representation. You are quite correct that there is no black member of the 12 on this committee, but I can assure you that the views of the black community are reflected in every investigation. As I have said, however, we must be sure this is on a national, and not merely a local level, as to Supreme Court nominees at least.

Now, I have not commented how I personally feel on the Carswell nomination. I have refrained from doing that for reasons that have been publicly announced, but I will assure you that black members of the bar practicing before Judge Carswell were interviewed and what they said was expressly conveyed to the other members of the committee by the interviewers.

Senator HART (now presiding). It is easier to ask the questions than to reconstitute the committee or even suggest the kind of standards that it might be possible to develop. If the American Bar Committee on Judicial Standards is to limit its judgment solely to technical competence, I see less need for the direct presence of youth and blacks and nontraditional practitioners on the committee. But if the American Bar's committee is to express a judgment not alone with respect to technical competence, but also as to suitability, appropriateness for the decade, sensitivity, all of which I suppose can be in temperament, but if it gets into that area, isn't the younger lawyer, isn't the black lawyer, isn't the lawyer engaged in what would have once been thought of as offbeat areas of practice more likely to be comfortable with the decision if he sees in the reviewing committee itself faces reflecting his immediate area of concern?

Mr. SEGAL. You said professional competence, Senator. I am sure you meant to include integrity and temperament as well, because they are factors that the committee takes into account.

Senator HART. Yes. I know. All right, integrity. But temperament may or may not include these other items that I am suggesting are of increasing concern on the part of some members of the bar and certainly the general public.

Mr. SEGAL. Well, I think, Senator, they do to one extent. A man may be of a given turn of mind as far as social concepts go. Perhaps Senator Black is the most notable example at the time he rose to the bench. And then one has the very large question of judgment as to whether he can be objective when he is no longer an advocate, when he is no longer a member of the general community, but has perhaps the holiest of all tasks cast upon him to sit in final judgment not only on his fellow man but upon the course of history.

We have no measuring device, we have no instrument we can put at the top of a man's head that says, yes; he will be amenable to the changes of his time, he will be able to apply appropriate standards of decision, he will be able to break with beliefs that he held at a time when he was not called upon to sit impartially in judgment on great issues.

You can only draw on your background and your instincts and your experience in making those judgments. I agree that temperament does involve the question of whether a man can decide issues objectively when he is on the bench or whether biases will control his thinking. I don't think it is a matter of youth, Senator, in making that judgment. I think that judgment is a judgment which requires some background, some experience in judging your fellow members of the bar.

I said ideological matters, sociological matters, are for the President and the Senate. We have no special expertise in that.

A second factor is that not the President, not the Attorney General, not the Senate, not the FBI, can uncover in a year of investigation what a single headline in the newspaper can uncover when it reaches almost every household in America. That is one of the problems of all investigation. So that criticisms of nondiscovery of obscure matters, of happenings a quarter of a century ago, for example, I don't share. I don't think they are easily discoverable.

I think the one man who knows or will be interested in ferreting it out can be reached when the newspaper gets into two-thirds of the households of the community, but you can't get that by talking to 20 or 30 or 80 or 100 or 300 people.

But getting back to your question, the best we can hope to achieve is to make sure that the investigation of any individual reaches every segment of the professional community so that when we report to you, Senator, on the Judiciary Committee, and you say, "Judge Walsh, is there any segment of the bar in that community that you have not explored," he should be able to say," No."

And if you sav, "In your report, have you taken into consideration the views of all of those," he should be able to say, "Yes."

And finally he should say-should you ask him, "Does your report contain reference to all of the views so that each of the members can consider every view," he ought to be able to say, "Yes."

Short of that, the investigation is faulty. I believe that the investigations today do meet the standards.

The point I make is that President Nixon, if he reverses the procedure to what I believe his procedure should be, his action should have as a counterpart the necessary change in the committee's procedure. That I am hopeful will be done in the days immediately ahead.

Senator HART. Well, then, I shan't hold you because I know you have over the years given deep thought to this and you have confirmed. what I have read in the paper, that you and the bar, the American Bar Association, are in the process of reviewing again what may be done.

But isn't it possible that we have come to accept as essential that the committee will be made up of voices speaking for each circuit and we ask the man in the Sixth Circuit, "Please ask the black members and ask the law school deans and ask all of the elements that at least physically are not present on the committee, their opinion." Why is it-is it not possible that you could broaden the committee, retain one per circuit, but instead of the Judiciary Committee having to call the dean at Harvard, have the dean at Harvard on the committee, and instead of having the Sixth Circuit man talk to the Wolverine Bar Association, which is the black bar in Detroit, have a National Bar member on that committee?

