation and retirement.

Mr. POFF. Will the gentleman yield?

I would suggest one other obvious distinction. I think when the

judge retires, he gets the benefit of whatever pay increases may be

made subsequent to his retirement, whereas, if he resigns, he must separate at the level at which he resigned.

Mr. REHNQUIST. That is certainly my understanding.

The CHAIRMAN. Thank you very much.

We appreciate your appearance.

Our next witness is the Acting Director, William E. Foley, Administrative Office of the U.S. Courts. We are very glad to have you here.

We know you have done an excellent job as Deputy Director.

We welcome you before the committee today, and you may proceed

as you wish.

STATEMENT OF WILLIAM E. FOLEY, ACTING DIRECTOR,

ADMINISTRATIVE OFFICE OF THE U.S. COURTS

Mr. FOLEY. Thank you, sir.

I would like to submit my statement with the attachments for the

record.

The CHAIRMAN. Without objection it is so ordered.

(The document referred to follows:)

STATEMENT OF WILLIAM E. FOLEY, ACTING DIRECTOR OF THE ADMINISTRATIVE

OFFICE OF THE U.S. COURTS

Mr. Chairman, my name is William E. Foley. I am Acting Director of the

Administrative Office of the U.S. Courts. I appear before your committee today

to present the views of the Judicial Conference of the United States on S. 1508,

a bill to improve judicial machinery by amending provisions of law relating to

the retirement of Justices and judges of the United States—insofar as it relates

to judges of the United States.

RETIREMENT OF JUDGES

Paragraph (a) of S. 1508 would amend 28 U.S.C. 371(b) to permit a Justice

or judge of the United States to retire "at any age" after having served "at least

20 years continuously or otherwise." The Judicial Conference of the United

States, at its recent meeting on October 31, and November 1, 1969, expressed

approval of the concept of permitting retirement of judges after 20 years of

service as provided in paragraph (a) of S. 1508, but was of the further view

that a judge should be 60 years of age before he would be permitted to avail
22

himself of this new retirement provision. The Judicial Conference therefore

recommends that the bill be amended to permit retirement at age 60, after

20 years of service.

With this amendment the bill would apply only in the case of a judge who was

appointed to the Federal bench before his 50th birthday (since he would otherwise qualify under the provision permitting retirement at age 65 after 15 years

of service). Nominees to Federal judgeship positions are usually chosen from

the ranks of lawyers or legal scholars who have reached middle age. A survey of

judgeship appointments made by the Administrative Office of the U.S. Courts

indicates that the average age of all judges appointed in the 10-year period from

1960 to 1970 was approximately 511/2 years. Should S. 1508 be enacted, as recommended by the Judicial Conference, only 10 judges would be eligible as

of July 1, 1970 to retire under this new provision. Past experience would indicate

that some of those eligible for retirement at age 60 would not in fact retire since

it is not obligatory. There are four other judges who will have 20 years of service

as of July 1, 1970, but will not be 60 years of age on that date.

Mr. Chairman, as you know, retirement for Federal judges does not have the

same implication as does retirement from other governmental positions. A retired Federal judge may upon designation continue to carry a full or limited

caseload and may be available to undertake assignments in other courts provided

he is designated to do so (28 U.S.C. 294). In this regard some great jurists have

rendered invaluable service in their retirement. In addition, the President may

appoint another judge to fill the vacant position of the "retired" judge. This

tends to give more flexibility to the system, particularly in the case of a judge

who has become partially disabled after long service on the bench and, to improve

the operation of his court, would like to retire at age 60 but continue to perform

judicial work.

Retirement at age 60, after long years of service, has become common. The

civil service retirement laws were recently amended by the act of September 11,

1967, 81 Stat. 214, 5 U.S.C. 8336(b), to allow an employee separated from the

service after becoming 60 years of age and completing 20 years of service to

retire and receive an annuity. Corporations are likewise extending (and sometimes requiring) retirement to their executives. It is the view of the Judicial

Conference that this concept should be applied to the judiciary.

RETIREMENT OF TERRITORIAL JUDGES

Paragraph (b) of S. 1508, as it passed the Senate, would allow a judge of a

territorial court (Canal Zone, Guam, and the Virgin Islands) to retire at any

age after 20 years of service, continuous or otherwise. Pursuant to existing law,

28 U.S.C. 373, a judge of a territorial court may now retire at age 70 with 10

years service or at age 65 with 15 years of service. Judges in these courts do not

have life tenure. They are appointed for terms of 8 years. If such a judge is

removed from office by the President because of mental or physical disability, or

fails of reappointment, he will receive an annuity (provided he has served a

minimum of 10 years) in the proportion that the number of his years of service

bears to 16 times his salary. However, this annuity does not commence until age

65. The Judicial Conference of the United States has recommended that judges

of territorial courts be made eligible to retire at age 60, after 20 years of service,

in the same manner as judges of other courts, as would be provided by paragraph (a) of S. 1508.

If there are any questions, I will be pleased to try to answer them. Thank you,

Mr. Chairman.

Mr. FOLEY. Mr. Chairman, and members of the committee, as you

have indicated in your opening statement, Mr. Chairman, I appear

here in behalf of the Judicial Conference of the United States in support of this pending legislation but with the proviso on the part of the

Judicial Conference, that an age limit of 60 years be inserted in the

statute—in other words, that a judge should not be able to retire after

20 years of service unless he has reached the age of 60.
23

This proposal of the Conference would bring this legislation into

line with existing legislation, whereby a judge may retire at age 70,

with 10 years of service, or at the age of 65 with 15 years of service.

We have in the Administrative Office made a calculation of the average age of judges at the time of the appointment over the last 10 years

and the 'average acre range is approximately 511/2 years.

The likelihood, therefore, that this legislation will at 'present at

least reach a great many judges is rather remote. In addition, if the

amendment proposed by the Judicial 'Conference were to be adopted

there would be 10 judges who would, as of July 1 of this year, become

eligible for retirement. That is, they would have reached the age of 60

and would have had 20 years of service.

The 'CHAIRMAN. In the first instance, that is, retirement after 20

years of service with no minimum age, there would be 17 eligibles and

in the second instance 20 years of service and a minimum age of 60

years, there would be 10 eligibles.

Mr. FOLEY. I don't like to differ with the previous witness, but we

would have 14 and 10, Mr. Chairman because there are three judges

on the Department of Justice list who between now and July 1 will

become eligible for retirement under existing statutes, and therefore

we feel that the 14 is a more accurate number than 17.

