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The report of the Committee on Increase of Federal Judiciary for the Seventh Circuit; is the committee ready to report? The Chair will recognize Gen. John McNulta, the Chairman of that committee.
Your committee upon obtaining an increase of the number of judges in the seventh judicial circuit respectfully report:
That among other bills upon the subject of an increase of United States Judges three were introduced by our Senators-one by Senator Cullom to provide for an additional Circuit Judge for the seventh circuit--one by Senator Mason to provide for an additional Circuit Judge for the seventh circuit, and also an additional District Judge for the Northern District of Illinois—and a bill by Senator Cullom, to provide for an additional Circuit Judge for each of the sixth, seventh and eighth circuits.
The first two of these bills failed to receive consideration, the third was taken up and acted upon and apparently failed of passage in the form that it was introduced because of the unwillingness of Congress to create more than three Circuit Court Judges-the number required to sit in the United States Circuit Court of Appeals in any one circuit. This bill, or a substitute for it, creating an additional Circuit Court Judge for the sixth judicial circuit did pass and become a law.
Owing to the short session and the press of more important matters growing out of the war with Spain and the restoration of peace, the subject of an increase of judges for this circuit did not receive that consideration to which it was entitled.
The necessity for this increase is quite generally conceded and is fully understood and appreciated by our Senators and Representatives in Congress, who took a lively interest in the matter and would no doubt have secured the required legislation but for the lack of time for its consideration and it is believed will do so at the next session. Yet for the reason given it is not probable that an additional circuit and also an additional District Judge will be obtained for this circuit as asked for, but instead the general opinion seems to be in favor of two additional District Judges for this State.
JUDGE BLODGETT: Before action be taken on this report I wish to make a few suggestions. The act creating the Cir. cuit Court of Appeals provides specifically that no judge who had anything to do with, or tried or took any part in the trial or hearing of a case below shall sit in the Circuit Court of Appeals. The trouble therefore in our system or in the organization of the Circuit Courts is this, that we have in the Circuit Court of Appeals a changing personality all the time. A circuit judge who sits to hear a case at the trial court is disqualified for sitting on the appeal. It may be a district judge who would aid in the hearing of the Circuit Court of Appeals. Now in this circuit three circuit judges can make up the Cir(uit Court of Appeals without calling in a district judge, but in the other circuits nearly all of them seek to supplement the court by calling in a district judge to aid, and if this man has heard any particular case he is disqualified, and some additional district judge has to be called in. Now, I take it, and the conclusion has been made up largely from discussion with the lawyers who are interested in the Federal Courts, that this changing personality in the courts is an objection, and a serious objection to the court as it is organized, and the only remedy I see for it is to take the circuit judges entirely out of the trial courts; abolish the circuit court as a court of original jurisdiction; let all the cases originate in and be heard in the district court, and furnish us with district judges enough to do the business. Then you would have the Circuit Court of Appeals made up of three circuit judges, all of whom would be qualified to act and sit in review of the cases tried by the district judges, and the business of the trial courts would be as well conducted, the cases as well tried by the district judges as they could be by the circuit judges. The Circuit Court of Appeals will never, as I have already said, meet the expectations of the public or be satisfactory to the bar as long as you change the personality. When a lawyer takes an appeal he does not know what judges are to hear it. This objection,
it may be said, applies equally to the Justices of the Supreme Court, who are also made competent to sit in the Circuit Courts of Appeal, but the Justices of the Supreme Court have not the interest in what may be called "log rolling" or figuring to have themselves affirmed in the Supreme Court, and hence their sitting in the lower court would be unobjectionable. No complaint has ever been made, that I have ever heard, of the Justice of the Supreme Court who may have heard a case on the circuit, sitting in review because there are eight other judges against him and he can hardly carry those men, or enough of them, with him to affirm himself, unless he is right. But when the court is made up of only three men, some strong fellow in that court who has tried a case at bar may be able to get one to go with him, and when he ought to get reversed, be affirmed. Hence, it seems to me that it would simplify the system of the Federal Judiciary more to abolish the Circuit Court as a court of first resort as a trial court and let all cases originate in and be tried in the district court and go from there to the Circuit Court of Appeals and from thence to the Supreme Court if they are appealable in that way. (Applause.)
