and the activity of regulatory boards and commissions of the Federal Government which likewise have increased the volume of controversies getting into the Federal courts.

Mr. WALSH. That is true. There has been a steady increase in tax cases and there is a rising number of criminal cases and an increase in antitrust cases.

Actually, our Federal backlog is smaller than it has been in years. We have reduced that to its smallest point, I think since World War II; but the very fact that we have been accelerating our dispositions has brought more work to the courts.

But your point is true and is accurate. I think these other factors would certainly justify the expansion of the courts without the factor you raised, but it is an additional factor that should be considered as well.

Mr. MEADER. I read somewhere an estimate of the cost of this bill, not simply the salaries of the 45 additional judges you must have worked out some kind of a cost rule of thumb per judge for the facilities, for an estimate to be made of the additional chambers and courtrooms and so on.

Mr. WALSH. Well, I am sure that the Administrator of the courts will have that for you. In other words, the cost of the clerks, the marshals, the law clerks, the bailiffs, all of those who go with the judges, and I suppose there is a formula for computing the cost of the chambers of the courtroom.

But my only point is, when you compute the cost of the additional judges, we should deduct the cost of the interest we are spending waiting for trial. For example, in land condemnation cases, we have taken the land and we know that we are going to have to pay for it. There may be a dispute as to the amount, but in the end we are going to have to pay and the amount is drawing 6-percent interest per annum while the litigation is held up.

If we can get enough judges so that we can have a determination of what we are supposed to pay, then we can pay within 6 months and save the interest on this vast amount of land that we take. That interest is going to be a lot less than if we have to wait 2 years.

And so, when you deduct that from the cost of the judges, I really think that the Government will save money rather than lose money-but I would like to have someone who has made a more scientific study testify to that point.

Mr. DONOHUE. Don't the land damage cases have preference in Federal courts?

Mr. WALSH. I don't think so- as a matter of fact, the criminal cases have preference over everything, and then you get cases where a party has been personally injured. I think that the criminal situation is that the family needs the money and so he is likely to get a preference.

And then you will get cases like-well, you get a case like the Andrea Doria case, for example, where you can dispose of 3,500 claims

Mr. DONOHUE. Well, you establish liability, and do you have land damages

Mr. WALSH. That is right, but the question of damages in land, that takes a long time to prove the question, and you have to do it differently.

Mr. DONOHUE. This item of interest being paid while the case is waiting, how much of an item is that?

Mr. WALSH. Well, the interest will run, it depends on the final outcome of the case

Mr. DONOHUE. Well, the interest stops insofar as the amount paid in?

Mr. WALSH. The interest runs on the amount that he receives over and above that, and if you are going to have a lawsuit, usually the amount found is bound to be greater than, usually, than the amount paid, that is, the amount paid in is bound to be less than the amount that he recovers.

Mr. ROGERS. Is that not controlled by the laws of the State rather than Federal laws?

In other words, this question of whether the interest would run on the full amount or whether the interest would run on the amount awarded by the court?

Mr. WALSH. My recollection is there is a Federal statute but I am not sure.

I think it is uniform throughout the country.

Mr. DONOHUE. What has been your experience with pretrial? Mr. WALSH. Pretrial is of great value when it is conducted by the judge who is going to try the case, and of much less value when conducted by somebody else, because then the judge that is going to try the case has got to review that and, indeed, may find himself boxed by a pretrial order which he would not have granted.

Mr. DONOHUE. You could assign 150 cases to a judge and he could pretry all of those cases.

Mr. WALSH. Well, in a lot of cases, Congressman, in several big districts, the cases are not assigned to a judge until they actually go to trial. For example, in New York they have a central calendar system and when a case comes up, it may come up for pretrial before one judge and actually be tried by another.

Now 150 cases of the nature you are discussing, where a pretrial would be of great value, it is only of value if we can assign a case to the judge for all purposes, the way the Andrea Doria was.

Nothing was tried in that case, we settled everything and the 3,500 claims ended up with everybody signing a release.

