this legislation is constitutional. I have serious reservations about such a commission's capacity for fairness and its ability to refrain from exerting improper influence on judges. To me, the duty of a Federal judge is to decide cases and controversies-not to meddle in the business of his colleagues.

So today and Thursday, we will look at the Judicial Conference of the United States and at the circuit councils. We will see how well they have performed. And we will weigh the question of whether judicial control is worth the sacrifice of judicial independence.

To assist the subcommittee in our inquiry, I am pleased to welcome once again Prof. Philip B. Kurland, the subcommittee's chief consultant, and Prof. Ralph K. Winter, Jr., who has served as a special consultant since 1968. I also take special pleasure in welcoming today for the first time to this subcommittee's hearings Prof. Arthur S. Miller of the George Washington University Law Center, who has consented to serve as a special consultant during this study. Professor Miller has been professor of law at George Washington University since 1961. Prior to coming to Washington, Professor Miller was professor of law at Emory University, where he was also a Guggenheim Foundation fellow and a Ford Foundation fellow. Professor Miller is nationally known as an educator, lecturer, and author of numerous articles and books dealing with legal problems. I have had the pleasure of working with Professor Miller on many occasions in the past, when he gave invaluable testimony before the Subcommittee on Constitutional Rights.

I take this occasion to say that this subcommittee owes a debt of the greatest magnitude to those who have served it as consultants. Whatever good this subcommittee has wrought in this very important field of separation of powers is due in large measure to their diligence and to their profound knowledge of the subject.

I should like to insert in the record at this point several sections of the United States Code which deal with the subject matter of these hearings, particularly sections 331, 332, and 333 of title 28.

Also, I should like to insert in the record a copy of S. 1506, which will be a topic of discussion throughout these hearings. (The material referred to is as follows:)

Sec.

TITLE 28 UNITED STATES CODE

CHAPTER 15-CONFERENCES AND COUNCILS

OF JUDGES

331. Judicial Conference of the United States.

332. Judicial councils.

333. Judicial conferences of circuits.

334. Institutes and joint councils on sentencing.

Historical Note

1958 Amendment. Pub. L. 85–752, § 2, Aug. 25, 1958, 72 Stat. 845, added item 334.

§331. Judicial Conference of the United States

The Chief Justice of the United States shall summon annually the chief judge of each judicial circuit, the chief judge of the Court of Claims, the chief judge of the Court of Customs and Patent Appeals, and a district judge

from each judicial circuit to a conference at such time and place in the United States as he may designate. He shall preside at such conference which shall be known as the Judicial Conference of the United States. Special sessions of the conference may be called by the Chief Justice at such times and places as he may designate.

The district judge to be summoned from each judicial circuit shall be chosen by the circuit and district judges of the circuit at the annual judicial conference of the circuit held pursuant to section 333 of this title and shall serve as a member of the conference for three successive years, except that in the year following the enactment of this amended section the judges in the first, fourth, seventh, and tenth circuits shall choose a district judge to serve for one year, the judges in the second, fifth, and eighth circuits shall choose a district judge to serve for two years and the judges in the third, sixth, ninth, and District of Columbia circuits shall choose a district judge to serve for three years.

If the chief judge of any circuit or the district judge chosen by the judges of the circuits is unable to attend, the Chief Justice may summon any other circuit or district judge from such circuit. If the chief judge of the Court of Customs and Patent Appeals is unable to attend, the Chief Justice may summon an associate judge of such court. Every judge summoned shall attend and, unless excused by the Chief Justice, shall remain throughout the sessions of the conference and advise as to the needs of his circuit or court and as to any matters in respect of which the administration of justice in the courts of the United States may be improved.

The conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary, and shall submit suggestions to the various courts, in the interest of uniformity and expedition of business.

The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law.

The Attorney General shall, upon request of the Chief Justice, report to such conference on matters relating to the business of the several courts of the United States, with particular reference to cases to which the United States is a party.

The Chief Justice shall submit to Congress an annual report of the proceedings of the Judicial Conference and its recommendations for legislation.

June 25, 1948, c. 646, 62 Stat. 902; July 9, 1956, c. 517, § 1(d), 70 Stat. 497; Aug. 28, 1957, Pub. L. 85-202, 71 Stat. 476; July 11, 1958, Pub. L. 85-513, 72 Stat. 356; Sept. 19, 1961, Pub.L. 87-253, §§ 1, 2, 75 Stat. 521.

Historical and Revision Notes

Reviser's Note.-Based on Title 28, U.S.C., 1940 ed., § 218 (Sept. 14, 1922, c. 306, § 2, 42 Stat. 838; July 5, 1937, c. 427, 50 Stat. 473).