MR. MOSES: I think I can give some information to the Association and to Judge Blodgett upon this subject. At the last session of the American Bar Association which I attended, a bill was framed practically embodying the suggestions of Judge Blodgett, to the effect that all the Circuit Courts of the United States be abolished and that there should be but one Federal Court known as the District Court, with as many branches as necessary in the different localities. In this way the objections mentioned by Judge Blodgett would be obviated and jealousies between circuit and district judges would be done away with. And there should be in every State in the Union but one court. There should be but one court in the State of Illinois and that court should be called the County Court, sitting every day, instead of sitting twice a year in the country. And this bill, Judge Blodgett, has been adopted
after full discussion, and has been referred to a committee of revision and will be reported at the next session of the American Bar Association and no doubt passed.
JUDGE BRODGETT: I had not heard of that.
MR. Moses: It is not yet in Congress, because the final report will be presented next month at the American Bar Association.
JUDGE GROSS: I would like, Mr. President, to have the sense of this Association taken upon this subject. I regard the suggestions made by Judge Blodgett as wise and timely, supplemented as they are by the information that already the American Bar Association has taken action in this matter. I submit that this Association might with perfect propriety on this occasion, if it be so minded, endorse that action and give to it the force and stimulus of the recommendation of this Association. And in making this suggestion let me follow it with another suggestion, that Mr. Moses hold this matter upon his mind, as he has so many other matters, and formulate a resolution and present it to us and let us see what we will do with it. This is simply a suggestion, Mr. President, and I desire to let it rest there.
MR. SHERMAN: I do not think there is any opposition on the part of those who practice in the Federal Court to the suggestions made by Judge Blodgett. There should be but one nisi prius court in the United States in a district, and a court of appeals and clearly the court of appeals should be entirely distinct from the nisi prius court. Ob jection has been made by some that the circuit court judges would get too lazy. Now let me say for the information of the Association that one justice of the Circuit Court of Appeals, one judge, has during the last year written fifty-seven opinions, more than all the Supreme Court Judges in the early history of that court did in five years, and involving probably not as important constitutional questions, clearly
not, but probably involving larger amounts and as important principles of the administration of the law. Now my theory of the function of an appellate court is quite different from that of some gentlemen that I have heard speak upon that subject. Some suppose that the judge should be driven to the top of his speed and write as many opinions as he possibly could do; if possible, get out of him in the course of the year $6,000 worth of opinions. My theory on that is that the less number of opinions an appellate court writes, the less number of cases they consider and decide—that is within a reasonable number—the more valuable their opinions will necessarily be. Judges in our Circuit Court of Appeals here, or in a circuit court or in a district court, do not get a chance to cultivate the grace, or the disgrace of laziness. During the first two years after Judge Seaman was appointed as District Judge in Wisconsin, he spent more time in Chicago than he did in his own district. Judge Bunn did nearly as much in this district. Judge Allen of the Southern District and Judge Baker, have all been called upon and they have discharged the duty which should have been done here by judges furnished for this circuit. It is little less than disgraceful that Congress has thus far neglected to furnish sufficient judicial force so that the causes in the Circuit Court of the United States for this district could be tried, and tried promptly, and I sincerely hope that Gen. McNulta will see that the proper effort is made in the coming Congress to remedy this defect, by having another district judge appointed so that causes may be tried promptly and that the judges may not be over-worked.
GEN. McNULTA: That the question of the jurisdiction of the several courts is one of importance, I concede. I doubt, however, the expediency of mingling the two propositions together. What we first want is judges to do the work; after we get the judges then we will settle the jurisdiction of the several courts. The judges of the district court sit in the circuit and have all the powers of circuit judges within their