(The documents referred to follow:)

Average ages of judges upon appointment

Average age of all judges appointedDuring 5-year period, 1960-64 51. 7

During 5-year period, 1965-69 51. 1

During 10-year period, 1960-69 51.4

Average age of all circuit judges appointedDuring 5-year period, 1960-64 53. 1

During 5-year period, 1965-69 51. 5

During 10-year period, 1960-69 52. 1

Average age of all district judges appointedDuring 5-year period, 1960-64 51. 5

During 5-year period, 1965-69 51. 0

During 10-year period, 1900-69 51.3

JUDGES CURRENTLY ELIGIBLE TO RETIRE BASED ON ATTAINMENTS OF AGE 70 AND 10 YEARS' SERVICE

Judge and circuit or district

Date of

birth

Date eligible

to retire

Leonard P. Moore, 2d circuit July 2, 1898 July 2,1968 Simon E. Sobeloff, 4th circuit Dec. 3, 1894 July 20,1966 Herbert S. Boreman, 4th circuit Sept. 21, 1897 Sept. 21,1967 Paul C. Weick, 6th circuit Aug. 25, 1899 Aug. 25,1969 Latham Castle, 7th circuit Feb. 27, 1900 1 Feb. 27,1970 Julius J. Hoffman, Illinois, north July 7, 1895 July 7,1965 Francis J. W. Ford, Massachusetts Dec. 23, 1882 Dec. 23,1952 Robert Van Pelt, Nebraska Sept. 9, 1897 2Sept. 9,1967 Reynier J. Wortendyke, Jr., New Jersey Mar. 22, 1895 June 28,1965 John R. Bartels, New York, east Nov. 8, 1897 Aug. 13,1969 John F. X. McGohey, New York, south Jan. 7, 1894 Jan. 7,1964 Girard E. Kalbfleisch, Ohio, north Aug. 3, 1899 Oct. 16,1969 James C. Connell, Ohio, north Sept. 20, 1897 Sept. 20,1967 Axel J. Beck, South Dakota May 6, 1894 Apr. 1, 1968 Ewing T. Kerr, Wyoming Jan. 21, 1900 Jan. 21,1970

1 To retire Feb. 28, 1970.

2 To retire upon appointment and qualification of a successor.
24

JUDGES CURRENTLY ELIGIBLE TO RETIRE, BASED ON ATTAINMENTS OF AGE 65 AND 15 YEARS' SERVICE

Judge and circuit or district

Date eligible

Date of birth to retire

J. Joseph Smith, 20 circuit Jan. 25, 1904 Jan. 25, 1969

William Henry Hastie, 3d circuit Nov. 17, 1904 Nov. 17, 1969

Albert V. Bryan, 4th circuit July 23, 1899 July 23, 1964

Bryan Simpson, 5th circuit May 30, 1903 May 30, 1968

Joe McDonald Ingraham, 5th circuit July 5, 1903 Aug. 30, 1969

Luther M. Swygert, 7th circuit Feb. 7, 1905 Feb. 7, 1970

Martin D. Van Oosterhout, 8th circuit Oct. 10, 1900 Sept. 9, 1969

James M. Carter, 9th circuit Mar. 11, 1904 Mar. 11, 1969

Alfred P. Murrah, 10th circuit Oct. 27, 1904 Oct. 27, 1969

Jean S. Breitenstein, 10th circuit July 18, 1900 June 3, 1969

George B. Harris, California, Northern Aug. 16, 1901 Aug. 16, 1966

Edward M. Curran, District of Columbia May 10, 1903 May 10, 1968

William A. Bootle, Georgia, Middle Aug. 19, 1902 June 2, 1969

Fred M. Taylor, Idaho Feb. 25, 1901 July 26, 1969

J. Sam Perry, Illinois, Northern Nov. 39, 1896 Aug. 28, 1966

Mac Swinford, Kentucky, Eastern Dec. 23, 1899 Dec. 23, 1964

Herbert W. Christenberry, Louisiana, Eastern Dan. 11, 1897 Dec. 30, 1962

Roszel C. Thomsen, Maryland Aug. 17, 1900 May 17, 1969

Ralph M. Freeman, Michigan, Eastern May 5, 1902 June 29, 1969

Theodore Levin, Michigan, Eastern Feb. 18, 1897 Feb. 18, 1962

Harold P. Burke, New York, western June 6, 1895 June 6, 1960

Sidney Sugarman, New York, southern Spet. 4, 1904 Sept. 4, 1969

Sylvester J. Ryan, New York, southern Sept. 10, 1896 Nov. 10, 1962

Edward Weinfeld, New York, southern May 14, 1901 May 14, 1966

Stephen S. Chandler, Oklahoma, western Sept. 13. 1899 Sept. 13, 1964

John W. Lord, Jr., Pennsylvania, eastern Dec. 19, 1901 May 28, 1969

John L. Miller, Pennsylvania, western Mar. 24, 1901 June 18, 1969

Edward William Day, Rhode Island May 24, 1901 Nov. 30, 1968

Robert L. Taylor, Tennessee, eastern Dec. 20, 1899 Dec. 20,1964

Allen B. Hannay, Texas, southern Feb. 14, 1892 Aug. 18, 1957

Willis W. Ritter, Utah Jan. 24, 1899 Oct. 25, 1964

William J. Lindberg, Washington, western Dec. 17, 1904 Dec. 17, 1969

George H. Boldt, Washington, western Dec. 28, 1903 Dec. 28, 1968

Robert E. Tehan, Wisconsin, eastern Jan. 7, 1905 Jan. 7,1970

Paul P. Rao, U.S. Customs Court June 15, 1899 June 15, 1964

JUDGES CURRENTLY ELIGIBLE TO RETIRE UNDER ANY CRITERIA (AS OF FEB. 27, 1970)

Judge and circuit or district

Date eligible

Date of birth to retire

Leonard P. Moore, 2d circuit July 2, 1898 July 2,1968

J. Joseph Smith, 2d circuit Jan. 25,1904 Jan. 25,1969

William Henry Hustle, 3d circuit Nov. 17,1904 Nov. 17, 1969

Simon E. Sobeloff, 4th circuit Dec. 3.1894 July 20, 1966

Herbert S. Boreman, 4th circuit Sept. 21,1897 Sept. 21, 1967

Albert V. Bryan, 4th circuit July 23,1899 July 23,1964

Bryan Simpson, 5th circuit May 30, 1903 May 30,1968

Joe McDonald I ngrham, 5th circuit July 5,1903 Aug. 30,1969

Paul C. Weick, 6th circuit Aug. 25,1899 Aug. 25, 1969

Latham Castle, 7th circuit Feb. 27, 1900 Feb. 27,1970

Luther m . Swygert, 7th circuit Feb. 2,1903 Feb. 7, 1970

Martin D. Van Oosterhout, 8th circuit Oct. 10,1900 Sept. 9,1969

James M. Carter, 9th circuit Mar. 11, 1904 Mar. 11, 1969

Alfred P. Murrah, 10th circuit Oct. 27, 1904 Oct. 27,1969

Jean S. Breitenstein, 10th circuit July 18, 1900 June 3.1969

George B. Harris, California, northern July 16, 1901 Aug. 16, 1966

Edward M. Curran, District of Columbia May 10, 1903 May 10, 1968

William A. Bootle, Georgia, middle Aug. 19, 1902 June 2,1969

Fred M. Taylor, Idaho Feb. 25,1901 July 26,1969

J. Sam Perry, Illinois, northern Nov. 30,1896 Aug. 28,1966

Julius J. Hoffman, Illinois, northern July 7,1993 July 7, 1965

Mac Swinford, Kentucky, eastern Dec. 23, 1899 Dec. 23,1964

Herbert W. Christenberry, Louisiana, eastern Dec. 11, 1897 Dec. 30, 1962

Roszel C. Thomsen, Maryland Aug. 17, 1900 May 17, 1969

Francis J. W. Ford Dec. 23, 1882 Dec. 23, 1952

Ralph M. Freeman, Michigan, eastern May 5, 1902 June 29, 1969

Theodore Levin, Michigan, eastern Feb. 18, 1897 Feb. 18, 1962

Robert Van Pelt, Nebraska Sept. 9, 1897 ISept. 9, 1967

Reynier J. Wortendyke, Jr., New Jersey Mar. 22, 1895 June 28, 1965

John R. Bartels, New York, eastern Nov. 8, 1897 Aug. 13, 1969

Harold P. Burke, New York, western June 6, 1895 June 6, 1960

Sidney Sugarman, New York, southern Sept. 4, 1904 Sept. 4, 1969

Sylvester J. Ryan, New York, southern Sept. 10, 1896 Nov. 10, 1962

John F. X. McGohey Jan. 7, 1894 Jan. 7, 1964

Edward Weinfeld, New York, southern May 14, 1901 May 14, 1966

Girard E. Kalbfleisch, Ohio, northern July 3,1899 Oct. 16, 1969
25

JUDGES CURRENTLY ELIGIBLE TO RETIRE UNDER ANY CRITERIA (AS OF FEB. 27, 1970)

