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Mr. MARLIN. Mr. Chairman and members of the committee, I was interested in the comment that Mr. Kleindienst made that career Government lawyers could consider as proper areas of advancement, service on the municipal courts of the city.

I thought that was a rather curious comment, because there are the U.S. district court in the District of Columbia and the U.S. court of appeals, which you might suppose would be the more proper areas for the advancement of Government lawyers, instead of into local courts.

Having served as a trial lawyer in the Department of Justice for 4 years myself, I am familiar with the jurisdiction of the Department, which very directly handles matters which have nothing to do with the District of Columbia. In fact, most frequently there is a division of lands, a division of internal security, the Solicitor's General's Office and other divisions of the office in which career lawyers do not have anything to do with the District of Columbia, and I, therefore, think there is an important principle before the committee, and that is whether or not the new Superior Court, which is to be a local court, and the whole thrust of the court reorganization bill was to take jurisdiction away from the Federal courts into a District of Columbia court, whether this court should also be considered to be a ground for advancement for Federal lawyers who have no relation to the city and whose entire legal life has not been occupied with municipal matters. In fact, it has been occupied with matters of great importance and great expertise, but which are not related to the common law or the development of statutory law in any jurisdiction, but only Federal law.

Senator BIBLE. Wouldn't the fact that your Government lawyers had actual courtroom experience, either in front of a jury or in front of a judge, be helpful to them if they might be the successful nominee? Your response, if I understand it correctly, is that you would not appoint any Government lawyers into the judicial positions that are vacant at the present time and are being considered by this committee, because they haven't had actual courtroom experience in the affairs of the metropolitan district. Is that the thrust of what you are saying?

Mr. MARLIN. It is not just the courtroom experience. Obviously trial experience and appearing before juries and judges is a very important ingredient in the making of a good judgment. Appearance as a lawyer is very essential to being a good judge.

I am really talking about the substance of law that they have been occupied with. Someone who has been concerned with complicated tax matters, or matters of internal security, or someone who has worked as I did in the Civil Rights Division of the Department of Justice, that doesn't mean that that experience can be easily translated into municipal law. That is the point I am trying to make, Senator.

Senator BIBLE. Then if I understand you, the reservoir of judicial talent would be limited to those men and women who have actually been in the actual trial work here in the courts of the District of Columbia. Is that what you are saying?

Mr. MARLIN. Yes; in private practice, or the Corporation Counsel, or the District government.

Senator BIBLE. If they were Corporation Counsel, they would certainly have experience.

I wanted to develop that point, because I was interested myself in the responses of Mr. Kleindienst, as to why the Government lawyer with the trial experience had the same background to become a judge as those in private practice, and you heard what he said and responded to that question.

The CHAIRMAN. Thank you. Reverend Phillips, I appreciate your statement and I don't agree with all the content, but I do appreciate the hard work you have done in the District and it has been a privilege to work with you in this committee and the committee will weigh the points you have made.

Thank you very much for taking the time and effort out of a busy schedule to be here with us.

Thank you very much.

Reverend PHILLIPS. Thank you.

The CHAIRMAN. Mr. Herbert Miller, president of the District of Columbia Bar Association, former Assistant Attorney General of the United States, formerly my boss, and a fine lawyer.

We are delighted to welcome you again before this committee and to say that I value our friendship, and I value the contributions you have made to this committee in the past.


Mr. MILLER. Thank you, Mr. Chairman.

I might say I feel much more comfortable in appearing here than my current endeavors elsewhere in the State of Maryland, having had more experience in this than in other matters.

I do have a prepared statement as president of the bar association and I would like, unless the Chair has an objection, to merely submit that for the record, and make a few comments.

The CHAIRMAN. Fine. It will be incorporated in the record in its entirety.

(The prepared statement of Herbert J. Miller, Jr., follows:)


My name is Herbert J. Miller, Jr. I am the President of the Bar Association of the District of Columbia. The Association is composed of 5,000 members, the vast majority of whom are practitioners in the District of Columbia.