Assuming it is desirable that each circuit have its member, why might it not be desirable to have the Association of American Law Schools there?

Mr. SEGAL. Well, I think

Senator HART. In person, rather than having the Sixth Circuit report the view of the dean at Ann Arbor.

Mr. SEGAL. The principal problem there is, as I see it, one of procedures. Talking about judges generally, the cumbersomeness of procedures.

For example, Senator, in the first-in the year of President Kennedy's administration from May 1, 1961, to April 30, 1962, I devoted 2,040 hours to the work of the committee. Now, that is an average of 40 hours a week. If you were to double the number of members on that committee, it would have been impossible to do that job.

I may say to you, Senator, our biggest problem up to now has been where the local bars have insisted under political pressure that a man is qualified and we have had to maintain steadfastly he is not.

In my own State this year the general assembly, the house and senate unanimously, Republicans and Democrats, passed a resolution urging that the Republican leader of the House was qualified when the committee, it was reported, had found him not qualified. That didn't dissuade the committee. We recognized the pressures that were on the members of the general assembly.

Every issue, and with no exception, from 1953 until the present day with the exception of Judge Carswell, there has not been a single case in which the insistence of a local bar was that someone was not qualified whom the committee had found to be qualified. It was always the other way.

Now, what you say, I think, requires a good deal of thought insofar as Supreme Court appointments are concerned. In other words, if we are going to have the kind of spotlight put by the Senate on Supreme Court appointments that it is now doing, and I am not sure you would concede, Senator, that this has not always been so

Senator HART. I agree.

Mr. SEGAL (continuing). Then perhaps we should consider having an advisory group of the type you mentioned. I don't think it would be practical to have them as active members of the committee, but it may well be they should be given some official status, and I will assure you I will present this as one of the subjects of discussion when the committee meets.

We are going to have an all day meeting within the next couple of weeks to review these subjects. And I think what you said should be carefully considered insofar as the Supreme Court goes.

Judge Walsh has indicated, as you know, that he thinks there ought to be changes also, some of them along the lines you have mentioned, others perhaps more extreme than I have mentioned, somewhat more along the lines you have discussed, and I would say in conclusion, first, that I would hope the President, having now had experience with judicial selection in his role as President, might consider whether it wouldn't be wise to have the Attorney General counsel with the American Bar Association prior to nominations.

Failing that, I am sure that large changes are called for in committee procedures which were designed for another method which the President in his wisdom has eliminated, and it is, of course, his determination, whether to reinstate it as we are urging.

In those deliberations the views you have expressed will be given very careful consideration.

Senator HART. Thank you very much, Mr. Segal. Sorry we held you. Mr. SEGAL. Thank you very much.

Senator HART. We are adjourned.

(Thereupon, at 4:50 p.m., the hearing was concluded.)

APPENDIX

Hon. JOSEPH D. TYDINGS,

COVINGTON & BURLING, Washington, D.C., April 13, 1970.

Chairman, Subcommittee on Improvements in Judicial Machinery, U.S. Senate, Washington, D.C.

DEAR SENATOR TYDINGS: For the Committee on the Administration of Justice, I attach a memorandum of our views with respect to certain sections of S. 1506. You will find that we strongly support those provisions which (a) establish a Commission on Judicial Disabilities and Tenure and (b) provide for the selection of Court Executives by each Circuit Council.

I will appreciate it if you will include this statement as a part of the hearings on this important bill.

With kind regards, I am

Cordially yours,

NEWELL W. ELLISON.

[Attachment]

STATEMENT OF NEWELL W. ELLISON, CHAIRMAN, COMMITTEE ON THE

ADMINISTRATION OF JUSTICE

The Committee on the Administration of Justice appreciates this opportunity to present its views on certain provisions of S. 1506 which you have under consideration.

Sections 101 and 501 of the bill provide for the creation of a Commission on Judicial Disabilities and Tenure and the appointment of Court Executives for each Circuit's Judicial Council. Our interest in these sections of the bill arises from the fact that they would apply to the United States Court of Appeals for the District of Columbia Circuit.

Court Executives. With your permission I shall first discuss Section 501 dealing with the need for Court Executives.

Despite the additional judicial manpower that has been added to the court system over the past few years, the courts have continued to fall behind in coping with their caseloads. Delays have grown longer and backlogs have steadily risen. We need additional judges-but we need something more.