Judge and circuit or district Date of birth

Date eligible

to retire

James C. Connell, Ohio, northern Sept. 20,1897 Sept. 20,1967

Stephen S. Chandler, Oklahoma, western Sept. 13, 1899 Sept. 13, 1964

John W. Lord, Jr., Pennsylvania, eastern Dec. 18, 1901 May 28,1969

John L. Miller, Pennsylvania, western Mar. 24,1901 June 18, 1969

Edward William Day, Rhode Island May 24, 1901 Nov. 30,1968

Axel J. Beck, South Dakota May 6,1984 Apr. 1, 1968

Robert L. Taylor, Tennessee, eastern Dec. 20, 1899 Dec. 20,1964

Allen B. Hannay, Texas, southern Feb. 14,1892 Aug. 18,1957

Willis W. Ritter, Utah Jan. 24,1899 Oct. 25,1964

William J. Lindberg, Washington, western Dec. 17, 1904 Dec. 17,1969

George H. Boldt, Washington, western Dec. 28,1903 Dec. 28,1968

Robert E. Tehan, Wisconsin, eastern Jan. 7, 1905 Jan. 7, 1970

Ewing T. Kerr, Wyoming Jan. 21,1900 Jan. 21,1970

Paul P. Rao, U.S. Customs Court June 15, 1899 June 15, 1964

1 To retire upon appointment and qualification of a successor.

PRESENT ACTIVE JUDGES WHO WILL HAVE SERVED 20 YEARS OR MORE AND WHO WILL REACH AGE 60 ON OR BEFORE

JULY 1, 1970

Name and court Date of birth Oath

Bazelon, David L., District of Columbia Appellale Sept. 3, 1909 Nov. 1, 1949

Tamm, Edward A., District of Columbia Appellate Apr. 21,1906 June 28,1948

Worley, Eugene, Custom and Patent Appeals Oct. 10, 1908 Apr. 6,1950

Kaufman, Irving R., 2d circuit Jun. 24, 1910 Nov. 1, 1949

Hill, Delmas C., 10th circuit Oct. 9,1906 Oct. 27,1949

Lynne, Seyoourn hi., Alabama, Northern Jul. 25,1907 Jan. 9, 1946

Wyzanski, Charles E., Massachusetts May 27,1906 Jan. 26, 1942

Harper, Roy W., Missouri, Eastern Jul 26, 1905 Aug. 11, 1947

Solomon, Gus J., Oregon Aug. 29, 1906 Nov. 14, 1943

Connally, Ben C., Texas, Southern Dec. 28,1909 Nov. 14, 1949

PRESENT ACTIVE JUDGES WHO WILL HAVE SERVED 20 YEARS OR MORE AND WHO WILL NOT HAVE REACHED AGE

60 AS OF JULY 1, 1970

Name and court Date of birth Oath

Wright, J. Skelly, District of Columbia, Appellate Jan. 14, 1911 Oct. 26, 1949

Ford, Morgan, Customs Sept. 8,1911 Jai,/ 28, 1949

Steckier, William E., Indiana, Southern Oct. 18, 1913 Apr. i5, 1950

Foley, James T., New York, Northern July 9, 1910 Fes. 16, 1949

JUDGES WHO WILL REACH AGE 65 BETWEEN FEB. 27, 1970, AND JULY 1, 1970, AND WILL HAVE 15 OR MORE YEARS

OF SERVICE

Judge and circuit or district

Date eligible

Date of birth to retire

William J. Campbell, Illinois, northern Mar. 19, 1905 'Mar. 19, 1970

Rabe Ferguson Marsh, Pennsylvania, western Apr. 26, 1905 Apr. 26, 1970

A. Sherman Christensen, Utah June 9,1905 June 9, 1970

I Retirement papers submitted effective Mar. 19, 1970.

RESIGNED JUDGES CURRENTLY RECEIVING SALARY PURSUANT TO 28 U.S.C. 373

Name and district

Dale of

[OD resignation

Paul D. Shriver, Guam Sept. 28,1950 1 Oct. 16, 1968

Sept. 22,1961 2 Oct. 1, 1969

Herman E. Moore, Virgin Islands Aug. 10, 1939 a Nov. 15, 1957

Walter A. Gordon, Virgin Islands Sept. 24,1958 a Oct. 1, 1968

1 Term expired.

2 Resigned.
26

Mr. FOLEY. At the present time, in connection with a question that

was asked of the previous witness, and as I believe Congressman Railsback indicated, there are 56 judges who now or by July 1 will be eligible for retirement under existing statutes.

(A memorandum setting forth that information follows:)

RETIREMENT OF JUDGES

There follows a table showing the numbers of judges eligible to retire between

now and July 1, 1970, under existing law, plus those who would become eligible

should 28 U.S.C. 371 be amended either to provide for retirement at (a) age 60

with 20 years of service or (b) 20 years of service with no age qualification.

Presently eligible 50

Becoming eligible through operation of existing law:

15 years service and 65 years of age 3

10 years service and 70 years of age 3

Total under existing provisions of 28 U.S.C. 371 56 Eligible after 20 years service and attaining age 60 10

Eligible after 20 years service with no age qualification 4

Attached are lists of the judges, by name, who fall into the above categories.

Fifteen who will reach the age of 70 and will be eligible and 35 who

will reach the age of 65 and be eligible. As of January 31, we had

110 senior judges. And I think this is a fairly interesting figure in that

10 years ago, we had approximately the 77 senior judges. That had been

a relatively stable figure. The figure in recent years is now going up. It

was 110 at a month ago and there are already two additional letters

to the President that have come in since that time from judges.

The 'CHAIRMAN. To what do you attribute that increase?

Mr. FOLEY. I think, Mr. Chairman, there is a greater understanding

on the part of judges that when they take senior status, they can still

remain in harness, so to speak; they don't have to hang up their judicial robe and Start working.

I think there is a great awareness of the advantages of this retirement pro-vision that judges now have.

At the same time, there Is an awareness that, by taking senior status

and continuing to work, their court in effect achieves an additional

judge.

In many of the courts which are hard pressed, this has a very salutary effect.

Mr. McCuLLocir. Will the chairman yield?

The 'CHAIRMAN. Yes.

Mr. McCulLocH. Yes.

That was the case in the fifth circuit, where Judge Lester Cecil retired and carried a full caseload for at least 4 years thereafter.

Mr. FOLEY. Yes, sir • in the sixth circuit.

This in essence is the substance of the statement I have, Mr. Chairman. I will be glad to answer any questions.

. The 'CHAIRMAN. You will remember I interrogated the previous

witness as to what these retired judges would do. I asked certain

questions as to whether they became bank presidents or head of companies and so forth.

Does your office keep a record of what these retired judges do?

•
27

Mr. FOLEY. We receive a report once a year on each senior judge,

each retired judge.

