Chandler v. Judicial Council of the Tenth Circuit

PETITIONER:Chandler
RESPONDENT:Judicial Council of the Tenth Circuit
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 2 MISC
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 398 US 74 (1970)
ARGUED: Dec 10, 1969
DECIDED: Jun 01, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – December 10, 1969 in Chandler v. Judicial Council of the Tenth Circuit

Warren E. Burger:

Chandler against the Judicial Council.

Good morning, Mr. Kenan, you may proceed whenever you’re ready.

Thomas J. Kenan:

Thank you sir, may it please the Court.

Gentlemen, this is a case that’s here on motion for leave to file a petition for a writ of prohibition and/or mandamus in the matter of the Honorable Stephen Chandler, Judge of the Western District of Oklahoma against the Tenth Judicial Council of the United States.

I will briefly state the facts in this matter.

On December 13, 1965, the Judicial Council of the Tenth Circuit entered a — entered an order, held after a secret meeting at which Judge Chandler was not able to be present, and the order effectively stripped Judge Chandler of all of his powers.

He was ordered not to hear any of the cases assigned to him, nor was he to be allowed to hear any further cases that would be filed in his Court.

The other judges of his court were ordered to divide Judge Chan — Judge Chandler’s cases among themselves and to enter into a new order of business whereby none of the future cases filed in the court could be assigned to Judge Chandler.

Potter Stewart:

How many judges are there in that district, Mr. Kenan?

Thomas J. Kenan:

Your Honor, I think there’s three, maybe four — four judges.

There’s also an inactive judge, or there was at the time.

Potter Stewart:

A senior judge?

Thomas J. Kenan:

Yes, sir.

This order was signed by the members of the Judicial Council, not as members of Judicial Council but as circuit judges.

It was filed in the Tenth Circuit Court.

It was filed in the Western District Court and a Deputy Marshal was ordered to serve it on Judge Chandler.

Warren E. Burger:

How do you distinguish — how do you discern the form in which they act?

Thomas J. Kenan:

Well, sir, the order itself, the signators or the judges who signed it beneath their signators, they said Circuit Judge.

This point, Your Honor, I bring up because it does have some bearing upon the jurisdiction of this Court.

It does enter into that argument.

It does have to do with whether or not these judges were entertaining judicial powers or administrative powers.

They were clothing about themselves the powers of the judicial offices, which they held when they signed the order, Circuit Judge, filed at the court and they got a Deputy Marshal to serve it.

Warren E. Burger:

Well, when all the judges — all of the circuit judges of a given circuit assemble and meet to address themselves to any business other than an en banc hearing, are they not acting as a Judicial Council?

Thomas J. Kenan:

I don’t believe they are, Your Honor.

Section 332 of Title 28 provides that a meeting of the Judicial Council shall be called by the Chief Judge at least twice a year.

I’m not convinced that the Chief Judge can’t call a meeting of the circuit judges for other reasons.

If another a judge calls a meeting, is it a proper meeting of the Judicial Council?

According to the statute, only the Chief Judge can call it.

Warren E. Burger:

But some Judicial Councils meet once a month, sometimes twice a month, sometimes three times a month, depending on the nature and the quantity of the administrative problems they have before them.

I’m speaking now of me —

Thomas J. Kenan:

Yes sir.

Warren E. Burger:

— as a counsel, not on a particular case.

Thomas J. Kenan:

Well sir, the statute provides only that they’re required to meet at least twice a year.

They can certainly meet more often.

Warren E. Burger:

But you would not suggest that other meetings were not meetings of the council if they go beyond two meetings.

Thomas J. Kenan:

No sir, I believe that this was a meeting of the Judicial Council.

I’m not questioning that.

It was the Judicial Council which uttered the order.

Warren E. Burger:

Oh, I was confused then by your comment about the signatures that the signed as circuit judges —

Thomas J. Kenan:

Yes, sir.

Warren E. Burger:

But of course, they hold their place on the council only by virtue of their being the circuit judges, is that not true?

Thomas J. Kenan:

Yes sir, that is true.

That is true, Your Honor.

I brought this up only for the jurisdictional problems, which I will come to a bit later.

This meeting effectively stripped Judge Chandler of all of his judicial powers.

There was not a slight semblance of due process at the meeting, he wasn’t allowed to be present.

He didn’t know what the charges were.

He wasn’t allowed to cross-examine anyone, couldn’t have counsel.

The order that was entered spoke in rather strange terms about why his cases were being taken away from him.

It mentioned the effect on the business of Judge Chandler’s Court of his attitude and conduct.

It mentioned that he was a party defendant in both civil and criminal litigation and stated that one civil case was still pending and are — there were also two disqualification proceedings against him.

It stated that after a review of the entire situation that Judge Chandler was either unable or unwilling to discharge efficiently the powers of his office, and that was why all of his cases were taken from him.

Potter Stewart:

Mr. Kenan, I’ve seen the order quoted, excerpts from it quoted and described in these various briefs.

Do we have a copy of the order?

Thomas J. Kenan:

Yes, sir.

It is Exhibit A to the original motion for leave to file that was entered in this case, the first — the first matter filed.

After the — after the handing down of the order, we filed a motion for leave to file for a writ of mandamus in this Court.

We also made application for stay of the Judicial Council’s order.

A few days later, there appeared, Solicitor General Marshall representing, the Judicial Council and he advised this Court that the order of the Judicial Council was intended to be temporary only, pending prompt further proceedings by the Judicial Council.

He stated that a hearing would be held, at which hearing, the Judicial Council would determine what powers to use.

Thomas J. Kenan:

Under three sections — this is very interesting, Your Honors, it was cited not only Section 332, which provides administrative powers we believe for Judicial Councils, but Section 137 which provides a method whereby Judicial Councils can settle disputes among District Judges when they can’t decide on how to assign new cases in their Court.

But Solicitor General Marshall mentioned that the Judicial Council wanted to consider what use of its power should be made under Section 372 (b), which as the members of this Court know a Section that bears upon the mental fitness of a federal judge.

In other words, he was suggesting to this Court that reason existed perhaps for the Judicial Council to certify to the President that Judge Chandler was permanently, mentally disabled.

Solicitor General Marshall stated that the order had been issued only to keep Judge Chandler from filling his office while the conduct of his office was thus in question and he stated that the order was interlocutory.

That pending a full hearing into the fitness of Judge Chandler, and then the Solicitor General said that he had personally examined files in the Tenth Circuit and here in Washington that it was his conviction, conviction of the matter, warranted careful examination, that it was highly desirable to maintain the status quo and that public confidence in the Federal Judiciary would be inevitably impaired if Judge Chandler were to preside over his court while the question of his fitness to serve was under consideration.

Well, we can quite understand why this Court denied the application for stay, based upon this very strong language of the Solicitor General.

We can understand it, we — it happened, anyway, the application for stay was denied.

After that was denied, the Judicial Council then did issue a second order.

In our opinion, this order did not call for the type of hearing that had been represented to you, gentlemen, by the Judicial Council would be held.

Judge Chandler wasn’t ordered to come to any hearing.

He was notified that a hearing would be held and that if he wanted to appear, he might, and that he could present to the hearing such matters as he deemed desirable.

There was no indication of any charges against him.

He wasn’t ordered.

The county was told he could bring counsel if he wanted.

Well, Judge Chandler advised both this Court and the Judicial Council that he would not attend such a hearing, that he challenged their jurisdiction to remove cases from him and upon that, the Judicial Council then decided that it would hold a hearing.

John M. Harlan II:

What the — did the second order purport to do with reference to the first?

Thomas J. Kenan:

Well, Your Honor, the second order merely called for the hearing.

At the time that Judge Chandler stated that he wouldn’t appear at the hearing, then the other District Judges in Judge Chandler’s Court then advised Judge Chandler that the original order had ordered them to re-divide all the cases in the court.

This Court had denied his application for stay.

It appeared that we were in for a long session with respect to this matter.

At that point, the district judges advised Judge Chandler that they ought to do something with respect to complying to the first order of the Judicial Council.

So the judges —

William O. Douglas:

Does the Council undertake to say that certain members of the Court of Appeals shall not sit in certain cases?

Thomas J. Kenan:

No sir, it doesn’t.

William O. Douglas:

Is this running just to the — I know that Judge Chandler is a District Judge.

Thomas J. Kenan:

Well, Your Honor, the Judicial Council is given the authority to examine the reports of the administrator of the U.S. Courts and —

William O. Douglas:

I understand that.

I’m just asking as a matter of practice what is it that the Tenth Circuit done with respect to circuit judges?

Thomas J. Kenan:

Well, as a matter of practice, the Judicial Council is the Tenth Circuit and —

William O. Douglas:

I know, but what have they done as respect to the Circuit?

William O. Douglas:

This is pretty wide-roving power, it seems to me.

I —

Thomas J. Kenan:

Well, Your Honor, I don’t know what they’ve done with respect to the rest of the Circuit.

I honestly don’t, and I just know this one matter.

Potter Stewart:

Section 300, in the last paragraph of Section 332, whether advertently or inadvertently, Congress provided only that district judges shall properly carry into effect all orders of the Judicial Council, it does not mention circuit judges.

Thomas J. Kenan:

That’s correct, sir.

Well, after the District Judges then met to decide upon a new order of business since it appeared that Judge Chandler was going to require some time to settle this matter, Judge Chandler disagreed with the re-division of his standing cases, those already assigned to him among the other judges.

And he did agree however that in order to keep this matter going and not to get into a complete brawl with the members of the District Court who were only trying to carry out the orders of the Judicial Council and were going to let Judge Chandler contest them, he agreed that he wouldn’t hear any cases assigned, any future cases filed in his court, although he did not believe the Judicial Council had power to take those away from him, but he disagreed with respect to reassigning cases already assigned to him.

At that —

William J. Brennan, Jr.:

I gather that the — that District Court doesn’t operate from a master calendar?

Thomas J. Kenan:

The — there is a system whereby the cases are arbitrarily assigned to judges, Your Honor.

William J. Brennan, Jr.:

As they’re filed?

Thomas J. Kenan:

As they’re filed, yes sir, by law.