Experience has clearly shown that adding judges without anything more does not attack a crucial part of the problem, namely: that the judges and court personnel we now have are grossly under-utilized and are working in a system which does not allow them to perform their duties efficiently.

The Committee which I represent has been studying the courts of the District of Columbia-all five of them-for the last year and a half. And our Management Study has disclosed conclusively the need for centralizing administrative control in someone other than the judges themselves in order to insure that the most efficient and effective use is made of our court resources.

We therefore strongly support Section 501 of the bill and hope it will be approved by your Committee.

A Court Executive will enable the judges to devote more of their time to their main function, namely-judging-and free them from the day-to-day housekeeping job of operating their court.

The administrative job is a very important one and should be undertaken by one qualified by training and experience in the field of management.

The courts covered by this bill have become big business. Their budgets are in the millions and their personnel in the thousands. It is time to recognize this fact and supply the courts with qualified managerial help to run them in a businesslike fashion.

Effective administrative control has not kept pace with the expansion of court budgets, personnel and caseloads over the years. Our study shows that in the

District of Columbia the courts' judicial and non-judicial personnel cannot be efficiently used under present circumstances to meet the responsibilities laid upon them. The judiciary is not being properly utilized and our judges are most keenly aware of this fact since they are the ones most plagued by the system's inefficiencies. The result is that more and more of our best judges are forced to devote increased time and attention to administrative matters in an effort to solve the management problems of the court system-necessarily neglecting to some extent their principal responsibility of disposing of cases that come before them.

This involves no criticism of the judges themselves because they are not appointed as management experts. The non-judicial responsibilities of running a court, and they are enormous, should be left to those better equipped to handle them. It is time we freed our judges from the problems of administration by providing the courts with qualified full-time administrators who could assume these responsibilities and carry them out in a businesslike manner.

The Court Executive would not in any way infringe on the prerogatives of the Judge. He is under the direct control of the Chief Judge and performs those non-judicial duties which are quite separate and distinct from judicial matters. But it will do no good, Mr. Chairman, for Congress just to create the office of Court Executive. We do not want, and do not need, simply another employee. We urge you not only to create Court Executives as proposed in Section 501 but just as urgently to enumerate their duties at the same time as you have done. We have the distinct apprehension that if you create the jobs without enumerating the duties, we may wind up with nothing more than a glorified Chief Clerk under a new name.

It is not wise to leave the important designation of duties to the different courts throughout the country. If the position is as important as we think it is to the orderly and efficient operation of our courts, then it is important enough for Congress to enumerate its duties.

No large organization could long survive if it did not have centralized leadership and control over its operations. Our United States Circuit Courts are large, complex organizations, and urgently need the centralized leadership and control that would be provided by this bill.

To be effective, the Court Executive must be given powers and responsibilities beyond those currently conferred upon any of the heads of the various court offices. He should have complete authority to organize and administer all of the non-judicial activities of the Court under the direction of the Chief Judge and subject to his approval.

If the position is created, we do not believe there will continue to be a need for the position of Clerk of Court as we have known it. Leadership and control responsibilities, which the Clerk of Court has not discharged, would be discharged by the Court Executive and the Clerk's other activities would be delegated to lower level employees. You really do not need a high-salaried employee to handle papers in the Clerk's office.

What is needed is

Someone trained and experienced in modern management techniques; Someone who knows how to plan, organize, direct, control and coordinate; Someone who possesses the leadership qualities needed to transform a generally static, tradition-oriented organization into a dynamic, progressive organization.

Our study has been confined to the United States Court of Appeals for the District of Columbia. Therefore we do not have firsthand knowledge of the situation in other Circuits. But Mr. Ernest Friesen, formerly Director of the Administrative Office of the United States Courts, advises us that the other Circuit Courts suffer from the same problem.

As I have already said, the Court Executive should be given broader duties and responsibilities than are presently assigned to any non-judicial employee. Clerks of Court and other current employees can be considered for appointment to the Court Executive position. However, they should not be automatically selected or excluded by virtue of their present position. Rather, the selection should be based upon whether they possess the requisite managerial and administrative abilities needed to effectively discharge the many important responsibilities. And we earnestly recommend that they be chosen from a l'st submitted by the Director of the Administrative Office of the United States Courts.

The problems assigned the Court Executive are not the kinds that can be solved by quick expedients. Nor are their solutions self-executing. It requires