Provisions as to associate justice acting when Chief Justice is disabled are omitted as unnecessary in view of section 3 of this title giving senior associate justice power to act upon the disability of the Chief Justice.

The provision of section 218 of Title 28, U.S.C., 1940 ed., as to traveling expenses is incorporated in section 456 of this title.

Provision as to time and place for holding conference was omitted as unnecessary since the Chief Justice is vested with discretionary power to designate the time and place under the language retained.

The references to "chief judge" are in harmony with other sections of this title. (See reviser's note under section 136 of this title.)

Provision for stated annual reports by the chief judge of the district was omitted as obsolete and unnecessary in view of sections 332 and 333 of this title.

The last paragraph is new and is inserted to authorize the communication to Congress of information which now reaches that body only because incorporated in the annual report of the Attorney General.

Numerous changes were made in phraseology and arrangement. 80th Congress House Report No. 308.

1961 Amendment.-Pub. L. 87-253 provided for the summoning to the judicial conference of the chief judge of the Court of Customs and Patent Appeals, and if he is unable to attend, for the summoning of an associate judge of such court.

1958 Amendment.-Pub. L. 85-513 inserted paragraph requiring a continuous study of the operation and effect of the general rules of practice and procedure. 1957 Amendment.-Pub. L. 85-202 amended first three paragraphs of section generally by providing for the representation of district judges on the Judicial Conference.

1956 Amendment.-Act of July 9, 1956 inserted paragraph relating to participation of Court of Claims judges.

Legislative History.-For legislative history and purpose of Act July 9, 1956, see 1956 U.S. Code Cong. and Adm.News, p. 3021. See, also, Pub. L. 85-202, 1957 U.S.Code Cong. and Adm. News, p. 1696; Pub. L. 85-513, 1958 U.S.Code Cong. and Adm.News, p. 3023; Pub. L. 87-253, 1961 U.S.Code Cong. and Adm.News, p. 2696.

Cross References

Pretermission of regular term of Court of Appeals, see section 48 of this title. Review by Judicial Conference of the United States of eligibility for annuity, see section 376 (h) of this title.

Judges -24

Library References

C.J.S. Judges & 40 et seq.

§ 332. Judicial councils

The chief judge of each circuit shall call, at least twice in each year and at such places as he may designate, a council of the circuit judges for the circuit, in regular active service, at which he shall preside. Each circuit judge, unless excused by the chief judge, shall attend all sessions of the council. The council shall be known as the Judicial Council of the circuit.

The chief judge shall submit to the council the quarterly reports of the Director of the Administrative Office of the United States Courts. The council shall take such action thereon as may be necessary.

Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect all orders of the judicial council.

June 25, 1948, c. 646, 62 Stat. 902; Nov. 13, 1963, Pub. L. 88-176, § 3, 77 Stat. 331.

Historical and Revision Notes

Reviser's Note.-Based on Title 28, U.S.C., 1940 ed., § 448 (Mar. 3, 1911, c. 231, § 306, as added Aug. 7, 1939, c. 501 § 1, 53 Stat. 1223).

The final sentence of section 448 of Title 28, U.S.C., 1940 ed., excepting from the operation of said section the provisions of existing law as to assignment of district judges outside their districts, was omitted as surplusage, since there is nothing in this section in conflict with section 292 of this title providing for such assignments.

The requirement for attendance of circuit judges, unless excused by the chief judge, was included in conformity with a similar provision of section 331 of this title.

Changes in phraseology were made. 80th Congress House Report No. 308. 1963 Amendment.-Pub.L. 88-176 inserted "regular" preceding "active service" in first paragraph.

Legislative History. For legislative history and purpose of Pub. L. 88-176, see 1983 U.S. Code Cong. and Adm.News, p. 1105.

Judges -24

Library References

C.J.S. Judges § 40 et seq.

Notes of Decisions

1. Generally

Extradition proceeding was "business of the courts" within this section authorizing judicial councils of circuit judges for each circuit to make all necessary orders for effective and expeditious administration of "business of the courts" within its circuit. Jimenez v. Aristeguieta, C.A.Fla.1962, 311 F.2d 547, motion denied 314 F.2d 649, certiorari denied 83 S.Ct. 1302, 373 U.S. 914, 10 L.Ed.2d 415, rehearing denied 83 S.Ct. 1867, 374 U.S. 858, 10 L.Ed.2d 1083.

Where extradition proceeding had been initially heard by district judge, judicial council's order for assignment "to some other judge" of any "unfinished business" of district judge and chief judge's order assigning to himself the extradition proceeding, with result that chief judge would hear evidence of criminality, constituted proper exercise of authority and was not attempt to review action of district judge as extradition magistrate. Id.