William J. Brennan, Jr.:

And that’s criminal or civil?

Thomas J. Kenan:

Yes, sir.

After this new division of order was entered into, the Judicial Council then did this next strange thing.

It said well, we now have power under Section 137 to allocate cases in this Court because there’s a disagreement with respect to the division of cases already on file in Judge Chandler’s Court, judge Chandler is disagreeing that these cases can be reassigned.

Therefore — and this was their decision — we’re going to let the present situation stand as to existing cases, but we’re going to re-divide the newly filed cases.

Well, it didn’t make any sense but nevertheless, that’s what happened and they superseded, they said, the old order.

Well, gentlemen, at this point when the first order was superseded, what we’re questioning here today is the first order.

There are other facts in this case that go on, which facts have a bearing upon whether or not this Court should exercise its discretion, which the granting of a writ of mandamus always is, because these further facts bear upon the attitude of the Judicial Council and the true spirit in which this punitive order was entered into.

These facts can be boiled down basically to one thing.

For a couple of years thereafter, the Judicial Council went through an elaborate procedure, designed to create a paper record that they were acting all along to assist Judge Chandler in cleaning up a crowded docket.

They got documents from the administrator of the court bearing upon his case load.

The facts were from the very beginning Judge Chandler’s case load, was a number of cases less than he normally decides in a year.

The facts are that when the first order was issued, there was no mention made of a crowded case load.

This was an afterthought and it was designed by the Judicial Council to try to detain some kind of firm ground upon which to base their assault on Judge Chandler.

Your Honor, we came here and we based the jurisdiction of this case upon the All Writs Act.

There is a very excellent inquiry into the jurisdictional problems of this case that the Solicitor General has in his brief, and also the counsel for the respondent.

These jurisdictional problems boil down basically to a single question.

Thomas J. Kenan:

For instance, both Solicitor General and Mr. Wright do not disagree that the All Writs Act does provide authority for this Court to act.

They disagree only on the constitutional ground, whether or not this case is within the appellate powers of this Court and all that question boils down to one point, was the Judicial Council acting as a lower court or an inferior tribunal rather than an administrative agency in this proceeding?

Solicitor General Griswold contends that it was.

Hugo L. Black:

That it was what?

Thomas J. Kenan:

That it was acting as a Court, as an inferior court.

Hugo L. Black:

Inferior Court?

Thomas J. Kenan:

Yes sir, when it issued this order, stripping Judge Chandler of his powers.

He contends that no matter what their nature, that they were acting as a court would act.

Now, Your Honor, I agree that Congress intended that the Judicial Council be an administrative agency.

I agree entirely and yet, this council is composed of judges who have judicial power and they acted in a way that judges would act, and I contend that they were acting with the judicial powers of their offices.

And I also will say this —

Warren E. Burger:

Would you say the same, Mr. Kenan, with respect to the judges sitting on the Judicial Conference of the United States which is also a statutory body?

Thomas J. Kenan:

Your Honor, I contend that the Judicial Conference could act in a way in which was an exercise of the judicial powers.

For instance, a Judicial Council is given the power to remove a referee in bankruptcy.

Now, this is the exercise of judicial powers.

It’s admitted by Mr. Wright that it’s the exercise of judicial powers.

This is given to the Judicial Council statutorily, this right.

So Congress did give for instance to a Judicial Council at least one specific and explicit instance of the right to exercise judicial powers.

Warren E. Burger:

You meant the Judicial Conference there, didn’t you?

Thomas J. Kenan:

No, I was back on the Judicial Council, Your Honor.

I don’t —

Warren E. Burger:

What is the specific judicial power which has been vested in those terms in the Judicial Council to which you were referring?

The council now as (Voice overlap) —

Thomas J. Kenan:

Yes sir, the Council — the Council by statue of Congress is given the authority when the district judges cannot agree upon the removal of the referee in bankruptcy, to remove the referee in bankruptcy of their Court upon a hearing, and this is provided by Congress.

So it shows that in this one statute that the Congress does believe that a Judicial Council can’t act with the judicial powers that the judges have.

Hugo L. Black:

Where is that in your brief?

Thomas J. Kenan:

Sir?

Hugo L. Black:

Is that cited in your brief, that Section?

Thomas J. Kenan:

Your Honor, that is cited in Mr. Wright’s brief, the Section — the statute — I don’t recall a particular statute —

Hugo L. Black:

Alright.

Thomas J. Kenan:

— at this instant, but it is cited in there.

It’s a footnote in the Solicitor General’s brief.

Your Honor, the question —

Byron R. White:

What makes that a judicial function, the removal of an officer?

Thomas J. Kenan:

Removal of a bankruptcy — of the referee in bankruptcy?

Well, Your Honor, this referee in bankruptcy is acting over cases —

Byron R. White:

I know, but it is removal, why is that a judicial function necessarily?

I suppose the President has the power to remove from office various members of the Executive Branch?

Thomas J. Kenan:

Well, but those are —

Byron R. White:

[Inaudible] and when he does that, he’s performing a judicial function?

Thomas J. Kenan:

No, sir.

He’s performing an executive function when he does that because these lesser officers are exercising part of the executive powers given to the President.

Byron R. White:

Do you think when a judge, a District Judge removes a — removes a probation officer, he’s exercising a judicial function?

Thomas J. Kenan:

If the judicial officer is able to employ discretion in the performance of his duties, which discretion you would ordinarily think are those of a judge, then I would say that judicial power is concerned.

Warren E. Burger:

What about his law clerk, if he dismisses a law clerk or a secretary?

Thomas J. Kenan:

No sir, I wouldn’t think so.

There, I think that’s an administrative assistance to the judge.

He has full power to remove his law clerk —

Warren E. Burger:

How does a referee in bankruptcy get his position in the first place?

Thomas J. Kenan:

By the Court.

Warren E. Burger:

Is that a judicial act when the court appoints him?

Thomas J. Kenan:

Yes, sir.

I think it is.

I think that the court is appointing an officer to perform certain judicial functions.

I think the referee performs judicial functions.

I think it’s a very high honor for — for a lawyer to be appointed to this.

It certainly is in assistance of the judges of the court in their carrying out their judicial functions and I think that when a Judicial Council acts to remove from a judge all of his power to hear and decide cases that now, we have the strongest possible instance when someone is exercising judicial power.

Your Honor, the main thing is the — is this Section 332 which set up Judicial Councils and what it means.

And I want to direct this Court’s attention to I think the most significant part of this case, and that is, what is the meaning of Section 332 and it is our contention that in 1948 when there was a revision of the Judicial Code that there were important changes made that slipped by the Congress in such a manner that congressional intent could not have been involved and that these changes cannot be the law.

The Committee Report in 1948 stated, and it was only eight pages long with a big appendix to — of the reviser’s notes.

Thomas J. Kenan:

The Committee Report said, “The reviser’s notes are akin to the sections of the revision and explain in detail every change made in the past.”

Now, that’s the notice given to the Congress.

The reviser’s notes on Section 332 said, “Changes in phraseology were made,” there were two other remarks, but they don’t bear upon this case.

Well, Your Honor, if you will compare the 1939 statute, which was the original one, and the 1948 statute, and I have these two statutes laid out side by side on page 13 of my brief.

I think that you can see what violence was done to the 1939 statute.

Now, the 1939 statute has cohesion and builds logically from first, the calling of council meetings to second, the submission to the meetings of the administrator of the U.S. Court Reports, next, to the taking of action thereon by the council, and finally, notice to the district judges of their duty to promptly carry out the directions of the Council as to the administration of business of their courts.

Your Honors, in the 1948 revised version, there’s been a lot said about the fact that the word “order” was substituted for the word “directions,” that that’s not the principal change that was made.

The principal change made is that in the 1948 Act, the Judicial Council was given two sources of authority.

In the 1939 Act, it was given a single source of authority.

The 1948 Act in the third paragraph, continues as the 1939 Act did, talks about the quarterly reports of the administrator of the Courts and then says, “The Council shall take such action thereon as may be necessary.”

There is a source of power for Judicial Councils.

Then it breaks a paragraph and it commences with the final paragraph, and it commences with a second source of power, which the 1939 Act didn’t have.

It says, “Each Judicial Council shall make all necessary orders for the effective and expeditious administration of the business of the Courts within its circuit.”

It’s got two statements of authority; the 1939 Act had one and now, the sentence about the judges carrying into effect that directions or orders, I don’t care what you call it, this Section is put at the bottom after the second source of power of Judicial Councils.

Now, there’s been a lot said about the powers of Judicial Councils being just about plenary, and I can see why because when this 1948 revision was made, there was slipped into this statute in the revis — in the revising process, two sources of power for Judicial Councils, and that was not the intent in the 1939 Act.

Warren E. Burger:

Well, do you recall the details of how that sent — last sentence happened to get in there in the legislative history?

I don’t know whether you’ve covered that.

Thomas J. Kenan:

Well, sir, it was a very complicated and extended procedure.

The actual revising of the code; the bar was involved, the judges were involved, the justices were involved, law professors were involved.

Warren E. Burger:

Well, I was speaking of the specific sentence.

Was that, my recollection may be faulty, but my recollection of the legislative history is that the time of the matter was before the Committee of the Judiciary of the Senate, some senators raised the question that this statute, proposed Section 332, had no teeth in it, had no teeth.

And either a senator or a staff member, someone then reached into the 1939 Act and added this modification, which is the last sentence of the 1948 Amendment.

Do you —

Thomas J. Kenan:

Your Honor, my memory may be faulty ,but with all due respect, I do not believe you are correct.

The change that was made was made in the House in the 1948 revision, this was a House Bill.

The particular statement you’re referring to about the Act has not teeth in it occurred in hearings before the Senate in the 1939 enactment.

In 1948, the Act originated in the House, was placed on the consent calendar of the House whereby it goes through automatically because the Committee Report says there really aren’t any substantive changes made in the old law, and Congressmen are given this very slight notice of this Act is intended to change law and the appendix even said in the House Report that the law wasn’t changed —

Warren E. Burger:

Well, whether it’s in the 1939, even though this occurred in the 1939 setting or the 1948 setting, it was in the setting of members of the Senate who have thought the statute had to be strengthened to give bigger authority to the Council.