We have no indication that any of them has ever gone into any

venture other than to remain on the bench as long as his health would

permit it with this exception, and a very good exception, several

judges have become much more active in judicial administration.

As you know, Mr. Chairman, Judge Mans of the third circuit has

been head of the program for the rules of practice and procedure in

the Federal courts. Judge Biggs of the same circuit has been extremely

active in the conference committees of the Judicial Conference.

The CHAIRMAN. Also Judge Clark.

Mr. FOLEY. Judge Clark for many years was. Judges throughout

the country have become very active in Judicial Conference committee

work.

The CHAIRMAN. Have any of the retired judges become teachers or

professors of law?

Mr. FOLEY. Some have on a part-time basis while active judges and

have continued on a part-time basis after they were senior judges.

They might, for example, give one course in law school or give an

occasional lecture. But we have no record of any full-time employment.

The CHAIRMAN. We have to consider these possibilities under a

statute. Would it be your opinion as it was the opinion of the previous

witness, that a retired judge can become a bank president?

Mr. FOLEY. There is one additional sanction that possibly the previous witness was not aware of and that is a Judicial Conference regulation prohibiting any judge, retired or otherwise, from being an

officer or executive of any type in any business, corporation, or bank.

The CHAIRMAN. That is the answer. But that is a regulation of the

Judicial Conference?

Mr. FOLEY. Yes, sir. It is not a law.

The CHAIRMAN. Mr. Railsback.

Mr. RAILSBACK. Thank you, Mr. Chairman.

I wonder if you have a breakdown of the various Federal judges

over the age of 70.

Mr. FOLEY. Those in senior status?

Mr. RAILSBACK. I would be interested in how many are in the eighties, not any names or anything, but just a general breakdown.

Mr. FOLEY. We could certainly furnish you that.

Mr. RAILSBACK. Yes.

I think we want to know the ages and number of those over 70.,

retired and not retired.

Mr. FOLEY. Those I have already submitted to the committee, those

who are still active and eligible to retire. That is, who have reached

the age of 70 and are eligible to retire.

Mr. RAILSBACK. Then you will also supply us with the number of

senior judges.

Mr. FOLEY. Yes, and their ages.

Mr. RAILSBACK. Are you going to give us those who have been designated to remain active or all of them?

Mr. FOLEY. We can ive you all of them. I think it would be easier

if we did that.
28

(The information referred to follows:)

SENIOR JUDGES 70 YEARS OF AGE OR MORE AS OF JULY 1, 1970

Judge and court Date of birth

Prettyman, E. Barrett, District of Columbia appeals Aug. 23, 1891 Miller, Wilbur K., District of Columbia appeals, Oct. 9, 1892 Bastian, Walter M., District of Columbia appeals Nov. 16, 1891 Fahy, Charles, District of Columbia appeals Aug. 27. 1892 Danaher, John A., District of Columbia appeals Jan. 9, 1899 Woodbury, Peter, 1st circuit Oct. 24, 1899

Swan, Thomas W., 2d circuit Dec. 20,1877 Medina, Harold R., 2d circuit Feb. 16, 1888 Mans, Albert Branson, 3d circuit Dec. 19, 1893

Forman, Phillip, 3d circuit Nov. 30, 1885 Biggs, John, Jr., 3d circuit Oct. 6, 1895

Ganey, J. Cullen, 3d circuit Apr. 22, 1899 McLaughlin, Gerald, 3d circuit May 11, 1893 Kalodner, Harry E., 3d circuit Mar. 28, 1896 Hutcheson, Joseph C., Jr., 5th circuit Oct. 19, 1879 Rives, Richard T., 5th circuit Jan. 15, 1895

Jones, Warren L., 5th circuit July 2, 1895 Tuttle, Elbert Parr, 5th circuit July 17,1897 McAllister, Thomas F., 6th circuit Mar. 4, 1896 Cecil, Lester L., 6th circuit Nov. 21,1893 O'Sullivan, Clifford, 6th circuit Dec. 8,1897 Major, J. Earl, 7th circuit Jan. 5, 1887 Duffy, F. Ryan, 7th circuit June 23, 1888 Knoch, Win G., 7th circuit May 24,1895 Hastings, John S., 7th circuit June 30, 1898 Castle, Latham, 7th circuit Feb. 27, 1900 Wood rough, Joseph W., 8th circuit Aug. 29, 1873 Johnsen, Harvey M., 8th circuit July 16, 1895 Vogel, Charles J., 8th circuit Sept. 20, 1898 Bone, Homer T., 9th circuit Jan. 25, 1883 Hamlin, Oliver D., Jr., 9th circuit Nov. 30,1892

Jertberg, Gilbert H., 9th circuit Feb. 1, 1897 Phillips, One L., 10th circuit Nov. 20,1885

Huxman, Walter A., 10th circuit Feb. 16, 1887 Pickett, John C., 10th circuit Sept. 3, 1896

Hodge, Walter H., Alaska Aug. 29, 1896 Miller, John E., Arkansas, western May 15, 1888

Hall, Peirson M., California, central July 31,1894

Weinberger, Jacob, California, southern Jan. 4, 1882

Yankwich, Leon R., California, southern Sept. 25, 1888

Westover, Harry C., California, southern May 19, 1894

Byrne, William M., California, southern July 10, 1896 McLaughlin, Charles F., District of Columdia June 17, 1887

Pine, David A., District of Columbia Sept. 22, 1891

Youngdahl, Luther W., District of Columbia May 29, 1896 McGuire, Matthew- F., District of Columbia May 30, 1898