I welcome the opportunity to testify this morning concerning the eighteen nominees designated by the President of the United States to serve on our local courts. This is the first time in the history of the District of Columbia that this city will have its own court system with complete criminal and civil jurisdiction. The Bar Association endorses the appointment of the following individuals to the District of Columbia Court of Appeals:

Hubert B. Pair

Gerard D. Reilly
J. Walter Yeagley

The Bar Association endorses the appointment of the following individuals to the District of Columbia Court of General Sessions and to the Superior Court which will come into existence on February 1, 1971:

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The Judicial Selection Committee and the Board of Directors of the Bar Association of the District of Columbia, in making these recommendations, employed the following standards and criteria:

Judicial Temperament

Common Sense


Learning and Skill

Legal Experience

Participation in Community Activities

Age, Health, Habits

Desire to Fulfill the Duties of the Office to Maximum Capacity

Each of the individuals mentioned above were subject to an investigation by both the Judicial Selection Committee and the Board of Directors, and each was considered individually by the Board of Directors.

I would like to bring to the attention of the Committee that eleven of the nominees being considered at this hearing have been recommended to the Attorney General of the United States on August 14, 1970, by this Association. When it became known to the Association that Eugene Hamilton; Nicholas S. Nunzio; John G. Penn; Gerard D. Reilly; George H. Revercomb; Dyer Justice Taylor; and, J. Walter Yeagley had been nominated by the President of the United States, the Board of Directors conducted an individual investigation of the qualifications of these additional nominees, and found them to be equally qualified to serve.

It is the firm position of the Bar Association that local practice is a necessary and desirable qualification for judicial office. The reasons are obvious; awareness of community problems, familiarity with the court system and an ability to perform as a judge without a "breaking in" period. Because of the urgency in staffing the expanded Court of General Sessions, the Association did not insist on this qualification although many of the nominees fulfill this condition. What the Association has sought are candidates who do meet this criterion in addition to those set forth above.

It should be made clear that the Bar Association does not feel that the present screening process employed in selecting nominees to fill judicial vacancies here in the District of Columbia court system is appropriate. As the result of an agreement between the Attorney General and the American Bar Association, all Presidential nominees to fill judicial vacancies in the Federal judiciary are to be screened by the ABA's Committee on the Federal Judiciary. While this system may be desirable when judicial candidates for the U.S. District Courts and the U.S. Court of Appeals throughout the United States are being considered, it is not appropriate when applied to the local Superior Court and the D.C. Court of Appeals, which, according to the D.C. Court Reorganization Act, are purely local in nature.

The Bar Association of the District of Columbia does not seek to be the sole source of nominees for local courts. However, I speak for the vast majority of the membership of the Bar Association when I say that the process I previously outlined ignores the local character of our courts and the opinions and recommendations of the local community. The Bar Association of the District of Columbia, in June, 1969, recommended to this Committee, the establishment of a Judicial Selection Commission. Under the terms of our recommendation, the Commission would be the sole source of recommendations for qualified potential nominees to fill judicial vacancies occurring in our local courts. The Commission itself would be made up of representatives appointed by the President of the United States, the Chief Judges of our local courts and the Mayor-Commissioner of the District of Columbia. Our recommendation included what we considered to be the best possible standards to be applied in the selection of judges. I therefore

urge this Committee to consider the establishment of a Judicial Selection Commission for the District of Columbia. Only in this way can we insure that the local community interest will be fully represented in the judicial selection process. I appreciate the opportunity to appear before you today on behalf of the Bar Association of the District of Columbia.

Mr. MILLER. As to the actual screening and evaluation of these nominees, it was done primarily by the American Bar Association, or a committee thereof.

At the risk of washing a little bar association laundry in public, the District Bar Association, of which I am president, feels strongly that this is a function that should in the future be performed by our association. We have, as the Chair knows, recommended a substantial number of the individuals on this list initially, and recently the board of directors of the bar association considered each and every one of these nominees individually, and recommends that the committee approve the Presidential nomination.

