Evening star., 1937-02-05
Message ON Judiciary

was provided by the Congress.
When after 80 years of our national
history the Congress made provi-
sion for pensions, it found . we'll.
iMrenched tradition among judges
to cling to their posts. In many
instances far beyond their years Of
physical or mental capacity. Their
salaries were small. As with other
men, responsibilities and obliga-
tions accumulated. No alternative
had been open to them except to
attempt to perform the duties of
their Offices to the very edge Of the
grave.
In exceptional cases, of course.
judges, like other men, retain to an
advanced age full mental and
physical vigor. Those not so for
tunate are often unable to perceive
their own infirmities. They seem
to be tenacious Of the appearance
of adequacy" The voluntary re-
tirement law Of 1869 provided,
therefore, only q partial solution.
That law. still in force, has not
proved effective In inducing aged
judges to retire on a pension.
This result had been foreseen
in the debates when the measure
was being considered. 1t was then
proposed that when q Judge re-
fused to retire upon reaching the
age Of 10 an additional judge
should be appointed to assist in
the work of the court. The pro-
posal passed the House but was
eliminated in the Senate.
With the opening of the twen-
tieth century and the great in
crease Of population and COM
merce and the growth of q more
complex type Of litigation. similar
proposals were introduced in the
Congress. To meet the situation
in 1918, 1914, 1915 and 1916 the
Attorney General then in ofiice
recommended to the Congress that
when district or q circuit judge
failed to retire at the age Of 10
an additional judge be appointed
in order that the affairs of the
court might be promptly and
adequately discharged.
In 1919 q law was finally passed
providing that the President may"
appoint additional district and
circuit judges, but only upon q
finding that the incumbent Judge
over 10 "is unable to discharge
efficiently all the duties of his
Office by reason of mental or
physical disability of permanent
character" The discretionary and
indefinite nature of this legisla-
ton has rendered it ineffective.
No President should be asked to
determine the ability or disability
Of any particular Judge.
The duty of a Judge involves
more than presiding or listening
to testimony or arguments. 1t Is
well to remember that the mass of
details involved in the average of
law cases today is vastly greater
and more complicated than even
20 years ago. Records and briefs
must be read. statutes. decisions
and extensive material of . tech
nical. scientific. statistical and eco
nomic nature must be searched
and studied; opinions must be
formulated and written. The mod
ern tasks of judges call for the
use Of full energies.
Modern complexities call also for
a constant infusion of new blood in
the courts, just as it Is needed in
executive functions of the Gov
ernment and in private business.
A lowered mental or physical vigor
leads men to avoid an examination
of complicated and changed midi
tions. Little by little, new facts be-
come blurred through old glasses
fitted, as it were, for the needs of
another generation; older men, as
suming that the scene Is the same
as 1t was In the past. cease to ex-
plore or inquire into the present or
the future.
Recognized in
Other Respects.
We have recognized this truth in
the civil service Of the Nation and
Of many States by compelling re-
tirement on pay at the age of 70.
We have recognized it in the Army
and Navy by retiring Officers at the
age Of "a. A number Of States have
recognized it by providing in their
constitutions for compulsory retire.
ment Of aged judges.
Life tenure of judges, assurtl by
the Constitution, was designed to
place the courts beyond tempta.
tions or influences which might i'm.
pair their judgments: it was not in
tended to create q static judiciary.
A constant and systematic addition
of younger blood will vitalize the
courts and better equip them to
recognize and apply the essential
concepts of justice in the light Of
the needs and the facts of an ever
changing world.
It is obvious, therefore, from both
reason and experience, that some
provision must be adopted which
will operate automatically to suple-
ment the work Of Older judges and
accelerate the work of the court.
I, therefore, earnestly recom-
mend that the necessity Of an in
crease In the number Of judges be
supplied by legislation providing
for the appointment of additional
judges in all Federal Courts, with.
out exception, where there are in.
cumbent judges Of retirement age
who do not choose TO retire or to