Keech, Richmond B., District of Columbia Nov. 28, 1896

McGarraghy, Joseph Charles, District of Columbia Nov. 6, 1897

Matthews, Burnita Shelton, District of Columbia Dec. 28, 1894

Choate, Emett C., Florida, southern May 21, 1891

Whitehurst, George W., Florida, northern, middle, and southern May 18, 1891

Sloan, William Boyd, Georgia, northern July 9, 1895

Hooper, Frank A., Georgia, northern Apr. 21, 1895

Scarlett, Frank M., Georgia, southern June 9, 1891

Briggle, Charles G., Illinois, southern Jan. 27, 1883

Shelbourne, Roy M., Kentucky, western Nov. 12,1890

Lederle, Arthur F., Michigan, eastern Nov. 25, 1887

Thornton, Thomas P., Michigan, eastern Mar. 8, 1889

Donovan, Dennis F., Minnesota Apr. 9, 1889

Nordbye, Gunnar H., Minnesota Feb. 4, 1888

Cox, Allan, Mississippi, northern Feb. 16, 1887

Reeves, Albert L., Missouri, western Dec. 21, 1873

Duncan, Richard M., Missouri, eastern and western Nov. 10, 1889

Jameson, William J., Montana Aug. 8, 1898

Delehant, John W., Nebraska Sept. 3, 1890

Foley, Roger T., Nevada May 25, 1886

Hartshorne, Richard, New Jersey Feb. 29, 1888

Dimock, Edward Jordan, New York, southern Jan. 4, 1890

Cashin, John M., New York, southern. Aug. 31, 1892

Levet, Richard H., New York, southern Jan. 24, 1894

Abruzzo, Matthew T., New York, eastern Apr. 30, 1888

Rayfiel, Leo F., New York, eastern Mar. 22, 1888

Bruchhausen, Walter, New York, eastern May 29, 1892

Hayes, Johnson J., North Carolina, middle Jan. 23, 1886

Warlick, Wilson, North Carolina, western Mar. 8, 1892

Wilkin, Robert N., Ohio, northern May 4, 1885

Kloeb, Frank Le Blond, Ohio, northern June 16, 1890
29

SENIOR JUDGES 70 YEARS OF AGE OR MORE AS OF JULY 1, 1970-Continued

Judge and court Date of birth

Underwood, Melt G., Ohio, southern Jan. 30, 1892

Welsh, George A., Pennsylvania, eastern Aug. 9, 1878

Kirkpatrick, William H., Pennsylvania, eastern Oct. 2,1885

Clary, Thomas J., Pennsylvania, eastern Aug. 31, 1899

Follmer, Frederick V., Pennsylvania, middle Dec. 13, 1885

Davidson, T. Whitfield, Texas, northern Sept. 23, 1876

Thomason, Robert Ewing, Texas, western May 30, 1879

Barksdale, Alfred D., Virginia, western July 17, 1892

Bowen, John C., Washington, western May 12, 1888

Grubb, Kenneth Philip, Wisconsin, eastern Sept. 14,1895

Madden, Joseph W., Court of Claims Jan 17,1890

Jones, Marvin, Court of Claims Feb. 26, 1886

Lawrence, Charles D., Customs Court Aug. 5,1878

Wilson, David John, Customs Court Oct. 27, 1887

Donlon, Mary H., Customs Court Aug. 25, 1893

Total, 92.

ACTIVE JUDGES 70 YEARS OF AGE OR MORE AS OF JULY 1, 1970

Judge and court Date of birth

Moore, Leonard P., 2d circuit July 2,1898

Sobeloff, Simon E., 4th circuit Dec. 3, 1894

Boreman, Herbert S., 4th circuit Sept. 21, 1897

Bryan, Albert V., 4th circuit July 23, 1899

Weick, Paul C., 6th circuit Aug. 25, 1899

Barnes, Stanley N., 9th circuit May 1,1900

Wollenberg, Albert C., California, northern June 13, 1900

Perry, J. Sam, Illinois, northern Nov. 30, 1896

Hoffman, Julius J., Illinois, northern July 7,1895

Swinford, Mac, Kentucky, eastern and western Dec. 23, 1899

Christianberry, Herbert W., Louisiana, eastern Dec. 11,1897

Ford, Francis, J. W , Massachusetts Dec. 23,1882

Levin, Theodore, Michigan, eastern Feb. 18,1897

Smith, Talbot, Michjgan, eastern Oct. 11,1899

Van Pelt, Robert, Nebraska Sept. 9,1897

Wortendyke, Reynier J., Jr., New Jersey Mar. 22, 1895

Ryan, Sylvester J., New York, southern Sept. 10,1896

McGohey, John F. X., New York, southern Jan. 7, 1894

Bartels, John R., New York, eastern Nov. 8, 1897

Burke, Harold P., New York, western June 6, 1895

Kalbfleisch, Girard E., Ohio, northern Aug. 3,1899

Connell, James C., Ohio, northern Sept. 20, 1897

Chandler, Stephen S., Oklahoma, western Sept. 13, 1899

Rosenberg, Louis, Pennsylvania, western July 5,1898

Beck, Axel J., South Dakota May 6, 1894

Taylor, Robert L., Tennessee, eastern Dec. 20, 1899

Hughes, Sarah Tilghman, Texas, northern Aug. 2, 1896

Hannay, Allen B., Texas, southern Feb. 14,1892

Ritter, Willis W Utah Jan. 24, 1899

Michie, Thomas J., Virginia, western June 7,1896

Kerr, Ewing T., Wyoming Jan. 21, 1900

Durfee, James R., Court of Claims Nov. 3,1897

Almond, J. Lindsay, Jr., Customs and Patent Appeals June 15, 1898

Rao, Paul P., Customs Court June 15,1899

Total, 34.

Mr. RAILSBACK. Mr. Foley, you are the Acting Director of the Administrative Office. I wonder if you can shed any light on what, if

anything, has been done as far as any recommendations as to any kind

of a mandatory retirement by the Judicial Conference or any other

organization?

Mr. FOLEY. Senator Tydings has introduced a bill and referred it to

the Judicial Conference for consideration, which would provide for

mandatory retirement of judges upon reaching the age of 70, retirement in the sense that they would then become senior judges and remain

active as judges thereafter.
30 1

This bill is before the Judicial Conference at the present time that

is it is before a committee of the Conference. There they have not as

yet taken a position on it.

I believe you 

know, 

of course, Mr. Congressman, that any chief judge

must step down from that position at the age of 70.

Mr. RAILSBACK. Is that by recommendation of the Conference?

Mr. FOLEY. That is by statute.

Mr. RAILSBACK. Thank you.

Mr. McCuLLocii. Mr. Chairman, I have one question I should like

to ask of Mr. Foley. I discussed with the previous witness the judges

that had retired pursuant to law and those who continued to accept

assignments.

Do you have any statistical evidence that would show the number

of days a retired judge spends in court or in performing judicial tasks?

Mr. FOLEY. Yes, 'sir, we do. We require a report once a year on the

activity of each senior judge. This report is required in order to substantiate 'a request for space and for staff personnel.

We cannot afford staff personnel or space to a senior judge unless.the

chief judge of the circuit certifies that he is doing a substantial amount

of judicial work.

Mr. McC-uiliocH. I am very glad to know that you have those statistics and you will furnish them for the record.

Mr. FOLEY. We will be glad to, sir.

(The information referred to follows:)

SERVICE OF SENIOR JUDGES INCIDENT TO SERVICE IN COURTS OF APPEALS OR DISTRICT COURTS,

WITHIN CIRCUITS, JULY 1, 1968—JUNE 30, 1969

Circuit or district Name of judge Place of service

Service I

Courts of

appeals,

cases

heard

District courts

Number

of trials

Trial

days

1st circuit Peter Woodbury 1st circuit 8 

2d circuit Harold R. Medina 2d circuit 35 

3d circuit John Biggs, Jr 3d circuit 42 

Do Phillip Forman do 32 

Do J. Cullen Ganey do 43 

Do Albert B. Mans do 14 

Do do Virgin Islands 1 108 40

Do Gerald McLaughlin 2 3d circuit 79 

Do Austin L. Staley do 29 

Do do Virgin Islands 3 78 48

5th circuit Warren L. Jones 5th circuit 21 

Do Richard T. Rives do 64

Do Elbert Parr Tuttle do 126 

6th circuit Lester L Cecil 6th circuit 70 

Do Thomas F. McAllister do 83 

7th circuit F. Ryan Duffy 7th circuit 54

Do John S. Hastings 4 do 23 

Do Win G. Knoch do 42

Do J. Earl Major do 33

8th circuit Charles J. Vogel 8th circuit 36

th circuit Oliver D. Hamlin 9th circuit 56

Do Gilbert H. Jertberg do 63

Do Walter L. Pope 5 do 30

10th circuit One L. Phillips 10th circuit 44

Do John C. Pickett do 40

District of Columbia circuit_ Walter M. Bastian District of Columbia circuit_ 4

Do John A. Danaher 6 do 1

Do Henry W. Edgerton do 2

Do Charles Fahy do 73

Do Wilbur K. Miller do 49

Do E. Barrett Prettyman do 45

DISTRICT COURTS

2d circuit:

New York (southern)__ Edward Jordan Dimock New York (southern) 15 90

Do Richard H. Levet 2d circuit 9

Do do New York (southern) 47 133
31

SERVICE OF SENIOR JUDGES INCIDENT TO SERVICE IN COURTS OF APPEALS OR DISTRICT COURTS,

WITHIN CIRCUITS, JULY 1, 1968—JUNE 30, 1969—Continued

Circuit or district Name of judge Place of service

Service I

Courts of

appeals,

cases

heard

District courts

Number

of trials

Trial

days

DISTRICT COURTS—Continued

2d circuit—Continued

New York (eastern)___ Matthew T. Abruzzo New York (eastern) 17 16

Do Walter Bruchhausen do 28 53

Do Leo F. Rayfiel do 47 124

3d circuit:

Delaware Caleb Layton 3d 3d circuit 2 

Do do Delaware 9 18

New Jersey Thomas M. Madden New Jersey 1 1

Pennsylvania Thomas J. Clary 7 Pennsylvania (Eastern) 6 7

(Eastern).

