STATEMENT OF HON. JOHN V. LINDSAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK; ACCOMPANIED BY WALTER R. MANSFIELD, NEW YORK, N.Y., AND ARNOLD G. FRAIMAN, NEW YORK, N.Y.

Mr. LINDSAY. Mr. Chairman and members of the committee, I have the honor of introducing Mr. Walter Mansfield who is here in his capacity as a representative of seven bar associations in New York.

Mr. Mansfield is a distinguished and outstanding lawyer in the city of New York and a partner in the law firm of Donovan, Leisure, Newton & Irvine.

I have had the privilege of working with the Bar Association of the City of New York on this subject and I am sure that the members of the committee will be interested in what he has to say about the problem, particularly in the southern district of New York.

The CHAIRMAN. Mr. Mansfield, before you proceed, and as you probably know, the omnibus bill contains a provision for two new district judges for the eastern district and two additional judges for the court of appeals.

Mr. MANSFIELD. I am aware of that.

The CHAIRMAN. Those are recommendations which are embraced within the recommendations of the Judicial Conference. Incidental

I do

ly, they asked for six new judgeships for the southern district. I am going to ask you to make your statement rather brief. do not think we need much additional persuasion on the subject, if you do not mind.

You can submit your statement for the record.

Mr. MANSFIELD. Thank you, Mr. Chairman.

I am afraid I have only a semiprepared set of notes here and I will try to be brief.

Thank you, Mr. Lindsay.

The CHAIRMAN. We have been here all morning and we have other chores. We do not want to cut you off but I will ask you to be brief. Mr. MANSFIELD. I think that I can be brief.

They say not many souls are saved after the first 15 minutes and I will try to see if I can abide by that.

First of all, I want to thank you, Mr. Chairman and members.

I have a codelegate, Mr. Arnold Fraiman and, for the record, I would like it to be noted that the associations we have been authorized to represent here are the bar of the city of New York, the New York County Lawyers Association, the Bronx Bar Association, the Empire State Chapter of the Federal Bar Association, the Maritime Law Association, the New York State Patent Law Association and the New York State Bar Association.

I mention that because I think you will agree with me, Mr. Chairman, that that is about as complete a coverage of the practicing bar as you could represent on this matter.

Mr. MEADER. How about the Lawyers Guild?

Mr. MANSFIELD. We have neither solicited nor secured representation from them, Congressman Meader and I doubt if we will.

I feel a little bit like a pigmy on the shoulders of the giant when I say that we represent all of these associations and I ought to tell you why. The reason is that Mr. Fraiman and I were members of

a joint committee appointed by these associations to study the need for additional judges, and participated in the drafting of the report which I think you have before you because I believe Congressman Lindsay offered it yesterday.

I ought to tell you when we undertook this study all of the lawyers on the committee agreed that some kind of prompt and drastic action was needed to avoid a threatened breakdown in administration of justice in the southern and eastern districts. The delay in getting cases to trial there has reached a point where I think it is intolerable. The CHAIRMAN. I was aware of all that and that is why I staged these hearings. I did it rather expeditiously to respond to that need. Mr. MANSFIELD. Yes, but may I point out to you, Mr. Chairman, what we found. What we found was a situation we had not contemplated even though we were aware of that great problem. What we found was that while other Federal districts need additional judges, the situation in the southern district of New York is unique.

As of July 1 of 1959 the 18 judges in the southern district representing 7 percent of the Federal district judges in the country were handling a caseload of 10,947 civil cases, or approximately 20 percent of the 56,000-odd cases pending before the 86 Federal courts that have purely Federal jurisdiction.

I mention that because I have heard other advocates here for other districts and I also want to bring out that these quantitative statistics can often be misleading.

To us, the important thing, as practicing lawyers, is the fact that in the southern district of New York you have-and this is clearly provable by statistics-over one-third of the Government's antitrust suits and other complicated litigation.

Mr. Chairman, I pause to note that I have heard you on occasion advocate a more vigorous and effective enforcement of the antitrust laws and I cannot help but say to you, sir, that if we are going to have that enforcement, we are certainly going to need the additional judges with which to effectuate that enforcement.

We have in the southern district 20 percent of the country's private antitrust litigation in addition to the Government's suits. We have 20 percent of the patent litigation, complicated infringement litigation. We have 45 percent of the admiralty proceedings and I am not including the Jones Act personal injury cases. I am only referring to collision-type cases. That is the kind of case that takes a great deal more of a judge's time and intellect than your ordinary negligence suits.