Is that not correct?

Thomas J. Kenan:

Your Honor, I don’t know if that was the intention of their questioning.

Thomas J. Kenan:

They did ask the question and I don’t recall whether it was Chief Justice Groner or someone who — I don’t believe it was him as a matter of fact — said in their opinion, there were sufficient teeth because if the Judicial Council made a direction that it would be carried out quite naturally and that no further words were needed.

I believe that that is the desolation of the 1939 discussion about were teeth needed.

I think that people may have been concerned at the time whether or not they could put additional teeth in there if it came to a point of taking a judge’s cases away from him.

Well, sir, Your Honor, the — I think the history of the 1939 Act really is a history which shows that what was really intended to be done in 1939 was to set up an administrative procedure for the Courts to take away from the Attorney General the necessity of attending to these details.

They provided the administrator of the U.S. Court, a new office and they tied to the Judicial Council the preparation of these — this data gathering and statistics compiling reports of the administrator of the courts and submitting these to the Councils and the Councils acting thereon, and then issuing directions to the judges who shall carry out the directions, in the words of the statute, as to the administration of the business of their respective courts.

I contend that the 1948 revision, because of the Committee Report, which is the true legislative history of any enactment, because of the reviser’s notes, the changes in phraseology were made; that’s all.

I contend the original intention of 1939 controlled and that the two sources of authority for Judicial Councils to act now don’t really change what the law is because that wasn’t the intention of Congress, Congress didn’t intend to change the law.

Your Honor, I notice that the Judicial Conference in 1961 issued a report entitled “The Powers and Responsibilities of the Judicial Councils.”

This was a very elaborate document.

Someone got Chairman Celler to print it as a House document, and it’s a fine and elaborate defense of the Judicial Councils.

In fact, it even appears to me as its an attempt to take care of any weaknesses in the authority of Judicial Councils.

This report immediately focuses on the Ninth — the first thing it does is talk about the 1948 revision and particularly, the change of word of “directions” to “orders.”

Now, that’s strengthening word but that isn’t a significant thing.

Nevertheless, the Judicial Conference says, “The changes are one of form and emphasis rather than substance.”

No change in substance has occurred.

That was the conclusion of the Judicial Conference in 1961.

It’s important that that document makes no mention of the fact that the 1948 statute carries two sources of powers for the Judicial Council whereby the 1939 Act only carried one.

I submit the — there’s been no change in the — any intention of Congress.

Your Honor, I think that — I think that there’s another issue involved in this case, and that is that taking all the cases from a judge, all the cases, is tantamount to impeachment and I think there’s a very serious question here.

The Constitution gave the impeachment powers to the House and to the Senate.

The Senate shall have the sole power to impeach this — I mean the House — the Senate shall have the sole power to try all impeachments.

I think the history of the Constitution shows that there was no intention to provide any other means for removing a federal judge from the bench.

Federal judges were given their offices during good behavior and yet the federalist in its number 78 and 79, devotes itself to proving how important judicial independence is to the rights and liberties of the people, and how the Constitution secures that.

It talks about then about the impeachment powers of the House and Senate and says, “This is the only provision on the point which is consistent with the necessary independence of the judicial carrier.”

Potter Stewart:

Now, that — your argument is made upon the premise that Judicial Council has taken all the cases away from him.

Thomas J. Kenan:

They did initially, yes sir.

Potter Stewart:

Well, they did initially, but that was superseded.

Thomas J. Kenan:

Well —

Potter Stewart:

Well, am I incorrect in my understanding of that?

Thomas J. Kenan:

They did supersede it, but then they kept him from hearing any cases later filed in his Court and furthermore, they pressured him into all of this, Your Honor, that they’ve been acting against him ever since the first of (Voice Overlap).

Potter Stewart:

I understand your argument, all those arguments, but am I incorrect in my understanding that their action taking all the cases away from him was superseded?

Thomas J. Kenan:

Yes, sir.

Potter Stewart:

I’m incorrect in that, am I?

Thomas J. Kenan:

Yes, sir — you are correct, yes sir.

Potter Stewart:

I’m right in that understanding?

Thomas J. Kenan:

Yes, sir.

Potter Stewart:

So then, any argument based upon the premise that there’s an outstanding order taking all the cases away from him is based upon incorrect premise, am I correct, right?

Thomas J. Kenan:

Your Honor, the order has been superseded because of the continuation of the Council to act and because of the importance to the judiciary of whether they can do this.

Since the Judicial Council merely only has to supersede any order when challenged, we think that it is within the discretion of this Court to issue mandamus to the Judicial Council, to order them not to do this anymore and to cease any vestiges of its action against Judge Chandler otherwise, this question can never be litigated, so it meant some importance to the judiciary.

John M. Harlan II:

Now, we come to Mr. Justice Stewart’s question, what is the exact situation of Judge Chandler now?

Is he being assigned cases?

Thomas J. Kenan:

His exact situation, Your Honor, is that he has the remnants of four or five cases that had been assigned to him before this matter arose, that he has the remnants of those still in his office.

He has heard the rest of the cases that had been assigned to him.

He and the other judges of his Court have agreed that no further cases will be assigned to him under the circumstances of this matter being before this Court.

Byron R. White:

But that’s backed up by an order of the Judicial Council because the time he agreed to that, he disagreed with the reassignment of cases that he already had.

Thomas J. Kenan:

He disagreed.

Byron R. White:

And the Judicial Council then entered an order, didn’t it, saying that he can keep his old cases?

Thomas J. Kenan:

Yes, sir.

Byron R. White:

But that he can’t have any new ones?

Thomas J. Kenan:

That’s correct.

Byron R. White:

Well, is that order still outstanding?

Thomas J. Kenan:

That order was in effect until several months ago when the Judicial Council advised the members — the other judges of Judge Chandler’s Court and him that if they wish to enter into a new order for the division of business, they might do so.

The judges considered it and stated that under the circumstances, they will allow the existing order to continue.

Byron R. White:

Well, let’s assume that Judge Chandler said, “I want to be assigned my full quota of the cases” and the other two judges disagreed and said the present division should continue, then there would be a disagreement.

Thomas J. Kenan:

Yes.

Byron R. White:

And let’s assume then that the Council, the Judicial Council entered an order, saying no new cases.

Would you say that was beyond their power?

Thomas J. Kenan:

For him to — yes sir, I would it was beyond their power.

Byron R. White:

On the same grounds that you’re using now?

Thomas J. Kenan:

Well, Your Honor, I don’t believe that the Judicial Council can — cannot — can make such an order as to take away all the cases of the —

Byron R. White:

Well, it purported to.

Thomas J. Kenan:

It purported to, yes sir, and we challenge that decision before this Court.

Byron R. White:

I don’t know why you — I don’t know why you think the — you think you have to argue about the old order when there’s a — when the superseded order — I mean the order superseding the old order is in accordance with your approach just to suspect as the old one.

Thomas J. Kenan:

Oh!

I certainly do, Your Honor.

Judge — the — any disagreement in Judge Chandler’s Court was forced upon the judges by the Judicial Council.

They questioned his fit — they came before this Court and said, “Well, we might have to act under 372 (b).

He may be mentally disabled” and yet, they turned right around thereafter and say, “Well, it’s alright for him to hear all the cases assigned to him.”

This whole thing, there is one cohesive thing.

This has been a struggle between the Judicial Council and Judge Chandler, and has continued down to this moment.

And when the Judicial Council offered to the members of Judge Chandler’s Court the ability finally to enter into a new order dividing the business of their Court without interference of the Judicial Council, the judges of this Court said, “Under the circumstances, the present order will stand.”

The present order still stands, but is agreeable to the members of his Court under the circumstances.

Potter Stewart:

Now, is it your contention that what you call the present order, which was promulgated under Section 137, is not authorized by Section 137, or is it your position that if authorized by 137, then Section 137 is unconstitutional as applied?

Thomas J. Kenan:

It is not my contention that Section 137 is unconstitutional.

I think it’s quite constitutional, Your Honor.

I do believe, however, that the congressional intent behind 137 was that the Judicial Council can divide the cases of a District Court in the event of a genuine disagreement of the judges of that Court as to the manner of dividing the cases.

This is not a genuine disagreement, this is one that the Judicial Council created.

It created the disagreement.

I don’t think that that’s —

Potter Stewart:

Well, let’s assume — let’s assume a genuine — a genuine disagreement among the District Judges.

Would you agree or disagree with the power of the Judicial Council to make such an order as was made here, that is that no new cases shall be assigned to Judge A and all new cases shall be assigned and divided among Judges B, C, and D?

Thomas J. Kenan:

I would agree, Your Honor that’s perfectly fine.

Potter Stewart:

If Section 137 does authorize —

Thomas J. Kenan:

Yes, sir.

Potter Stewart:

— the Council will do it?

Thomas J. Kenan:

Yes, sir.

Potter Stewart:

And that that’s a constitutional power?

Thomas J. Kenan:

Yes, sir.

I agree.

Byron R. White:

Do you say that – I thought awhile ago, you said that the Judicial Council could not have ordered saying that a judge could not have any new cases?

Thomas J. Kenan:

Your Honor, I said —

Byron R. White:

That would be a — and you say that one — and you say that Section 137 did not authorize what the Judicial Council did in this case by saying no to new cases?

Thomas J. Kenan:

Well, Your Honor —

Byron R. White:

You assume that 137 does authorize the second order of the Council, I assume that you would say it’s unconstitutional.

Thomas J. Kenan:

Your Honor, the Section 137 certainly superficially authorizes the second order of the Judicial Council because the judges were disagreeing.

Byron R. White:

Alright, assume that it does.

Is it constitutional or the — the two District Judges say who declared, “We don’t like the way you’re deciding cases.

We don’t think you ought any more to be assigned the cases” and then, the third judge says, “Well, I think I ought to have my quota of the cases.”

Then, it goes to the Council and the Council says, “Well, you can’t have any more cases.

We’ll bring you to a new case.”

Now, assuming 137 authorizes that, you nevertheless say its constitutional?