Do _do Virgin Islands 36 30

Pennsylvania (Middle)_ Frederick V. Follmer Pennsylvania (Middle) 1 2

Pennsylvania Joseph P. Wilson , 

(Western).

Pennsylvania (Western) 10 23

4th circuit:

North Carolina Johnson J. Hayes North Carolina (Middle) 10 27

(Middle).

Do do Virginia (Western) 1 1

North Carolina Wilson Warlick North Carolina (Western) 68 40

(Western).

Virginia (Eastern) Sterling Hutcheson 4th circuit 11 

Do do Virginia (Eastern) 2 2

Do do Virginia (Western) 1 1

Virginia (Western) Alfred D. Barksdale do 1 1

5th circuit:

Alabama (Northern)_ Harlan Hobart Grooms , Alabama (Northern) 35 36

Florida (Southern) Emett Choate 5th circuit 57 

Do do Florida (Southern) 43 83

Georgia (Northern) Frank A. Hooper 5th circuit 8 

Georgia (Southern) Frank M. Scarlettm Georgia (Southern) 12 11

6th circuit:

Kentucky (Western) Roy M. She!bourne Kentucky (Western) 5 8

Michigan (Eastern) Thomas P. Thornton Michigan (Eastern) 23 61

Ohio (Northern) Frank Le Blond Kloeb Ohio (Northern) 9 15

Tennessee (Western)__ Marion Speed Boyd Tennessee (Middle) 1 3

7th circuit: Wisconsin Kenneth Philip Grubb__ Wisconsin (Eastern) 2 1

(Eastern).

8th circuit:

Arkansas (Western) John E. Miller 8th circuit 7 

Do do Arkansas (Western) 7 10

Minnesota Gunnar H. Nordbye Minnesota 14 25

Missouri (Eastern and Richard M. Duncan Missouri (Western) 10 14

Western).

Nebraska John W. Delehant Nebraska 5 17

9th circuit:

Alaska Walter H. Hodge California (Northern) 4 15

Do do Washington (Western) 3 4

California (Central) William M. Byrne 9th circuit 45 

Do do Arizona 3 3

Do do California (Central) 3 18

Do Peirsen M. Hall It 9th circuit 5 

Do do California (Central) 13 33

Do do Nevada 1 3

Do Harry C. Westover California (Central) 20 52

Do do Hawaii 1 4

California (Southern)__ Jacob Weinberger California (Southern) 2 3

Montana William J. Jameson 12 9th circuit 13 

Do do Montana 3 3

Do William D. Murray Arizona 5 12

Do do Hawaii. 1 2

Do do Montana 11 19

Do do. Washington (Western) 1 10

Nevada Roger T. Foley California (Eastern) 1 2

Do do California (Southern) 7 15

Oregon William G. East Washington (Eastern) 9 14

Washington (Western) _ John C. Bowen 9th Circuit 4 

Do do Arizona 6 9

Do do Washington (Western) 14 33

District of Columbia circuit:

District of Columbia Alexander Holtzoff District of Columbia 97 122

Do Richmond B. Keech .do 56 134

Do Burnita Shelton Matthews do 43 75

Do Joseph Charles McGarraghy do 32 79

Do Charles F. McLaughlin do 23 64

Do Luther W. Youngdahl do 33 68

Total 1,402 1,044 1,737
32

SUMMARY

Circuit or district Place of service

Service

Number of

judges

Courts

District courts

of

appeals,

cases heard

Number of

trials Trial days

Senior circuit judges Courts of appeals 29 1,241

Do District courts 2 186 88

Subtotal 31 1,241 186 88

Senior district judges Courts of appeals 10 161

Do District courts 42 858 1,649

Grand total 83 1,402 1,044 1,737

1 Service:

Courts of appeals: Includes only cases in the U.S. courts of appeals, unless service is indicated as performed in a

special court.

Trials and trial days: Includes only evidentiary trials handled by a single judge. Service on 3-judge trial courts

and time spent on the hearing of motions, the conduct of pretrial conferences, arraignments, pleas, and sentences

in criminal cases and other hearings conducted in open court are not included.

2 Retired July 15, 1968.

Includes criminal and civil trials disposed of in municipal and territorial matters.

4 Retired Feb. 1, 1969.

5 Deceased Mar. 27,1969.

6 Retired Jan. 22, 1969.

7 Retired Mar. 1, 1969.

Retired Oct. 18, 1968.

9 Retired Feb. 3, 1969.

lo Retired Aug. 2, 1968.

11 Retired Sept. 30, 1968.

12 Retired Feb. 27, 1969.
SENIOR JUDGES ON ASSIGNMENT TO SPECIAL COURTS AND COURTS OF APPEALS OR DISTRICT COURTS OF OTHER CIRCUIT, JULY 1, 1968-JUNE 30, 1969

Contributing courts Name of judge Court visited

Period of designation Actual 2

days on

assignment

Service 1

Courts

of appeals

cases heard

District courts

Number of

trials Trial days From To

COURTS OF APPEALS

3d circuit Austin L. Staley 1st circuit Sept. 30, 1968 Oct. 4, 1968 5 15

Do do 9th circuit Aug. 19, 1968 Sept. 13, 1968 8 1

5th circuit Warren L. Jones do Aug. 18, 1868 do 12 9

Do do 10th circuit Sept. 30, 1968 Oct. 4, 1968 8 12

Do Elbert Parr Tuttle California (Northern) Jan. 10, 1969 Feb. 15, 1969 30 9 12

Eighth circuit Harvey M. Johnsen 9th circuit July 22, 1968 Aug. 23, 1968 30 19

10th circuit One L. Phillips 5th circuit Feb. 10, 1969 Feb. 28, 1969 9 19

Do John C. Pickett 9th circuit Aug. 19, 1968 Sept. 13, 1968 3 1

DISTRICT COURTS

3d circuit:

Delaware Caleb R. Layton, 3d Florida (Southern) Jan. 6, 1969 May 1, 1969 39 3 20

Pennsylvania (E) William H. Kirkpatrick Court of Customs and Patent Oct. 7, 1968 Dec. 31, 1968 Appeals.