§ 333. Judicial conferences of circuits

The chief judge of each circuit shall summon annually the circuit and district judges of the circuit, in active service, to a conference at a time and place that he designates, for the purpose of considering the business of the courts and advising means of improving the administration of justice within such circuit. He shall preside at such conference, which shall be known as the Judicial Conference of the circuit. The judges of the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands shall also be summoned annually to the conferences of their respective circuits.

Every judge summoned shall attend, and unless excused by the chief judge, shall remain throughout the conference.

The court of appeals for each circuit shall provide by its rules for representation and active participation at such conference by members of the bar of such circuit.

June 25, 1948, c. 646, 62 Stat. 903; Dec. 29, 1950, c. 1185, 64 Stat. 1128; Oct. 31, 1951, c. 655, § 38, 65 Stat. 723; July 7, 1958, Pub. L. 85-508, § 12(e), 72 Stat. 348.

Historical and Revision Notes

Reviser's Note.-Based on Title 28, U.S.C., 1940 ed., §§ 449, 450 (Mar. 3, 1911, c. 231, §§ 307, 308, as added Aug. 7, 1939, c. 501, § 1, 53 Stat. 1223). Section consolidates parts of sections 449 and 450 of Title 28, U.S.C., 1940

ed.

Said section 450 contained definitions of "courts" and "continental United States," and directions that sections 444-450 of Title 28, U.S.C., 1940 ed., relating to the administration of United States courts, should apply to the courts of appeals, the United States Courts of Appeals for the District of Columbia and to the several enumerated district courts of the United States, including those in the Territories and Possessions as well as the Court of Claims, Court of Customs and Patent Appeals, and Customs Court. It also provided that the Chief Justice and associate justices of the Court of Appeals for the District of Columbia should have the powers of the senior judge and circuit judges, respectively, of a circuit court of appeals.

The revised section omits as surplusage, the definition of "continental United States." Other provisions of section 450 of Title 28, U.S.C., 1940 ed., referred to were omitted as unnecessary in view of section 604 of this title which provides for the powers and duties of the Director of the Administrative Office of the United States Courts. Remaining provisions of said section 450 are incorporated in said section 604 and section 610 of this title.

The provision as to travel and subsistence which was contained in said section 449 of Title 28, U.S.C., 1940 ed., is incorporated in section 456 of this title. 80th Congress House Report No. 308.

1958 Amendment.—Pub.L. 85-508 eliminated provisions which required the judge of the District Court for the Territory of Alaska to be summoned annually to the conference of his circuit. See section 81A of this title which establishes a United States District Court for the State of Alaska.

1951 Amendment.-Act Oct. 31, 1951 inserted reference to the judges of the District Court of Guam.

1950 Amendment.—Act Dec. 29, 1950, provided for the presence of the judges of the District Courts of Alaska, Canal Zone, and the Virgin Islands at annual conferences within their respective circuits.

Effective Date of 1958 Amendment.—Amendment to Pub.L. 85-508 effective Jan. 3, 1959 upon admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 5, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub.L. 85-508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions.

Legislative History.-For legislative history and purpose of Act Dec. 29, 1950, see 1950 U.S. Code Cong.Service, p. 4300. See, also, Act Oct. 31, 1951. 1951 U.S. Code Cong.Service, p. 1578; Pub.L. 85-508, 1958 U.S. Code Cong. and Adm.News, p. 2933.

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Library References

C.J.S. Judges § 40 et seq.

§ 43. Creation and composition of courts

(a) There shall be in each circuit a court of appeals, which shall be a court of record, known as the United States Court of Appeals for the circuit.

(b) Each court of appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the court.

As amended Nov. 13, 1963, Pub. L. 88-176, § 1(a), 77 Stat. 331.

§132. Creation and composition of district courts

(a) There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district. (b) Each district court shall consist of the district judge or judges for the district in regular active service. Justices or judges designated or assigned shall be competent to sit as judges of the court.

(c) Except as otherwise provided by law, or rule or order of court, the judicial power of a district court with respect to any action, suit or proceeding may be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges.

As amended Nov. 13, 1963, Pub.L, 88-176, § 2, 77 Stat. 331.

§144. Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

As amended May 24, 1949, c. 139, § 65, 63 Stat. 99.

§ 371. Resignation or retirement for age

(a) Any justice or judge of the United States appointed to hold office during good behavior who resigns after attaining the age of seventy years and after serving at least ten years continuously or otherwise, shall during the remainder of his lifetime, continue to receive the salary which he was receiving when he resigned.