Thomas J. Kenan:

No, I would say — I would say, Your Honor, that that’s alright.

That’s the type of disagreement that the — that Section 137 is —

Byron R. White:

I know, I know, but what about the constitutionality of Section 137 if so construed –?

Thomas J. Kenan:

You mean with respect to the Judicial Council removing the ability of a judge to hear any cases thereafter?

Byron R. White:

Well, as soon as he heard had lot of cases he isn’t going to be hearing them?

Thomas J. Kenan:

Then they removed from his office.

Potter Stewart:

Well, that — when that point’s raised — reached, you might have a different case, but that point has not yet been reached in this case.

Thomas J. Kenan:

Well, effectively —

Potter Stewart:

Is that correct?

Thomas J. Kenan:

He just has the remnants of a few cases around.

Potter Stewart:

Yes.

Hugo L. Black:

Well, I — I want to understand what you are saying.

Are you saying that the Judicial Council has constitutional authority to tell a federal District Judge appointed for life that he can’t try any more cases?

Thomas J. Kenan:

Your Honor, that is just exactly what I am saying the Judicial Council cannot do.

Hugo L. Black:

Under the Constitution, not under the statute?

Thomas J. Kenan:

First of all, the statute —

Hugo L. Black:

I’m talking about, do you say that they can do that under the Constitution?

Thomas J. Kenan:

No, sir, they cannot do that.

Hugo L. Black:

Why not?

Thomas J. Kenan:

Because it — is tantamount to impeachment.

Warren E. Burger:

Let’s back that up a little bit, Mr. Kenan.

Suppose you have a judge who has not decided any of his cases for five years and he’s holding these cases, and this is an extreme case.

Now, I’m suggesting this hypothesis and not your case here.

Five years has gone by and he hasn’t decided any of his cases, and the litigants are clamoring for action and the Council — the other judges then on division, first under Section 137 decide that he gets no more new cases until he gets his old business taken cared of.

Now, I understood your responses previously were, that that is a lawful power vested in the courts.

Thomas J. Kenan:

Yes, sir.

Warren E. Burger:

And you — do you suggest that’s a judicial power or an administrative power?

Thomas J. Kenan:

I suggest that is a judicial power, Your Honor.

Warren E. Burger:

But they can do it under the Constitution?

Thomas J. Kenan:

Yes, sir, yes, sir.

I think that what is — what is involved there is — is a legitimate determination that a judge is overworked under the circumstances.

He has a crowded docket and he should refrain temporarily in taking on new cases, but there, we have the facts supporting that, Your Honor.

In a case at bar, I contend we don’t have the facts supporting it and without the factual basis for it, then that makes the difference between constitutionality and unconstitutionality.

Your hypothetical is quite constitutional until the judge catches up.

Hugo L. Black:

I had rather thought that the judicial duty of a judge was to try lots of cases?

Thomas J. Kenan:

Yes, sir.

Hugo L. Black:

So where he’s in a trial of a lawsuit, in that administrative action that you were talking about, which you call judicial and which I would call administrative?

Thomas J. Kenan:

Well, Your Honor, I just believe that — that taking cases away from a judge is a judicial action.

It certainly is —

Hugo L. Black:

Why is it a judicial action?

Are they trying the case?

Thomas J. Kenan:

Well, Your Honor, I don’t know.

To tell you the truth —

Hugo L. Black:

Well, we know —

Thomas J. Kenan:

— we may be —

Hugo L. Black:

— they’re not trying the case loads, don’t you?

Thomas J. Kenan:

Well, it — it may be we should draw a fine line here, that with respect to future cases, it’s an administrative decision because the judge’s powers have not yet been invoked.

But with respect to cases already assigned to the judge that are moving through the judicial process upon which hearings have been held, matters are ready for final determination, then they pluck a case away from a judge involves the judicial process.

Warren E. Burger:

Does it involve — does it meet the standards of case or controversy under the Constitution, this action?

Thomas J. Kenan:

Yes, sir, it does.

Hugo L. Black:

How does it?

Thomas J. Kenan:

Judge Chandler is contesting the right of the Judicial Council to deny him the right to participate in the judicial process.

He had over a hundred cases already assigned to him, some were moving towards final judgment.

He was ordered to retire from those cases.

The appellate powers of the Court were involved, and Judge Chandler has contested the right of this body to take him out of those cases.

There is your controversy.

Potter Stewart:

Do you concede, Mr. Kenan, that if this was administrative action rather than judicial action by the Judicial Council of the circuit that this Court is entirely without jurisdiction?

Thomas J. Kenan:

Your Honor, I will concede that, but I want to make a careful point here.

In my opinion, the Congress intended to give to the Judicial Councils in this type of matter only administrative powers.

I believe that the Judicial Council, which also has some judicial powers, exceeded its powers and assumed judicial powers.

It is a court and I believe that it should be confined to the proper exercise of its powers —

Hugo L. Black:

What did you say?

Thomas J. Kenan:

— but it was exercised —

Hugo L. Black:

What did you say, is a court?

Thomas J. Kenan:

It — the members of the Council are members of the court.

Hugo L. Black:

The members of the Council are judges.

Thomas J. Kenan:

Yes, sir, that’s what I mean.

Hugo L. Black:

Do you say that the members are, as a group, constitute a court?

Thomas J. Kenan:

No, sir.

No, sir, I didn’t.

I didn’t mean to imply that, Your Honor.

I said that members of the Council are members of a Court and when they act with the full cloak of their office around them, sign their orders, Circuit Judge, file them in the Court records, get marshals to serve them, remove a judge from cases, they’re acting as judges.

They’re involved in the judicial process.

They should be confined to the rightful exercise of their — of their duties.

Warren E. Burger:

Mr. Shipley.

Carl L. Shipley:

Mr. Chief Justice, and may it please the Court.

In view of the lineup in which presentations will be made in our time situation, I would like to anticipate some of the argument that the Solicitor General has included in his brief and some of the arguments which are presented by Professor Wright in his brief in this case.

I think that in considering the matter, the Court necessarily must bear in mind the long history involving good behavior and the impeachment Sections of the Federal Constitution and major Section 332 of the statute and the action of the Judicial Council in this specific case against that long history.

A part of these two briefs to which I refer address themselves to that problem, to the history and we all know that from the time that John Randolph in 1787 made his original resolutions respecting a national judiciary in the Continental Congress.

Carl L. Shipley:

And when Mr. Dickinson moved that the good behavior provision should be modified to follow the British pattern that where a — and address by the Congress and the Senate to the President might result in the removal of a federal judge, that this was rejected in favor of the independence of the Federal Judiciary.

We’d recall that Thomas Jefferson of course strongly supported the idea of total independence, except for impeachment and then, a few years later, we find that he was criticizing the impeachment procedures as not being adequate.

And against that background, we have to look at what’s happened in this specific case.

It can only be characterized as outrageous.

There is a chief judge at federal district court who served with honor, with honesty, with efficiency for 26 years, who’s been chief judge for 8 years.

We know from public documents that are a matter of public record in which in our brief, we’ve asked this Court to take judicial notice of and which it properly can take judicial notice of — and which it should take judicial notice of that there’s been a long friction in terms of jurisdiction between what the Tenth Judicial Circuit thought it could do honestly, I suppose, in terms of Section 332 and Section 137, Section 372, perhaps Section 371 of Title 28.

And this — a friction has manifested itself ultimately in the final order of the Judicial Council which was not its first order against this judge.

In the Solicitor General’s brief, there are references to the Occidental Petroleum case and to the Texaco case that referred to the Judicial Council’s order, not by name, but simply saying that the judge has been involved in criminal and civil litigation which has had some impact that speak of his attitude and his conduct and the efficiency of the Court without any factual showing as to how these relate in any manner to the difficulties any federal judge has over many years in dealing with complicated cases and complicated litigants.

The first question which concerns me against this historical background is the — the threshold question, as the Solicitor General calls it, of whether this Court has jurisdiction, and which some of the justices have raised.

Our position is that the Court does have jurisdiction under Section 1651 of Title 28, that being the All Writs Act, which incorporates as we understand it and as we understand, the Solicitor General understands it.

It incorporates the old Sections 13 and 14 of the original Judiciary Act of 1789.

And although Judge McGruder and I guess the Josephson case perhaps it suggested that there had been some change by reason of the revision of these older sections into the present Section 1651, the All Writs Act.

We agree with the Solicitor General that this Court has jurisdiction by reason of that Act.

A second point I think I would touch on briefly is that in our brief, we suggested that the Court had inherent power.

And we also mentioned that it would have power under the due process proceed — provisions of the Constitution to deal with the matter of this extraordinary significance, in this context, in this historical context, and in — and then the practical immediate context because here, these are live judges operating a very important circuit of where we’ve had a long running situation that’s resulted in an interference by somebody with the operation of that Court.

Our position is the Tenth Judicial Council has unconstitutionally not impeached the judge and removed the judge from the office, but they’ve removed the office from the judge in a kind of reverse English procedure which certainly Congress could not possibly have intended because it would be unconstitutional in our judgment on the face.

The provisions of the Federal Constitution relating to this matter are so explicit in setting up a special court in the Senate that requires a two-thirds vote where everybody’s on oath and it names who the chief justice and providing officers shall be, and exactly what the procedure shall be in the judicial proceeding to convict somebody.

And all of these things we think come within the type of problem, which is contemplated, can be reached under Section 1651 under the extraordinary writs.

These are the kind of extraordinary circumstances, the actual Judicial Council here that — that energize and bring the Section 1651 into play.

Now, the inherent powers, we didn’t just make up the term.

This Tenth Judicial Council and at least three of the cases cited in Solicitor General’s brief, and I say the Solicitor General’s brief does not touch on this.

It makes reference to the fact they never heard of this Court suggesting it had inherent powers.

But in the Ritter case cited in the Solicitor General’s brief and the Texaco Case and the Occidental Petroleum Case, all three, the court there the Tenth Circuit said, “We’re exercising our power under Section 1651 or our inherent appellate jurisdiction.”

They didn’t care which, and they specifically stated it in all three cases, and that’s how they acted to — to issue extraordinary writs against Judge Chandler in these specific cases, which lie at the base of the existing order which we challenge.