It involves not just the many days spent on trial, but days and frequently weeks and months studying briefs, studying transcripts that run into thousands of pages, and giving findings of fact that often run into hundreds of pages.

I can only mention the Bethlehem Steel-Youngstown merger decision of Judge Edward Weinfeld, as a case in point. There he had 12,000 pages of record and 199 pages of findings.

I think you could very rightly ask, is this backlog, because the judges are lazy? Is it because they are not doing as much as the judges in other districts?

All I can say is that we looked into this and here is what we found: We found that in 1959, and this is typical, the southern district of

New York disposed of 334 cases per judge as against 253 in the 12 largest metropolitan districts which do about 45 percent of the business in the country, as against 236 for all 86 Federal districts.

I do not want to throw any brickbats at the advocates for certain other districts, but I could not help noting as I listened to those who were urging districts for north and south California, that the comparative figures show; filed, 184, terminated, 177 in the northern district for the same year; and filed in the southern district, 129, terminated, 136, for the same year 1959.

In the southern district of New York we had filed 365 cases in that same period per judge and per judge disposed of 334 cases. That does not even take into consideration the other facts that I pointed out to you; namely, that we have the greatest conglomeration of complicated litigation in the southern district-that is, the long and protracted type of suit-of any district in the country.

The point I want to get at is that the problem is more serious than one of delay. It raises the question of what kind and quality of justice we are going to get from these judges.

Anyone who has been forced, as I have been time and again, to argue motions before a judge in southern district at 7 and 8 o'clock at night, realizes what I mean. After he has been listening all day to some 150-some-odd motions he is dead tired. How can he be expected to decide it fairly and efficiently? His workload will not permit him to postpone because it is frequently a temporary injunction you are seeking, so he has to listen.

I have been in other districts and I can say that the motion calendar alone in the southern district is so overwhelmingly greater than in any other district and I am talking on a per-judge basis-there is no room for comparison. In 1959 the court processed over 10,000 motions which was a 20 percent increase over 1958 and a 32 percent increase over 1959.

Our committee studied this and many more facts. We were not predisposed toward urging additional judges because I think the committee, and most lawyers, feel a little suspicious about the suggestion of more judges. It is always the easy panacea for problems.

We looked at what we could do short of more judges to solve this terrible problem we are beginning to face. We talked to the judges, we talked to lawyers before them, and the steps that are being taken now to improve the pretrial procedure. The court is already utilizing the services of visiting judges and I can tell you why visiting judges will not work, but I do not want to take more than the allotted time.

However, I can say that every reasonable procedural measure is being worked on but I assure you that they will not solve this problem. The problem is that we are getting more business but we are not getting more judges. In other words, more business annually.

I think it was best summarized, Mr. Chairman, in the New York Times editorial on January 20, 1960, which I would ask leave, if I may, to submit for the record, and quote just one sentence referring to this situation in which the Times said:

** The flood of cases has risen no less than 36 percent in the last 5 years with the same number of judges to carry the load * *

I also would ask leave to submit a World Telegram editorial of January 19, 1960, pointing out certain additional facts with respect to the same subject matter.

One last point I want to make with you, gentlemen, if I may, and that is that your acts of Congress have no practical force and effect without judges to enforce them. We have just seen the enactment of the Landrum-Griffin bill which both labor and management tell us they expect to result in a flood of litigation upon the part of union members and much of it in the southern district of New York because that is the situs of the headquarters of a good many unions. Everything points to the fact that we are going to have more litigation as a result of these acts but we are certainly not going to get the respect for that litigation or the enforcement of it unless we have the judges. After reviewing all of these facts, we concluded that the absolute minimum would be six judges.

We are prepared to show you how the six judges will be used, but I realize that would take time.

All I can say to you is that we have submitted this report which I think spells out the picture as best we can and if there are any questions you would like to ask I am prepared, and Mr. Fraiman, to answer them.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you very much, Mr. Mansfield.

We will have your data put in the record at this point and we will be very happy to read that.

If there is anything else you want to submit for the record it will be held open for that purpose.

Mr. MANSFIELD. If I could, Mr. Chairman, I would like to submit a copy of this statement as a part of the record after I have it retyped. The CHAIRMAN. You have a right to do that. There will be plenty of time.