I know how difficult it is, even though I have spent time in the District of Columbia and have practiced in the District of Columbia for many years, to know each and every person who is nominated for a judgeship, but I can assure the Chair that the bar association has looked at the qualifications of these men and feel they are upstanding individuals, they have great legal talent, and would in fact make a substantial contribution to the effective law enforcement and the administration of justice in the courts of the District of Columbia.

I might also add that I share your concern at the unavailability, apparent unavailability, of the facilities that these men must have, if approved, to immediately perform their functions as judges.

I would expect, however, that Chief Judge Harold Greene, who has performed so magnificently as the chairman at the court of general sessions, would be in a position in the near future to obtain the facilities necessary. Therefore, on behalf of the Bar Association of the District of Columbia, I strongly endorse each and every one of the individuals, the nominees, and strongly recommend that the committee approve those nominations.

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

Senator Eagleton?

Senator EAGLETON. Just a couple of questions, Mr. Miller.

Does the District of Columbia Bar Association, of which you are president, adopt either by rule or by custom, or ad hoc practice, the criteria and standards of the American Bar Association with respect to the qualifications of prospective judicial nominees?

Mr. MILLER. I don't think I could adequately answer that, because frankly I do not know well enough what the standards are that the ABA applies. As a matter of fact, the first time I heard the standards was in the letter that the chairman had earlier.

Senator EAGLETON. At least you didn't apply those in this instance, because you didn't know what those were?

Mr. MILLER. The District Bar Association was not asked to conduct the screening and evaluation process. It was decided that the American Bar Association would do that. We, of course, conducted our own.

Senator EAGLETON. Since you have suggested that henceforth in the future this screening process and evaluation process for nominees for these particular positions, the local judiciary of the District, be screened through your association, don't you think it would be help

ful to us and your association and to the public-at-large if we had a better clarification of just what the standards of the American Bar Association are?

I am talking now with respect to the age of nominees, based on the colloquy that took place earlier between Mr. Kleindienst, Chairman Tydings, Senator Bible, and myself.

Mr. MILLER. Of course, if the committee needs further clarification with respect to that issue, the committee should have it.

Senator EAGLETON. You are not saying now that you are acceding to what their standards are or how they apply them?

Mr. MILLER. No, I do not know of my own knowledge what standards the ABA applied, or how they were applied. I am a member of the house of delegates, but I have never been active in the Judicial Selection Committee.

I might say that the District Bar Association has for years had a Judicial Selection Committee of its own and this committee has sought out individual lawyers, whether they are members of our bar association or not, and has in fact made recommendations to the Attorney General for judicial nominees in the District of Columbia, and not to waste your time, but the standards used by that committee are on record with this committee. A letter was submitted to the chairman by John Powell, in which he spelled out what standards are applied by the bar association.

The CHAIRMAN. In this instance, as I understand, however, your committee did not do the actual investigation. It was done by the ABA committee, and your committee approved the ABA committee's conclusions. Is that right?

Mr. MILLER. Well, chronologically that is how it happened, yes, and actually that is how it happened. Merely because the ABA approved did not, obviously, necessarily require that we approve because the Bar Association of the District of Columbia can and did make an independent evaluation.

The CHAIRMAN. Thank you very much, Mr. Miller, for being with us this morning.

Mr. MILLER. May I make one further comment, Mr. Chairman, before I leave?


Mr. MILLER. At the risk of sounding partisan, I want to thank the chairman and this committee for the long and arduous effort they have made to do something in the law enforcement field in the District of Columbia. I, as a citizen, am deeply appreciative.

The CHAIRMAN. Thank you very much.

A letter from the Bar Association of the District of Columbia dated October 5, 1970, will now be placed in the record. (The letter follows:)



Chairman, Senate District Committee,

New Senate Office Building,

Washington, D.C.

Washington, D.C., October 5, 1970.

DEAR SENATOR TYDINGS: On behalf of The Bar Association of the District of Columbia, I am pleased to report to you that our Association endorses the appointment of the following nominees to the D.C. Court of Appeals:

Hubert B. Pair

Gerard D. Reilly

J. Walter Yeagley

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