Now, the second problem that seems to me that we’re concerned with is the Solicitor General, and putting aside Professor Wright’s position, that this Court has no jurisdiction, we follow the Solicitor General on that.

We think it does, for the reasons he addresses himself to and the reasons I have set forth.

The second problem is whether or not, and as I understand the Solicitor General’s brief, he says, “Either the case is moot or Judge Chandler is estopped from being here because he has agreed to the present division of business in his Court.”

On the question of agreement, we have cited in our brief that this was a kind of a — this was not the kind of a — of an agreement that can lead to estoppel, just as it was not the kind of disagreement that would energize Section 137 of Title 28, that is the — it would energize or activate the statutory authority whereby the Tenth Judicial Council could divide the business of the Court.

And on that point, let me say I would not agree that an exercise of Section 137 so extreme that it deprived the judge of all his cases was a constitutional exercise of that authority.

I think 137 has to be measured against what they’re trying to do, and it cannot be used to deprive a judge of his office any more than Section 332 can.

Carl L. Shipley:

It can be used when it’s activated properly by a genuine and bona fide disagreement to divide the business of the Court so we can get on with the judicial business of the nation.

Now, with respect to whether or not that first order, the order we challenge, was moot, I simply call the Court’s attention to the Grant case we cite and to this Court’s more recent case in the American Phosphate Exporters case, which was decided last November which addresses itself to this problem of mootness and I just have a — just a word —

Warren E. Burger:

Mr. Shipley — Mr. Shipley before you go on with that, could I ask you one question?

Carl L. Shipley:

Yes, sir.

Warren E. Burger:

You have now addressed yourself to the possibility that certain actions under 1 — Section 137 might be lawful in the sense that they’re authorized by the statute and they’re authorized by the Constitution, I take it.

If they are to get on with the business of the court, but that in this case, you then raise a question of whether that was the good faith purpose.

Are there any findings?

Has there been any determination by anyone that we could review to determine whether they were in good faith or in bad faith?

How would —

Carl L. Shipley:

The Court —

Warren E. Burger:

How would this Court review that issue, your claim?

Carl L. Shipley:

I think the Court simply has to look at the record before it.

This matter came before this Court on the Tenth Judicial Council’s original order of December 13, 1965 where they said, and I quote directly from the order, “In the past four years, the Judicial Council at many meetings has discussed and considered the business of the United States District Court for the Western District of Oklahoma and has done so with particular regard to the effect thereon of the attitude and conduct.”

So these are not words in any statute.

They made them up, and they could make up a lot more and any Judicial Council could at this Court authorize this kind of action.

The attitude and conduct of Judge Chandler, who as Chief Judge of the district, is primarily responsible for the administration of such business.

During that period, Judge Chandler has been a party defendant in both civil and criminal litigation.

One civil case is still pending —

Warren E. Burger:

This recital comes from what the Council said, does it?

Carl L. Shipley:

This is the first order which we challenge and which we say is not moot, and we rely on the American Export case which points out that the mere fact that somebody takes subsequent curative action doesn’t remove the question of whether or not —

Warren E. Burger:

I’m still at a loss as to just how or where there is something we could review that would shed any light on the presence or absence of good faith.

Carl L. Shipley:

Well, I think if you’ll look at the order itself under Section 332 of the original order, which is not moot when you look at the cases, and which simply stated in terms that the judge was literally, his office was taken away from him then and there, and his cases were to be reassigned.

Section 137 had not been energized.

They had no authority under Section 137.

There was no disagreement as to the assignment of the work.

There’s no showing there was a backlog.

There was no showing the court wasn’t operating efficiently.

As a matter of fact, the statistics from the office — the administrative office showed just the opposite.

He was doing his work and everybody else was doing theirs.

There wasn’t the slightest question of the efficiency of that court.

Carl L. Shipley:

The question was just what they said, the attitude and conduct of the judge.

They plainly didn’t like it.

There was no objection from the Bar Association, no objection from litigants, no objection from the lawyers in the town, no objection from anybody, except the Tenth Judicial Council.

Hugo L. Black:

Suppose there had been, you concede that the Council of judges would have had right to call Judge Chandler before them and try him to see whether or not he was tending to his business efficiently?

Carl L. Shipley:

No, sir.

They would have no such authority under the federal Constitution.

I doubt that Congress would have the authority to give any such jurisdictional authority to anybody.

There’s a lot of discussion overall these many years and pending bills in Congress, there’d been dozens and hundreds of them.

Hugo L. Black:

Are you conceding that the Court has — the Court of Appeals has such an inherent authority?

Carl L. Shipley:

No, only the Tenth Circuit says it has it.

It says they have inherent appellate (Voice Overlap) —

Hugo L. Black:

Are you conceding that even this Court would have such an inherent authority to test the conduct of federal judges (Voice Overlap)?

Carl L. Shipley:

No, sir.

I think the United States itself through the Solicitor General has weapons available, writ of quo warranto.

It could follow some of its own suggestions.

It could challenge any public officer who wasn’t doing his duty in a certain way but it — I think the Constitution sets up a special court to deal with judges and their tenure and just as the President has four years, a judge is appointed for good behavior.

And when that question of good behavior is to be resolved, the Congress itself must do it in a special court provided in the Constitution with a two-thirds vote which no pardon can issue under the Constitution.

The President can’t pardon the person and he’s only removed from his office and if there’s a crime or something else involved, then he can be subsequently subjected to double jeopardy, let us say, and prosecuted again.

Hugo L. Black:

Suppose the Council — suppose the Council issued an order and he refused to obey it, do you agree then that you could be — anything done to him, or do you agree with what Mr. Vanderbilt and Judge Groner said in the hearing that that would be perfectly just cause of a remedy and method of impeachment as provided by the Constitution?

Carl L. Shipley:

Well, I think impeachment would merely —

Hugo L. Black:

You don’t believe that there’s any other way to try it, except that?

Carl L. Shipley:

No, sir and the record of impeachments in the — in the history of our country show that federal judges have been impeached for drunkenness and convicted.

They have been impeached for corruption.

There haven’t been many because this — these aren’t the type of men that are appointed to the federal judiciary, but the weapon is there and can be used and the procedures are very adequate to serve so important purpose.

May I ask the clerk what the white light means?

Am I out of time or am I within some minutes of being out of time?

Hugo L. Black:

You have five minutes.

Warren E. Burger:

You have five minutes —

Carl L. Shipley:

And the red light, I’ll be out of time, because Mr. — my colleague ran over so badly there, I don’t know just where we are.

I’ll continue for the five minutes.

Warren E. Burger:

You have — you have — you have just one minute left, Mr. Shipley.

Carl L. Shipley:

Of the five minutes?

Warren E. Burger:

Well now it’s up — over the five, yes.

The remainder is reserved for a rebuttal I take it, by Mr. Kenan.

Carl L. Shipley:

Well, I think we’ve run out of our time here and I do have some points I want to address myself, too, and I want to know when the time was up for our side in the matter.

If the Court please, a very — another very important question which has come up is — the Solicitor General I’m sure will address himself to is whether or not Judge Chandler has agreed to the present division of business.

And that by this agreement, he’s — although the Solicitor General doesn’t knew that he use the term that he’s estopped, whether or not by this agreement, it makes the case moot or removes any colors for this Court to get into what the Solicitor General calls the delicate question, Constitutional questions involved in Section 332.

We’ve pointed out in our brief that Judge Chandler’s agreement was not a bona fide agreement in the sense that the law would contemplate it that it should be to a estopping from complaining about something to which he had agreed.

His agreement was simply, he put right in the letter that he was signing under protest to avoid creating a disagreement and that he would expect to address himself to the constitutionality of the action of the Tenth Judicial Council, as outlined in our brief.

I see that my time has come out, and I’ll just close on saying this, that I — we agree with Congressman Celler and other scholars who have said that good behavior, attitude, conduct in these matters are not just issue.

They’re not questions that can be tried in any place except in the Senate of the United States acting as a Court of impeachment in accordance with the Constitution.

And therefore, we would say this Court, in order to clarify the matter, not to avoid what’s the delicate problem but to solve what’s been 150 years of a complicated problem should speak forthrightly and completely and totally so that the federal judges will know, the Judicial Councils will know exactly where their authority begins and ends under Section 137 and under Section 332, because if this Court says it doesn’t have jurisdiction and steps away from this case, it will compound what is a very serious situation which will continue in all the Judicial Circuits.

Some of them may run wild.

We don’t know what will happen, but certainly, these are human beings with the same personality frailties that have given rise to this case and brought all of us here today.

Thank you.

Warren E. Burger:

Thank you, Mr. Shipley.

Mr. Wright.

Charles Alan Wright:

Mr. Chief Justice, if the Court please in my submission, the part of this case was in the question that Mr. Justice Stewart put to Mr. Kenan when he said, “Would you agree that if the action of the Judicial Council was administrative in nature that this Court is entirely without jurisdiction to review the matter?”

And Mr. Kenan answered that question in the affirmative, an answer that I think is compelled by a line of authority going back to Marbury v. Madison, that unless the proceeding that is brought here is a judicial action by an inferior tribunal, but then this Court is being asked to exercise original jurisdiction and that it may do only in cases to which states were parties or ambassadors or consuls are involved.

Mr. Kenan having agreed with the basic premise then suggested that in this particular instance, the Judicial Council acted in a judicial fashion, an argument that I must confess I have some difficulty in following.

His view as I understand it is that Congress intended to create an administrative agency called the Judicial Council.

I agree entirely.

It seems that legislative history is clear, that literature is all in one direction on this that no one, so far as prior to the Solicitor General’s brief in this case, has ever suggested that a Judicial Council is vested with any part of the judicial power of the United States.

That it has always been understood to be merely an administrative agency.

Justices Black and Douglas when this case was here before referred to it as a governmental agency with limited administrative power.

Now, I agree entirely with this characterization of the Judicial Council.

William O. Douglas:

But they — an agency can produce a case or controversy?

Charles Alan Wright:

Oh, yes, sir.