Now, that was only possible because it was assigned to one judge at the outset. This, however, requires an adequate number of judges because if we took 150 cases and assigned them to 1 judge, if that should be done, you have 18 judges and that would mean each one would have about 10 of these cases, and he would be so loaded that he would have very little time to take care of the heavy volume of routine cases and the court would be completely swamped, and so the result would be very unsatisfactory. There was 1 case where 18 motions were held before 12 separate judges. It was a private antitrust case and 12 judges had to become familiar with the facts and pass on it. But it is just because there are not enough judges to assign to these cases as they come into the court.

I am sorry to have taken this much time as I did, because I know you all have a deep sense of this as well as I.

I would like to make one last point.

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I don't think anyone is dogmatic as to what additional judges we should or should not have. The Judicial Conference has gone to great trouble, first of all, to analyze the cases which have been filed over the years and the delays in comparative terms, and then they have compensated that by taking into account problems of distances in the districts. For example, in the western district of Texas or the northern district of Texas, where there may be fewer cases per judge than in New York, but where a judge has to travel and witnesses and lawyers all have to travel great distances, that is a compensating factor. These and other considerations have gone into the Judicial Conference recommendation and the Department supports the Judicial Conference bill.

It was also supported by the American Bar Association, the Federal Bar Association, the American Judicature Society and the Institute of Judicial Administration, each of which has tried to figure out alternatives to additional judges.

Nobody likes to see a court becoming bigger. A court of 6 judges is more pleasant to work in and perhaps more efficient than a court of 18 judges, but when 18 judges cannot keep up with the work and when they are getting behind 1,000 or 2,000 cases a year, there is no alternative but additional judges, whether you like it or

not.

That is the conclusion we have come to and the Justice Department joins in that recommendation.

I don't think there is anything further I would like to say, except I would like to go to a question that the chairman asked Mr. Lindsay. He asked Mr. Lindsay whether in the southern district of New York he would compromise for four additional judges. Well, I can tell you that everybody is so anxious to get this bill that they would, of course, compromise, make any reasonable compromise.

But before that compromise is decided upon, I would like to explain why the Judicial Conference has asked for six judges there, and the answer is very important. The southern district of New York has been compromised in the past.

It is always easy to say, spread these judges around, but we forget that in that one district we have one-fifth of the caseload in the Federal system. One-fifth of all cases are handled there and when you compromise the southern district of New York you are not only compromising New Yorkers, you are compromising the rest of the country

as well.

There we have one-fifth of the cases and one-fourteenth of the judges, which is an obvious imbalance.

As the chairman pointed out, you cannot just measure the caseload by the numbers alone. One-third of the antitrust cases commenced by the Government are started in New York and those are the most time-consuming cases that a judge can get.

And these other cases, I just happen to know about some.

Judge Weinfeld had the Bethlehem merger, which was a very difficult case

The CHAIRMAN. If I may be allowed a little plug, that was under the Celler Act.

Mr. WALSH. Well, your plug is very well deserved, Mr. Chairman; it is an act used in an increasing number of cases.

Now, the record in that 1 case was 12,000 pages and Judge Weinfeld's opinion was 88 pages long, and he is one of the best judges in the country and for weeks he was preoccupied with working on that

case.

I just happen to know that he has not had a summer vacation for years. He loves the work and undoubtedly he got that work done through the summer-but it is really an unfair load to put on a judge to ask him to handle routine cases and then have him handle these complicated cases in the evenings and the afternoon.

The backlog in New York now is 11,000 cases and they have got 18 judges. In other words, the backlog averages 623 cases per judge and the national average is 256.

If, for a moment, you will give New York just the additional 6 judges, and that makes a total of 24, then if you divide the number of new cases filed each year in that district by 24 judges you get an average of 273 new cases per judge. The national average is 215.

Again, add your 6 judges to that court and divide the 11,000 backlog by 24 and you get an average of 468 cases per judge and compare that with the national average of 256.

The southern district, again, is one district that I don't think anyone would point to as other than a hard-working district.

As I told you, 4 years ago that court pitched in, they devised a new set of rules and they cut the calendar for the moment to where it came to within just 100 cases of being current.

Then, one judge had a heart attack, another got sick-we just could not hold it down, that is all.

Those judges are working as hard as they can, they are trying cases through the summer, they hear motions all summer long, but they could not keep up.

If a compromise is necessary, the southern district would be glad to get four judges or whatever they can get, but I do hope before you cut the six, that you think about it because that six is really for the whole country and not just the southern district.