Do do do Jan. 7,1969 June 30, 1969 7 28

Pennsylvania (W) Joseph P. Willson 3 Florida (Middle) Feb. 17, 1969 Mar. 28, 1969 37 6 14

4th circuit: North Carolina (W) Wilson Warlick do Feb. 3, 1969 Feb. 21, 1969 15 3 9

8th circuit:

Iowa (N) Henry N. Graven Puerto Rico Apr. 8, 1969 Apr. 15, 1969 8

Do do Texas (Western) Nov. 15, 1968 Mar. 15, 1969 90 6 9

Missouri (E. & W.) Richard M. Duncan 4 Florida (Middle) Feb. 3, 1969 Feb. 21, 1969 71 14 27

Nebraska John W. Delehant California (Southern) Apr. 28, 1969 June 7, 1969 

Do do do Jan. 6, 1969 Mar. 8, 1969 65 16 37

Do do Pennsylvania (Western) Sept. 23, 1968 Oct. 25, 1968 36 9 22

9th circuit: Montana Wiliam J. Jameson ' 2d circuit June 16, 1969 June 25, 1969 14 33

District of Columbia circuit:

District of Columbia Alexander Holtzoff Florida (S) Jan. 15, 1969 Mar. 15, 1959 59 8 31

Do do Court of Customs and Patent May 5, 1969 May 8, 1969 4 14

Appeals.

Do Matthew F. McGuire do Mar. 3, 1969 1 5

Do Charles F. McLaughlin do May 5, 1969 May 8, 1969 4 14

SPECIAL COURTS

Court of Claims Marvin Jones 10th circuit Nov. 18, 1968 Nov. 22, 1968 7 15

Do Joseph W. Madden 9th circuit July 2, 1968 June 30, 1968 10 34

Supreme Court Tom C. Clark 2d circuit Feb. 18, 1969 Feb. 20, 1969 3 11

Do do Court of Customs and Patent Apr. 9, 1969 1 4

Appeals.

Do Stanley Reed Court of Claims Feb. 4, 1969 ()6 1 1

Total 577 235 74 181
SUMMARY

Contributing courts No. of judges Courts visited

Service

Actual days on

assignment

Courts of District courts

appeals, cases

heard No. of trials Trial days

Courts of appeals 5 Courts of appeals 75 76 Do 1 District court 30 9 12

Subtotal 6 105 76 9 12

District courts 1 Courts of appeals 14 33 Do 7 District courts 420 65 169 Do 4 Special courts 16 61 

Subtotal 12 450 94 65 169

Special courts 3 Courts of appeals 20 60 Supreme Court 2 Special courts 2 5 

Subtotal 5 22 65 

Grand total 23 577 235 74 181

1 Courts of appeals includes only cases in U.S. courts of appeals unless service is indicated as performed in a special court. Trials and trial days includes only evidentiary trials handled by a single judge. Service on 3-judge courts and time spent on the hearings of motion, the conduct of pretrial conferences, assignments, pleas, and sentences in criminal cases, and other hearings conducted

n open court are not included.

2 Actual days on assignment includetraveltime.

3 Retired Oct. 18, 1968.

4 Designation ends Mar. 31, 1970.

2 Retired Feb. 27, 1969.

As necessary.

C.A.D
35

The CHAIRMAN. Mr. Edwards.

Mr. EDWARDS of California. Mr. Chairman, on the subject that

Mr. McCulloch was discussing, I think the testimony today has been

generally that these retired judges are willing to work and historically,

they have been very cooperative in helping to dispose of cases.

Mr. FOLEY. That is true.

Mr. EDWARDS of California. However, when you furnish the statistics as requested by Mr. McCulloch, you might add a note as to the

health of the retired judges. I understand that the main reason that

some are not active after retirement is not because they do not want to,

but because they cannot because of advancing age or the condition of

their health.

Mr. FOLEY. This is true, but unfortunately, we do not have any record on that in our office. We do not know the facts as to their health

in some instances when we have tried to ask a senior judge to go to

another circuit to help out in an emergency, he has had a family problem, such as a wife who has been unable to travel and he has been loath

to leave over an extended period under such circumstances.

I may also say in connection with Congressman McCulloch's

request that our statistics will show only the actual trial days.

They won't reflect the time that a senior judge spends in motions or

pre-trial work or of course, in any Judicial Conference activity.

So they won't be a true reflection of what he is actually doing.

Mr. McCuLLocx. But it would be very helpful, and of course 'any

person who has practiced law to any great extent knows the value of

the pre-trial conference and of the motions and the like, and you can

come to a pretty good conclusion with respect to how much time a

judge is giving.

I ask all of these questions in the best of faith, because I think the

people of this country would be surprised at the very large number of

judge hours that are given by dedicated, patriotic, retired judges.

Mr. FOLEY. Yes, this is very true.

Mr. ZELENKO. Mr. Chairman?

The CHAIRMAN. Yes.

Mr. ZELENKO. Mr. Foley, I want to review with you the various

Federal courts that are presently affected by the retirement provisions

which S. 1508 amends. They include not only the district courts ( with

approximately 340 judgeships), but also the circuit courts. What is

the total number of circuit judgeships today?

Mr. FOLEY. There are 97 authorized and 92 positions actually filled.

Mr. ZELENKO. S. 1508 would also apply to the Court of Claims, the

Customs Court, the Court of Customs and Patent Appeals.

Mr. FOLEY. That is right.

Mr. ZELENKO. Do these retirement provisions apply to the Tax

'Court?

Mr. FOLEY. No sir.

Mr. ZELENKO. 

No,

these provisions pertain to the courts of the

territories, such as the Virgin Islands, the Canal Zone, and 'Guam?

Mr. FOLEY. Yes sir.

Mr. ZELENKO. 

Yes,

I failed to enumerate any courts, Mr. Foley, to

which the retirement provisions under title 28 of the United States

Code to be amended by S. 1508, would apply?
36

Mr. FOLEY. Those are all the courts. I should put in a word of caution

as to the territorial courts. The retirement provisions do not apply to

those judges because they are on term appointments.

Mr. ZELENKO. I don't know what the total number of judges affected

is, that is the total number of Federal judges in the system, but roughly

I would estimate the number about 600.

Mr. FOLEY. It is closer to about 450. It is 456 actually.

Mr. ZELENKO. The material you submitted to the subcommittee suggests that if a bill providing a 60-year-age-minimum retirement at the

end of 20 years of service were enacted, it would cover approximately

how many judges?

Mr. FOLEY. 456.

Mr. ZELENKO. How many judges would be eligible?

Mr. FOLEY. Ten.

Mr. ZELENKO. Ten judges out of 551?

Mr. FOLEY. Yes, sir.

The CHAIRMAN. Mr. Mooney.

Mr. MOONEY. I have a couple of questions, Mr. Foley. One is in

regard to a judge who has decided to accept retirement status under

371 (b) . His status as a judge has not changed any.

Mr. FOLEY. No.

Mr. MOONEY. In other words, if there is a law or regulation that prohibits a judge from doing certain things while on the bench, this same

law or regulation is still applicable to a judge who has accepted retirement status.

Mr. FOLEY. That is right. There is one slight difference, but it is not

pertinent to your question.

That is that a judge taking senior status no longer sits in the court

en bane.

Mr. MOONEY. Mr. Chairman, I have a series of questions that I would

like to ask Mr. Foley in the interest of developing a complete record.

It should not take but a few minutes. Some are questions and some are

statements, Mr. Foley.

Under 371 (a)

'

title 28, United States Code, which S. 1508 does not

amend, a Federal justice or judge resigns from office, not retires from

office. Is that correct?

Mr. FOLEY. That is right.

Mr. MOONEY. In other words, a Federal judge or justice before he

can resign under 371 (a.) must be 70 years of age and have served 10

years continuously or otherwise?

Mr. FOLEY. Yes.

Mr. MOONEY. Does a judge who resigns under 371 (a) do so with full

pay and after resignation, can he pursue other gainful occupations and

still retain his full pay?

Mr. FOLEY. Yes, sir.