William O. Douglas:

And I suppose that there’d be no case or controversy more vital in the life of a District Judge in a proceeding to — against him to toss him out of office.

Charles Alan Wright:

But it would — it would not be a case or controversy subject to review in this Court, Mr. Justice Douglas.

William J. Brennan, Jr.:

Where would it be subject to?

Charles Alan Wright:

Administrative agencies are subject for review under special statutory provisions or non-statutory review under 1361 in the District Court.

William J. Brennan, Jr.:

And in this instance, it would be the latter, I gather?

Charles Alan Wright:

In my view, an action would lie in the District Court under Section 1361, yes sir.

William O. Douglas:

So you used — I read your brief differently.

Perhaps I read it too fast, but you now say that there is a case or controversy but it’s in the wrong court?

Charles Alan Wright:

I think the term case or controversy may be used in two different sentences.

William O. Douglas:

I’m just using it — in the Article III sense of the Constitution.

Charles Alan Wright:

Yes sir.

Undoubtedly, the proceeding between Judge Chandler and the Judicial Council, what we are arguing this morning is a case or controversy, though I submit that it is a case or controversy that this Court can’t hear because it’s not within your original jurisdiction.

In my submission, what the Judicial Council did, whether the relevant order be that of December 13, 1965 or as I think February 4, 1966 was not a case or controversy, that it bore none of the earmarks of a judicial determination, that as you’ve suggested, Mr. Justice Douglas, an administrative action may lead to a case or controversy.

Someone may be dissatisfied with what an administrator has done, and then challenge that.

But the appropriate place to challenge that is not in the first instance, the Supreme Court of the United States.

Hugo L. Black:

Suppose this had gone against the judge in the Circuit Court of Appeals?

Would he have had to go to the District Court to try to assert his right?

Charles Alan Wright:

If the Judicial Council has power over a judge of the Court of Appeals, a question —

Hugo L. Black:

What if it has inherent power, well, I suppose it has.

Charles Alan Wright:

I —

Hugo L. Black:

I don’t believe though you, Mr. Wright?

Charles Alan Wright:

I’m not relying on any inherent power, Justice Black.

The Judicial Council in my view has the powers that Congress has given it by statute and none other.

Hugo L. Black:

Suppose there was a statute because I (Inaudible) Court of Appeals, and they had removed it because the Court of Appeals judge the council has, would he have to go to the District Court to assert his rights?

Charles Alan Wright:

It seems to me that his remedy, if any, would be in the District Court, yes sir.

Potter Stewart:

I suppose that would be true by the member of this Court.

If some administrative action were taken against him that he didn’t like, if this Court — not just because he happened to be a member of this Court, it doesn’t change the basic jurisdiction of the Courts of the United States, does it?

Charles Alan Wright:

That is precisely my submission, Justice Stewart.

Hugo L. Black:

Well, let’s suppose it was about his right to try cases, would he then have to go to the District Court?

Charles Alan Wright:

I think that it would have two remedies, Justice Black.

He could either go to the District Court or he — if he believed the order were improper to refuse to obey it and the matter would then have to be tried by the Senate sitting as the Court of Impeachment.

Hugo L. Black:

What’s the impeachment provision of the Constitution for it?

Hugo L. Black:

What purpose would it serve?

Charles Alan Wright:

I believe —

Hugo L. Black:

Appointed judges barred of his right to act as a judge.

Charles Alan Wright:

I submit that —

Hugo L. Black:

He can’t rely on a provision of the Constitution whereby he can automatically be removed by impeachment.

Removal has taken away the right to try cases.

Charles Alan Wright:

I respectfully disagree, sir.

Hugo L. Black:

Oh, that’s not it.

Charles Alan Wright:

This Court in Booth versus United States suggested that taking away the right to try cases is not removal so long as the office and the salary continue that the — the taking away of the right to try cases is not barred by the Constitution, it is dictum (Voice Overlap) —

Hugo L. Black:

You mean this Court has held where it was a point to be decided in a case?

Charles Alan Wright:

No, it was dictum by Justice Roberts in 291 U.S, but the position that we’ve take of course is that this Court has no occasion in this proceeding to decide whether impeachment is, as some people believe or as not as others believe, the only way that action can be taken against a federal judge.

We think that first, you lack jurisdiction to hear the case altogether, that the petitioner has misconceived the proper forum in which to seek a remedy.

And second, we believe that if this Court had jurisdiction but on the merits it could not now reach the Court — the question of whether or not the order of December 13th was an attempt to remove Judge Chandler, whether it was a proper order that this Court does not issue advisory opinions about things that have long since gone out of existence.

That the order is now in effect to those of February 4, 1966 and September, 1967 in which the Judicial Council has provided that Judge Chandler may hear the cases that Judge Chandler certified that he wanted to hear.

Under the order of the Judicial Council, anytime the judges of the western district agree on a new division, that will go into effect immediately.

If they disagree, they have only to disagree and evoke the statutory power of the Judicial Council and it then resolves the disagreement.

The one time there was a disagreement, it resolved to disagreement in the direction that Judge Chandler had asked for rather then the direction the other judges had asked for.

Byron R. White:

Well, Professor, what would you say if there was a disagreement and there was a Council order saying that a judge should first clean up all of his cases before he takes any more?

That order goes into effect and he does clean up his cases and then he wants a change in the order.

The other District Judges don’t want any change in the order.

So there’s a disagreement and the Tenth — and the Council then says, “We will have the order stand, no more cases.”

Is that within the reach of 137?

Charles Alan Wright:

I submit that it is clearly within the statutory power granted to the Judicial Council.

A question could then arise whether that particular form of exercise of the power of the Judicial Council is constitutional.

Byron R. White:

Yes, but what about that?

I know you don’t think that question’s here because there’s no jurisdiction, but —

Charles Alan Wright:

Well, I don’t think that question is here because that’s not this order, Justice White.

That is a hypothetical case that I’ve — I think it would be amidst the difficulty.

Byron R. White:

Do you think it’s no different — the question isn’t here because he still has five, the remnants of five cases?

Charles Alan Wright:

And if he wants more cases, he has only to (Voice Overlap),

Byron R. White:

And we don’t know — we don’t really know that, do you?

Charles Alan Wright:

We — no, we don’t know it.

We don’t know it the other way.

Warren E. Burger:

That’s why — that’s why you take the position that the case isn’t here, that case isn’t here?

Charles Alan Wright:

Yes, Mr. Chief Justice.

Byron R. White:

Well, yes but the — the Judicial Council has got some authority to enter an order upon — upon a dispute, but what it knows, as well as anybody else knows, when the judge has tried these cases or has only one or two left, is it — is it empowered to leave its order in effect or should it change it?

Is it qualified to just sit there and say well, if the judges want to — to leave this order in effect, that they may?

Charles Alan Wright:

I suggest that the Judicial Council has shown no inclination to do — to take — to further course of conduct, Justice White that you suggest.

The Judicial Council on its own initiative, noting that Judge Chandler had at that time only 12 cases left, suggested to the judges in the western district that they make a new division and the judges reported back and said, “No, the current division is agreeable to us.”

Byron R. White:

And so, the judicial said, “Well, we’ll just leave our order in effect,” even though this means that Judge Chandler never gets another case?

Charles Alan Wright:

They leave the order in effect until the judges decide that they — that they want to change the division of business.

Warren E. Burger:

Was that a division —

Hugo L. Black:

What if someone disagrees with you as I do?

I think the question is here but you say it’s not here, in your judgment, is the action of the Council constitutional?

Charles Alan Wright:

I have no doubt, Mr. Justice Black, that the present orders of the Council are justified by the Constitution that they —

Hugo L. Black:

Are what?

Charles Alan Wright:

Are justified by the Constitution that they (Voice Overlap) —

Hugo L. Black:

I’m talking about suppose you are wrong about what’s here as I think you are, and maybe I don’t know whether any others think so or not, but I certainly do, is that — was that act of the Council constitutional?

Charles Alan Wright:

Given its overtly interlocutory nature, I would say yes.

I would have serious doubt if the Council had purported to say, “Judge X, you may never again hear a case,” but when the Council, as it represented to the Court through its — through the Solicitor General said that this was intended only to be an interlocutory until we could give a proper hearing to the matter, I think that that temporary power may constitutionally be exercised.

Hugo L. Black:

Do you think they could temporarily strip the judge of his power to try cases under the Constitution?

Charles Alan Wright:

Yes, sir.

Byron R. White:

And what about the original order of the Council then, you would think there was some question about that?

Charles Alan Wright:

Oh, I would think that if that had purported to be a permanent order, there would be the gravest question about it on procedural grounds alone without even reaching the substance.

I would have great difficulty (Voice Overlap) —

Byron R. White:

Well, there weren’t — there wasn’t any expiration date on it, wasn’t it?

Charles Alan Wright:

It said until further order, and the Council then represented to this Court that it intended to dispose of the matter promptly and I believe that we have to accept what the Council has said at its face value.

I think there are even some circumstances in which constitutionally, a Judicial Council or someone other than the Senate may tell a judge that he is not to hear any cases at all in the future.

I think that when there is a certification under Section 372 (b) and a new judge is appointed, the judge who is found to be physically and mentally disabled under the statute becomes junior in seniority, but it would be unbelievable that a judge who has been found mentally disabled to act as a judge then be free to hear cases, and I can’t conceive that that is what the statute contemplates or that is the practice, or that is what the Constitution would require under those circumstances.

But —

Hugo L. Black:

You mean that although the Constitution provides a way to remove judges, you think it’s because of the necessity, might have somebody judgment prior he could be removed without impeachment.

Charles Alan Wright:

Yes, sir.

Warren E. Burger:

That’s what you say?

Charles Alan Wright:

But —

Warren E. Burger:

But could not deprive of the prerequisites of office in the form of his compensation.

Charles Alan Wright:

That is right.

The title judge cannot be taken away.

His compensation cannot be taken away.

Hugo L. Black:

I think the only way he’s granted independence is by getting his compensation?

Do you think that’s all our Constitution means about the independence of judges?

Charles Alan Wright:

I think our Constitution means a great deal more than that about the independence of judges, Mr. Justice Black, but I think the judicial independence is a — is a quality that goes far beyond the very limited issues that are here at stake.