The CHAIRMAN. I understand you were one of the judges of the southern district and that you were a credit to that district.

Mr. WALSH. Thank you very much.

I have a great affection for the court.

The CHAIRMAN. Thank you very much.

We will resume our deliberations at 2 o'clock this afternoon. (Whereupon, at 12 o'clock noon the committee recessed, to reconvene at 2 p.m. the same date.)

Mr. CELLER. We will come to order.

Mr. Rutherford, do you want to open up the hearing?

STATEMENT OF HON. J. T. RUTHERFORD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. RUTHERFORD. I will submit my statement here, Mr. Chairman, and briefly will state that primarily I am interested in the western judicial district of Texas, which now has two judges, one in the western area, who is a former colleague of ours, Judge Thomason, and Judge Ben Rice in Waco.

The big difficulty in our area is that if Judge Thomason should hold court from one end of the district to the other he would traverse some 900 miles of Texas.

Our primary purpose here is to obtain more judges to serve the area, plus the fact that the cases are something like 50 percent above the national average in civil cases commenced as well as the entire volume of business in the judicial courts.

I have a statement here as well as a table that I would like to submit for the record.

(The statement of Mr. Rutherford and table referred to follow :)

STATEMENT OF HON. J. T. RUTHERFORD, 16TH DISTRICT, TEXAS, IN BEHALF OF H.R. 2359

I appreciate the opportunity to appear before this committee today to speak in behalf of my bill H.R. 2359, to provide for the appointment of an additional district judge in the western judicial district of Texas.

This district is provided with two judgeships. The Judicial Code of 1911 made provision for one judgeship and the other was authorized by the act of February 26, 1917 (39 Stat. 938). There are six statutory places of holding court: Austin, Del Rio, El Paso, Pecos, San Antonio, and Waco. The rules of court provide for two terms at each of these six places. Chief Judge Ben H. Rice, Jr., resides at Waco and Judge Robert E. Thomason lives in El Paso. The distance between these two cities is almost 650 miles and for this reason Judge Rice handles the business in the eastern half of the district at Austin, San Antonio, and Waco, while Judge Thomason takes care of the cases in the western part at Del Rio, El Paso, and Pecos.

For the last 10 years the number of civil cases commenced per judgeship has exceeded the national average by over 40 percent and the number of private civil cases commenced has been 50 percent greater than the national average. This volume of business for the most part is the result of the workmen's compensation cases. A State statute allows the employee to sue the insurance company directly. On the basis of diversity of citizenship the insurance companies remove many of these cases to the U.S. district court, where they are tried de novo.

In addition to the private cases, land condemnation proceedings and tax suits represent a heavy load. The United States is acquiring land for extensions of many military bases in the area, as well as for major water conservation and power projects. It is not feasible to determine the time or difficulty in disposing of a condemnation case since one case may represent numerous tracts that may be tried separately. Suits filed for the refund of income taxes were more than twice as many as the national average for the fiscal year 1956.

Cases terminated in the district have not kept pace with the increased filings and the result is a backlog more than 50 percent above the average per judgeship for the 86 districts. At the conclusion of my remarks I will submit a table showing the number of total civil and private cases commenced, terminated, and pending at the end of each fiscal year for the last 5 years in the western district of Texas.

The western district of Texas is large in area. For Judge Thomason to hold court in Pecos and Del Rio and return to El Paso, he will travel almost 900 miles. For Judge Rice to cover the eastern part of the district, he must travel more than 300 miles on a round trip. The distance factor adds to the already burdensome load that these two judges are carrying. The number of trials commenced per judgeship has been consistently greater than the national average, with over 50 percent more trials commenced per judgeship in 1956 than the national average.

I know Judge Thomason well personally, and I am acquainted with Judge Rice. I know both of these gentlemen have worked long and hard, but as the attached tables indicate, they simply cannot keep up with casework in spite of their excellent efforts. Judge Thomason, in particular, has long distances to travel. As an example, it is approximately 400 air miles between El Paso and Del Rio, and approximately 200 air miles between El Paso and Pecos.

Many lawyers and people with pending cases have spoken to me of the need of an additional judge for the western judicial district of Texas.

I respectfully ask the committee to give favorable consideration to H.R. 2359 to provide a third U.S. district judge for the western judicial district of Texas.