Mr. MOONEY. S. 1508 ( a) does amend 371(b) which provides that the

Federal justice or judge may retire at 70 years of age with 10 years

continuous service or at 65 years of age with 15 years of service.
37

S. 1508 would provide retirement at any age, after serving at least

20 years. Under this section, 371 (b) , what a judge retires from is the

regular service not from office.

Mr. FOLEY. Yes, that is right.

Mr. MOONEY. Therefore, he retains his judge status and is subject to

Federal code prohibitions.

Mr. FOLEY. That is right.

Mr. MOONEY. Such as, he could not practice law?

Mr. FOLEY. Yes, that is right.

Mr. MOONEY. Are there any other Federal code provisions prohibiting off the bench activities other than practicing law, that you can

recall?

Mr. FOLEY. None that I can think of.

Mr. MOONEY. Is it possible for a territorial judge to retire from regular active service under 371 (b) or any other United States Code provision?

Mr. FOLEY. A territorial judge may retire under section 373—I am

sorry, he may not retire, he may resign under 373, but there is no provision for retirement of a territorial judge.

Mr. MOONEY. Why are they treated differently?

Mr. FOLEY. Presumably because it was a term appointment through

the years. It was an 8-year appointment, many times a new judge will

be appointed every 8 years, historically.

Mr. MOONEY. They get a somewhat better deal in that they can resign at 65 with pay, that is, the pay at which they resigned, for life,

and practice law?

Mr. FOLEY. That is the only way they can retire with any pay is to

resign. 

Mr.MOONEY. Under 1508(b) as it passed the Senate, may a territorial judge resign with full pay at age 58 and continue to draw his

pension for life and pursue other gainful occupations?

This is a territorial judge under S. 1508 (b) ?

Mr. FOLEY. This is under the proposed amendment, subsection (b)

of S. 1508?

Mr. MOONEY. Yes.

Mr. FOL. Yes, as long as he has had 20 years in.

Mr. MOONEY. Thank you, Mr. Foley.

The CHAIRMAN. Mr. MacGregor.

Mr. MAcGREooR. No questions, Mr. Chairman.

The CHAIRMAN. Are there any other questions?

Thank you very much, Mr. Foley. We appreciate your testimony.

That will conclude the hearings for today.

(Whereupon, at 11:20 a.m. the subcommittee adjourned, subject to

call of the Chair.)

(Subsequently the following information was furnished by the

administrative office of the United States Courts.)
38

SENIOR JUDGES, U.S. COURTS

Name and Court

Prettyman, E. Barrett,

D.C. Court of Appeals

Miller, Wilbur K.,

D.C. Court of Appeals

Bastian, Walter M.,

D.C. Court of Appeals

Washington, George Thomas,

D.C. Court of Appeals

Fahy, Charles,

D.C. Court of Appeals

Danaher, John A.,

D.C. Court of Appeals

Woodbury, Peter, 1st Circuit

Swan, Thomas W., 2nd Circuit

Medina, Harold R., 2nd Circuit

Mans, Albert Branson, 3rd Circuit

Forman, Phillip, 3rd l Circuit

Biggs, John, Jr., 3rd Circuit

Ganey, J. Cullen, 3rd Circuit

Staley, Austin L., 3rd Circuit

McLaughlin, Gerald, 3rd Circuit

Kalodner, Harry E., 3rd Circuit

Hutcheson, Joseph C., Jr., 5th Circuit

Rives, Richard T., 5th Circuit

Jones, Warren L., 5th Circuit

Tuttle, Elbert Parr, 5th Circuit

McAllister, Thomas F., 6th Circuit

Cecil, Lester L., 6th Circu' t

O'Sullivan, Clifford, 6th Circuit

Major, J. Earl, 7th Circuit

Duffy, F. Ryan, 7th Circuit

Konch, Win G., 7th Circuit

Hastings, John S., 7th Circuit

Castle, Latham, 7th Circuit

Woodrough, Joseph W., 8th Circuit

Johnsen, Harvey M., 8th Circuit

Vogel, Charles J., 8th 'Circuit

Hamlin, Oliver D., Jr., 9th Circuit

Jertperg; Gilbert II., 9th Circuit

Phillips, One L., 10th Circuit

Huxman, Walter A., 10th Circuit

Pickett, John C., 10th Circuit

Grooms, Harlan Hobart, Alabama, N.

Hodge, Walter H., Alaska

Miller, John E., Ark., W.

Halbert, Sherrill, Calif., E.

Hall, Peirson M., Calif., C.

Weinberger, Jacob, Calif., S.

Yankwich, Leon R., Calif., S.

Westover, Harry C., Calif., S.

Byrne, William M., Calif., S.

Layton, Caleb R., III, Delaware

Steel, Edwin D., Jr., Delaware

Schweinhaut, Henry A.,

Dist. of Columbia

McLaughlin, Charles F.,

Dist. of Columbia

Pine, David A., Dist. of Columbia

Youngdahl, Luther W.,

Dist. of Columbia

McGuire, Matthew F., Dist. of Columbia

Keech, Richmond B., Dist. of Columbia

MeGarraghy, Joseph Charles,

Dist. of Columbia

Matthews, Burnita Shelton,

Dist. of Columbia

Choate, Emett C., Fla., S.

Whitehurst, George W., Fla., N., M., & S.

Sloan, William Boyd, Ga., N.

Hooper, Frank A., Ga., N.

Scarlett, Frank M., Ga., S.

Campbell, William J., Ill., N.

Briggle, Charles G. Ill., S.

Shelbourne, Roy Ie., Ky., W.

Lederle, Arthur F., Mich., E.

Thornton, Thomas P., Mich., E.

Donovan, Dennis F., Minn.

Nordbye, Gunnar H., Minn.

Cox, Allen, Miss., N.

Reeves, Albert L., Mo., W.

Duncan, Richard M., Mo., E. & W.

Murray, William D., Montana -

Jameson, William J., Montana

Delehant, John W., Nebraska

Foley, Roger T., Nevada

Hartshorne, Richard, N.J.

Madden, Thomas M., N.J.

Dimock, Edward Jordan, N.Y., S.

Cashin, John M., N.Y., S.

Levet, Richard H., S.

McGohey, John F. X., N.Y., S.

Abruzzo, Matthew T., N.Y., E.

Rayfiel, Leo F., N.Y., E.

Bruchhausen, Walter, N.Y., E.

Hayes, Johnson J., N.C., M.

Warlick, Wilson, N.C., W.

Wilkin, Robert N., Ohio, N.

Kloeb, Frank Le Blond, Ohio, N.

Underwood, Mell G., Ohio, S.

East, William G., Oregon

Welsh, George A., Penn., E.

Kirkpatrick, William H., Penn., E.

Clary, Thomas J., Penn., E.

Follmer, Frederick V., Penn., M.

Willson, Joseph P., Penn., W.

Gourley, Wallace S., Penn., W.

Beck, Axel J., South Dakota

Boyd, Marion Speed, Tenn., W.

Davidson, T. Whitfield, Texas, N.

Thoma son, Robert Ewing, Texas, W.

Barksdale, Alfred D., Va., W.

Bowen, John C., Washington, W.

Grubb, Kenneth Philip, Wisconsin, E.

Madden, Joseph W., Court of Claims

Jones, Marvin, Court of Claims

Lawrence, Charles D.,

U.S. Customs Court

Wilson, David John,

U.S. Customs Court

Donlon, Mary H., U.S. Customs Court

Total, 107.