(The two editorials referred to follow :)

[From the New York Times, Jan. 20, 1960]

JUSTICE VERSUS POLITICS

The city bar association's report on the need for six additional Federal judgeships in this southern district of New York raises a clear-cut issue of jutice versus polictics. That it exists at all is a disgrace, made worse as the situation grows increasingly acute. The bar association has done a conspicuous service, to the public and to frustrated litigants, in its able presentation of the case for more judges-one which we hope will have a massive impact on Congress, where responsibility for the present situation squarely rests and to which the association's resolution appealed last night.

So remiss has Congress been in meeting the demands of swift justice in this district that the parties in civil actions now have to wait more than 2 years before their cases come to trial. As the report has pointed out, the delay "causes hardships to litigants and brings the court into disrepute"; in patent cases it has "encouraged willful and wanton infringement." The outstanding cause for this deplorable situation is the failure of Congress to create enough judgeships, as the years have gone by, to keep up with the increase in cases that the court has had to handle.

The flood of cases has risen no less than 36 percent in the last 5 years, with the same number of judges to carry the load. And their burden is greater than that which judges in other districts have to bear. The southern district has 20 percent of the civil cases in all the Federal courts but only 7 percent of the total number of judges to hear them. No wonder the New York court has failed by 2,374 to keep up in decisions with the new cases filed in the past 2 years.

While the situation is more acute here than elsewhere it is urgent everywhere. For the past 5 years the Judicial Conference of the United States has been urging Congress to create more judgeships-raising the number as conditions

have grown steadily worse. But no action at all has been taken. Now a bill for 45 more places on the Federal bench is gathering dust in congressional committee rooms. Reason: the politics of possible appointments. And this in spite of the fact that President Eisenhower has pledged to appoint to new places an equal number of Democrats and Republicans qualified for the judgeships.

Could it be that leaders of the Democratic majority hope a Democratic President, bound by no such pledge, will be elected next year, or that some fear that President Eisenhower might not appoint the right kind of Democrats? Anyway, the delay is inexcusable.

[From the New York World Telegram and Sun, Jan. 19, 1960]

NOT ENOUGH JUDGES

A report by the Association of the Bar of the City of New York and five other groups compellingly states the need for augmenting the bench in the Federal court for the southern district of New York.

The report asks that Congress promptly provide six more judges to avert "a threatened breakdown in the administration of justice."

Among the salient facts: The court has 20 percent of the national total of civil cases but only 7 percent of the total of judges. Calendar congestion has reached the point where it takes more than 2 years to get a suit to trial, compared to 15 months elsewhere. Nor is this because judges in this area are slow or inefficient; their record is far above the national average in disposing of cases.

It may be trite, but it is no less true, to point out that justice delayed is justice denied. That is the effect of the judiciary shortage cited. Additionally, it's

an unfair burden on the judges swamped with work.

This situation is all the more deplorable because it is needless. U.S. Attorney General Rogers tried last year to interest Congress in a plan to add 45 Federal judges throughout the country. Although he pledged that Democrats would get their full share of appointments, congressional brass obviously decided to hold off and see who got into the White House this year.

This is a high price for the courts and the public to pay for a political wrangle, particularly one that from all appearances is synthetic and groundless anyway. This is one item of business Congress can and should attend to at its present session. Efficient justice should not be a political pawn.

Mr. MANSFIELD. If there are any questions, I want you to know that we are prepared here and have come with the results of our endeavors and we are perfectly happy to try to answer them.

One last point: We have looked into the matter of facilities. Judge Ryan has scoured the courthouse and adjoining area and feels pretty confident that if he could get the six judges recommended by the Judicial Conference, he would be able to provide the additional space for judges and chambers.

The CHAIRMAN. Thank you very much, Mr. Mansfield.
Mr. LINDSAY. Thank you, Mr. Chairman.

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,

WILLIAM R. FOLEY, Esq.,

General Counsel, Committee on the Judiciary,
House of Representatives, Washington, D.C.

New York, N.Y., February 5, 1960.

DEAR MR. FOLEY: Confirming my conversation with you last Wednesday when I appeared before the Subcommittee No. 5 on behalf of various bar associations to urge that six additional judgeships be created for the southern district of New York, I enclose herewith a copy of my statement for inclusion in the record of the proceedings.

On the occasion of my appearance and testimony Chairman Celler suggested that the statement could be transmitted and made part of the record and the court reporter indicated that upon receipt of it he would attach it to the minutes.