Evening star., 1937-02-05
REVITALIZED JUDICIAL SYSTEM URGED BY CUMMINGS
resign. II an elder Judge is not in
fact incapacitated. only good can

VI Vic uOShCt, IL IllC CdPuCity Va
an elder Judge Is In fact impaired,
the appointment of an additional
judge is Indispensable. This seems
to be a truth which cannot be con-
tradicted.
I also recommend that the Con-
gress provide machinery for tax
ing care of sudden or long-stand-
ing congestion In the lower courts.
The Supreme Court should be
given power to appoint an admin
istrative assistant who may be
called a proctor. He would be
charged with the duty of watching
the calendars and the business Of
all the courts in the Federal sys-
tenn. The Chief Justice thereupon
should be authorized to make .
temporary assignment Of any cir
cult or district Judge hereafter
appointed In order that he may
serve as long as needed In any
circuit or district where the courts
are In arrears.
attach a carefully considered
draft of . proposed bill, which, If
enacted. would, I am confident,
afford substantial relief. The pro-
posed measure also contains q
limit on the total number Of
judges who might thus be appoint
ed and also limit on the poten-
tial size OF any one Of our Federal
courts.
These proposals do not raise any
issue of constitutional law. They
do not suggest any form Of COM
pulsory retirement for incumbent
judges. Indeed, those who have
reached the retirement age, but de-
sire to continue their judicial work,
would be able to do so under less
physical and mental strain and
would be able to play q useful part
in relieving the growing congestion
In the business OF our courts.
Among them are men OF eminence
and great ability whose services
the Government would be loath to
lose. II, on the other hand, any
judge eligible for retirement should
feel that his court would suffer
because Of an increase in its mem
bership. he may retire or resign
under already existing provisions
OF law If he wishes so to do. In
this connection let me say that
the pending proposal to extend to
the justices Of the Supreme Court
the same retirement privileges now
available to other Federal judges.
has my entire approval.
One further matter requires I'M
mediate attention. We have wit
messed the spectacle Of conflicting
decisions in both trial and appel
late courts on the constitutionality
of every form Of important legis-
lation. Such q welter of uncom-
posed differences Of judicial opinion
has brought the law. the courts.
and, indeed, the entire adminltra-
ton of justice dangerously near to
dsrepute.
A Federal statute Is held legal by
one judge in one district: it is
simultaneously held illegal by
another Judge in another district.
An act valid in one judicial circuit
is invalid in another judicial cir
cult. Thus rights fully accorded
to one group of citizens may be
denied to others. AS a practical
matter this means that for periods
running as long as one year or two
years or three years-until final
determination can be made by
the Supreme Court-the law loses
its most indispensable element
equality.
Moreover, during the long proc
esses of preliminary motions, origi-
nal trials, petitions for rehearings.
appeals, reversals on technical
grounds requiring re-trials, motions
before the Supreme Court and the
final hearing by the highest tri-
bunal-during all this time labor,
industry, agriculture, commerce
and the Government itself go
through an unconscionable period
Of uncertainty and embarrassment.
And it Is we'll to remember that
during these long processes the
normal operations Of society and
Government are handicapped in
many cases by differing and divid-
ed opinions in the lower courts
and by the lack of any clear guide
for the dispatch of business.
Thereby our legal system is fast
losing another essential Of Justice
certainty.
Finally, we find the processes Of
Government itself brought to
complete stop from time to time
by injunctions issued almost auto
matically, sometimes even without
notice to the Government. and not
infrequently in clear violation Of
the principle Of equity that injunc-
tions should be granted only in
those rare cases of manifest IL
legality and irreparable damage
against which the ordinary course
of the law offers no protection.
Statutes which the Congress enacts
are set aside or suspended for long
periods of time, even in cases to
which the Government is not a
party.
In the uncertain state of the law.
1t is not dificult for the ingenious
to devise novel reasons for attack
ing the validity of new legislation
or its application. While these
questions are laboriously brought to
issue and debated through a series
of courts, the Government must
stand aside. It matters not that
the Congress has enacted the law.
that the Executive has signed it
and that the administrative ma
chinery is waiting to function. Gov
ernment by injunction lays a heavy
hand upon normal processes: and
no important statute can take ef-
fect-against any individual or Or
ganization with the means to en-
ploy lawyers and engage in wide
flung itigation-until it has passed
through the whole hierarchy Of the
courts. Thus the judiciary, by
postponing the effective date Of acts
Of the Congress, Is assuming an ad-
ditional function and is coming