I think judicial independence means nobody is to tell a judge how he’s to decide a case, that he’s not to be answerable except to an appellate Court for his views of the law.

Judicial independence means this and much else, but I do not think that judicial independence means that a person who has been found by a Judicial Council and by the President of the United States to be mentally unable to function as a judge be permitted to go ahead and function as a judge.

Hugo L. Black:

You mean that the President of United States in your judgment has the power on our Constitution to determine whether a judge is mentally able to try his cases?

Is that what you’re saying?

Charles Alan Wright:

I’m saying exactly that, yes, sir.

Hugo L. Black:

I think I understand you now.

[Laughter]

Potter Stewart:

It’s exactly what the statute provides, isn’t it?

Charles Alan Wright:

It’s precisely what the statute provides and again, the Constitution —

Potter Stewart:

Not this statute, but you were talking about (Voice overlap) —

Charles Alan Wright:

No, this statute I have to say has no relevance to this case.

Potter Stewart:

Right.

Warren E. Burger:

The legislative history behind that statute indicates that Congress concluded that there should be means of relieving the public and the litigants from a disabled judge short of impeachment but without taking the office of judge or the salary away from him.

Charles Alan Wright:

Exactly, Mr. Chief Justice.

Potter Stewart:

But I suppose the Constitution did an addition to providing for an independent judiciary also provides for good many other rather important things and one of them is the right of litigants to get due process of law, and presumably you can’t get that from a mentally incompetent or physically incompetent judge.

Charles Alan Wright:

Exactly.

Hugo L. Black:

But do you think it was negligent enough to leave it to be determined by the President of the United States, a political officer to decide whether judges are able to hold their jobs?

Charles Alan Wright:

I believe that the Constitution left it to the Congress to create procedures for these exigencies that the Congress did sol many years ago, and this Court, again by way of dictum in Booth expressly spoke of that procedure as being a constitutional.

Hugo L. Black:

Was that decided?

Charles Alan Wright:

That was by way of dictum, Mr. Justice Black.

Hugo L. Black:

It was not decided?

Charles Alan Wright:

It was not decided.

Warren E. Burger:

But that statute is not involved in this case?

Charles Alan Wright:

That statute was not involved in this case nor with respect in our view are many of the matters that we have been discussing here at oral argument.

What is involved in this case is the original jurisdiction of this Court.

What is involved in this case is an order resolving a disagreement among the district judges as to how that this should be divided.

And in my view, it does not help us to speak hypothetically of what the sit — the situation might be if some judge were to be told that he may not hear any cases.

That is not here, we have no judge who is in that position and I cannot think that it is the function of this Court to imagine unlikely hypothetical cases that may arise in the future and to pronounce judgment upon them before they come up.

The —

Hugo L. Black:

Well, do you mean to say this case is not here at this time?

Charles Alan Wright:

This case is here, but the case of a judge who is — who is not allowed to hear any case is not before us at this time.

Judge Chandler has cases pending on his docket.

Hugo L. Black:

Which have been allotted, the only ones he’d been left with.

Charles Alan Wright:

That is correct.

Hugo L. Black:

But he’s a judge appointed for life whom the litigants can’t depend on to try their cases because other judges who are no more lifetime judges than he, have decided that it shouldn’t take them without any authority, express authority of law, unless it could be drawn through vague provisions of the administrative —

Charles Alan Wright:

The litigants whose cases are pending before Judge Chandler will have their cases tried by Judge Chandler.

Warren E. Burger:

And has — do I understand that as to the division of the cases after that, he has agreed with the other judges of his court, is that correct or not?

Charles Alan Wright:

Twice.

Warren E. Burger:

I beg your pardon?

Charles Alan Wright:

Twice, on January 25, 1966 and again on September 1967.

Now, I —

Hugo L. Black:

That’s someone might call a shotgun wedding — [Laughter]

Charles Alan Wright:

In fairness to Judge Chandler, Mr. Chief Justice, I think it must be said that on the January 25th agreement, he noted that it was done under protest and that he did not want to waive any of this rights to challenge the then still existing order of December 13th.

The September 1967 agreement said the present division is agreeable under the circumstances.

John M. Harlan II:

Can I ask you this question, Mr. Wright?

Assuming that on the time about Judge Chandler, Chandler runs out of business because he sensed that there is a disagreement among the district judges as to whether any more cases should be assigned him.

Is there anything to show in this record that the Circuit Council would not step in and break that lock?

Charles Alan Wright:

There is nothing whatever in the record to show that the Council would not step in.

There is nothing whatever in the record to show that the Council would not give Judge Chandler whatever division he thought equitable.

Charles Alan Wright:

It would be pure speculation to suppose anything to the contrary.

Hugo L. Black:

Why do you say that when they meant without his being there and (Inaudible) How can you say that?

I don’t understand.

Charles Alan Wright:

I find it difficult, Justice Black, to understand how the fact that they met without any precedent on December 13th says anything as to what they will do in the future, in the particular hypothesis put to me by Justice Harlan.

Hugo L. Black:

There has been a statement for many years in which many people give some confidence, that coming events cast their shadows before them.

Warren E. Burger:

We can all just deal with that case when it reaches here, of course, can’t we, Professor?

Charles Alan Wright:

Well, that — that would be precise (Voice Overlap) —

Hugo L. Black:

But suppose someone — some of us think it’s here now.

Charles Alan Wright:

Well, obviously some of you do, Justice Black.

I could only respectfully disagree.

The jurisdictional question seems to me from the greatest importance, and this I think is a little different, Justice Black, from the matter that you and I just disagreed on.

You think that the December 13th order is before us — before you.

I would disagree on that.

Hugo L. Black:

You think what?

Charles Alan Wright:

You think that the order of December 13, 1965 is properly here.

As counsel, I disagree but there is a different question, and that is whether anything is properly here, even if the December 13th order was still in full force and effect, and it’s an order of the constitutionality of which I think I can safely predict your view on at least that would not — that would not create original jurisdiction in this Court.

Original jurisdiction does not arise out of necessity.

It does not arise because something has happened that may be gravely unconstitutional.

Original jurisdiction is carefully defined by the Constitution and the — the best known case that this Court has ever decided so that you simply can’t go beyond them.

The doctrine in drawing the line between original and appellate jurisdiction has been laid down many times.

It bears such famous names as Marshall Story, Tony Brandeis, and that is that this Court can act only if an inferior tribunal has acted judicially, and I submit that whatever the Judicial Council did, right or wrong, the Judicial Council is not a Court and what its action is it’s not judicial.

It was administrative action.

It may have been, as my friends on this side of the table think and its someone outside of the bench think a very terrible thing that the Council did.

But administrative agencies on occasion did do terrible things, and that fact of itself is not enough to create original jurisdiction in this Court, nor does it permit this Court to act immediately on the theory that it might come here sometime and therefore, it’s potentially within our appellate jurisdiction.

The appellate jurisdiction of this Court — its potential appellate jurisdiction does not begin to exist until the case has reached some judicial tribunal of the United States.

Now, I’m aware of course of the concurring opinion of Mr. Justice Douglas in Hirota v. MacArthur suggesting a somewhat different view on that and with respect, I disagree.

Hugo L. Black:

But you indicated a moment ago that the names of the judges — famous judge whose names were involved had passed on this question?

In what cases did they pass on the question before us?

Charles Alan Wright:

Marbury v. Madison, United States —

Hugo L. Black:

Do you think that’s on —

Charles Alan Wright:

— v. Ferreira, Tuten v. United States — yes, I think that they passed on exactly that I think —

Hugo L. Black:

The question we have before us?

Charles Alan Wright:

Uh-huh.

Byron R. White:

The jurisdictional question?

Charles Alan Wright:

The jurisdictional question.

John M. Harlan II:

Could I ask you this question?

As I understand (Inaudible) disagreements between you and the Solicitor General you’re in disagreement on the basic question as to whether there’s a judicial function, is that right?

Charles Alan Wright:

That it — on whether or not this is a — an attempt to invoke a regional jurisdiction or appellate jurisdiction, yes.

John M. Harlan II:

Right, and therefore from your point of view, that one in your position is acceptable that would — you’d never get the questions and still be all (Inaudible)?

Charles Alan Wright:

Exactly.

John M. Harlan II:

On the other hand, I understand you’re in agreement with some of the topics in doubt that if the Solicitor General’s position is accepted on the basic question as to whether this is administrative or judicial function you are in some doubt that you have been sharing his view that you always act would reach it.

Charles Alan Wright:

That’s exactly right, Justice Harlan.

And then, when we go beyond that, I’m in agreement entirely with the Solicitor General — (Voice Overlap) on everything going to the merits of the case.

John M. Harlan II:

That’s way on the record I understand.

Charles Alan Wright:

Thank you.

Warren E. Burger:

Thank you, Professor Wright.

Mr. Solicitor General?

Erwin N. Griswold:

May it please the Court.

First, I would like to correct a possible misunderstanding which results from the way this case was listed in the hearing list by the clerk’s office.

It is there said that the Solicitor General will appear as a friend of the Court for the respondent.

I do not understand that I am appearing for the respondent or for the petitioner and that was the first question.

William O. Douglas:

I was going to ask you that.

Erwin N. Griswold:

Well, but simply as a friend of the Court, I have tried with the aid of my former associate, Philip Lacovara to make a complete on examination of the problems here as we could in an effort to be as helpful to the Court as possible.

Warren E. Burger:

You are then what we sometimes — or as sometimes referred to as a true friend of the Court.

Erwin N. Griswold:

A true — [Laughter] A true friend of the Court.

The first question to which I will address myself is this Court’s jurisdiction of this matter.

It is plain of course that the Court has jurisdiction only as an exercise of appellate jurisdiction, that this case is here as an original matter.

It is obvious that neither the United States nor a state nor a foreign minister or ambassador is a party and there is no basis for original jurisdiction.

I may say that when I started consideration of this case, I had the tentative view that there was no jurisdiction here, that this was not an exercise of appellate jurisdiction.

That indeed, the argument presented by Professor Wright was the sound analysis.

Erwin N. Griswold:

I learned my federal jurisdiction from Professor Frankfurter and I tend to take a rather strict view of these matters and also to regard them as important.

But after my associate, who I regret has now left the government service, Mr. Lacovara, presented me an elaborate memorandum on the matter and I discussed it with him at some length.

I came to the conclusion that that was probably wrong.

I would like to make it plain that I do not regard this as by any means a matter of black and white.

It will be clearer after this Court has decided it and it is not.

But it does not help it seems to me to say that this is administrative action.

That is an example of the tyranny of words because if this is a judicial administration, it may present a situation which is different than anything with which the Court has previously dealt.

It is of course clear and accepted in many fields that it is a Constitution we are dealing with and that the understanding of the Constitution grows and develops with the development of problems, and the approach is to problems.

It was probably true at an earlier time that we had a very small conception of judicial administration of the function and responsibility of courts in seeing to it that their business is soundly and effectively handled, in addition to the process of the actual decision of the case in court.

Over the past generation, there’s been a great expansion in the awareness of the importance of the function of the judicial administration, and we have people like Chief Justice Hughes and Chief Justice Groner and Judge Parker and Arthur Vanderbilt and others who were largely responsible for the development of the statutory provisions which now exist, establishing not only the Judicial Conference of the United States which is not involved here in any way whatever, but also the Judicial Councils.

Now, the Judicial Council, it is perfectly plain or simply the Courts of Appeals sitting en banc.

John M. Harlan II:

Then —

Erwin N. Griswold:

If —

John M. Harlan II:

— and what — in their one exception there, the District Judge (Inaudible)

Erwin N. Griswold:

There are no District Judges sitting on the Judicial Councils.

John M. Harlan II:

So they’re not —

Erwin N. Griswold:

The Judicial Councils consist of simply the judges of the Courts of Appeals sitting en banc.

John M. Harlan II:

I understand.

Erwin N. Griswold:

No more, no less.

Warren E. Burger:

Does any statute relating to the Judicial Councils in their formation refer to them as sitting en banc in those terms?

Erwin N. Griswold:

No, it says — the statute says that the — the chief judge of each circuit, this is Section 332 of Title 28, 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.

No reference to district judges, no exceptions from the judges of the Court of Appeals, except that it applies only to those in regular active service.

Warren E. Burger:

Do you — you think the statue permits the Council to meet in executive private session on public not open to anyone?

Erwin N. Griswold:

I do, sir.

I see no reason why —

Warren E. Burger:

Can they — are you then suggesting they can carry out a judicial function in other than a public hearing?

Erwin N. Griswold:

They can — they can certainly engage in discussion as this Court engages in conferences which are not public sessions.

Whether they can take actions which are valid in the form of orders in other than a public session, I do not know.

I know that orders issued from this Court which do not come forth in a public session, I don’t see why that is an earmark of judicial action.

Warren E. Burger:

But those processes are always preceded by an opportunity of argument in briefing and great many other things, are they not?

Erwin N. Griswold:

Not always argument, Mr. Chief Justice —

Warren E. Burger:

Well, argument in writing —

Erwin N. Griswold:

Sometimes, not much opportunity for briefing in terms of stay orders and things of that kind which are done by the court.

I would like to suggest that in Section 137 of Title 28, the statute now reads that — this is the last paragraph of Section 137 — if the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose, it now says the Judicial Council of the Circuit shall make the necessary orders.

It would be only a verbal difference if it said the Court of Appeals sitting en banc shall make the necessary orders.

And similarly in Section 332, the last paragraph which is at the top of page 4 of my brief, it says, “Each Judicial Council shall make all necessary orders.”

And there again, if it said each Court of appeal sitting en banc shall make all necessary orders, it would be exactly what we have here and I find it difficult to see that what is a verbal difference only, having no effect upon either of the persons who participate or the capacity in which they participate, should make this into something which is non-judicial.

Warren E. Burger:

Mr. Solicitor General, how is an en banc court convened?

How does it come into being under the statute?

Erwin N. Griswold:

The statue provides as to this that the chief judge shall convene —

Warren E. Burger:

I’m speaking of a court en banc in the judicial sense, five votes, is it not?

Erwin N. Griswold:

I’m sorry, Mr. Chief Justice, I do not —

Warren E. Burger:

Well, if you will assume I’m correct in stating that this statute requires that it takes five votes to convene a court en banc —

Erwin N. Griswold:

Well, I — I’m —

Warren E. Burger:

Or — if it’s a nine-man court, the majority of the court —

Erwin N. Griswold:

Maybe (Voice overlap) —

Warren E. Burger:

Majority of the Court of Appeals —

Erwin N. Griswold:

Maybe a majority of the court, it couldn’t take five votes in the First Circuit because there are only three there.

Warren E. Burger:

Takes the majority of the court to convene an en banc Court of Appeals, does it not?

Erwin N. Griswold:

I do not know, Mr. Chief Justice —

Warren E. Burger:

Well, that is the statute, Mr. Solicitor General.

Erwin N. Griswold:

— whether the chief judge has any authority with respect to convening the Court en banc or not.

Warren E. Burger:

But he does have authority to convene on his own initiative the Council, does he not.

Erwin N. Griswold:

And I could simply provide him the statute that the Court sitting en banc could be convened by the chief judge for this purpose.

It still seems to me that what the court is doing — what the Judicial Council is doing here is exercising what has come to be recognized not only as judicial power but as an important judicial responsibility to see that the judicial business of the circuit is effectively and expeditiously administered.

This was not an accident.

It was not an arbitrary action.

It grew out of such experiences as those which Chief Justice Taft lived through in the 1920s when there was no such power.

And I just happened on a letter written by Chief Justice Taft in the 1920s in Alpheus Mason’s biography of Taft.

Erwin N. Griswold:

He wrote a letter to a district judge who had not disposed of a case which had been pending before him for four years and he felt that he had to put into that letter the following, and think of this from an ex-president and chief justice of the United States.

“Of course, I write this letter with no assumption that I may exercise direct authority over you in the discharge of your duties, but as head of the federal judiciary, I feel I do have to appeal to you in its interest and in the interest of the public whom it is created to serve to end this indefinite situation.”

And the objective, the intended objective was to provide a judicial authority within the judiciary, nobody outside, no executive authority, no legislative authority, but the courts were to run their own house or to do it without interference and their representative said that, “Give us the chance.

Give us that power and we will take care of it.”

Now, it is also clear that they contemplated that it would be — that it would very rarely be necessary to do anything to enforce it.

These are high level people and if it became necessary for the Judicial Council to issue an order, the odds were very strong that it would be complied with however reluctantly.

But the statute does expressly give the Judicial Council, which I repeat is the Court of Appeals sitting en banc by another name.

It does give them expressly authority to make those orders and it provides that it shall be the duty of the District Judges to carry them out.

Such an order was issued in this case.

I have no doubt that the constitutional requirement of case or controversy is met here.

Chief Judge Chandler sought leave to file a petition for a writ of mandamus or prohibition to review the validity of that order.

And though as I’ve said, it is not fully clear, it does seem to me that that was a judicial order entered by a judicial body in carrying out judicial responsibility and that the review of that order before this Court is an exercise of appellate and not original jurisdiction.

Now, I would turn to the question on the merits where I do agree with Professor Wright’s position in representation of the Tenth Circuit Judicial Council.

In the first place, the only paper before this Court, the only pleading before this Court is Judge Chandler’s petition or motion for leave to file and petition for a writ or mandamus, which was filed in January 1966.

And in that petition, he prays that a writ or prohibition or a mandamus be issued to restrain the respondent from exceeding its jurisdictional power.

In ordering that until its further order, the petitioner shall take no action whatsoever in any case or proceeding now or hereafter pending in the United States District Court for the Western District of Oklahoma and that order no longer exists.

It was completely superseded on February 4, 1966 in the document which is marked F in the return or response, which has been filed by the Tenth Circuit Judicial Conference.

And as far as the record is concerned, since that date, there has been no dispute, no controversy between the Tenth Circuit Judicial Council and Judge Chandler.

Now, I think that that can most clearly be shown by examining the item, which is item K in the return of the Tenth Circuit, which is a letter on the stationery of Judge Chandler signed by all five judges of the Western District of Oklahoma, leading off with Stephen J. Chandler as the first signature addressed to the Tenth Circuit Judicial Conference in response to the letter of the Honorable Davis T. Lewis to the active judges of the United States District Court for the Western District of Oklahoma.

In the minutes of the meeting of the Judicial Council attached thereto, “We advise that the current order for the division of business in this district is agreeable under the circumstances.”

Now Judge Chandler makes a lot out of that “under the circumstances.”

He refers to the fact that his previous letter in February 1966 by which he joined with the other judges in agreement as to the division of the business was under protest.

He says that this is under duress.

However, it seems to me clear that Judge Chandler cannot have it both ways.

He cannot either consent and not consent at the same time.

By this letter, he has consented.

There is thus no dispute between him and the Tenth Circuit Judicial Conference.

Hugo L. Black:

You mean unconditionally he consented?

Erwin N. Griswold:

He — I’m sorry, Mr. Justice?

Hugo L. Black:

Do you mean unconditionally consented (Voice Overlap) —

Erwin N. Griswold:

Yes, Mr. Justice, I believe that he has unconditionally consented.

Hugo L. Black:

What would you do with the under the circumstances?

Erwin N. Griswold:

I don’t know what under the circumstances means there.

These are the — I suppose anyone acts under the circumstances, any appearance or any consent is, but if Judge Chandler does not consent, all he has to do is to say so, in which case, it will become incumbent on the Judicial Council under Section 137 to issue an order for the division of judicial business in the Western District of Oklahoma.

And if Judge Chandler doesn’t like that order, he can take whatever steps may be appropriate at that time.

Byron R. White:

Well, Mr. Solicitor General, what do you think the Judicial Council should do when Judge Chandler is out of business, and his old cases or so called statute that to say he has all business is rather a (Inaudible).

Do you think the Judicial Council is entitled to leave its order in effect just because the district judges say it’s satisfactory to them?

Erwin N. Griswold:

Yes, Mr. Justice, not only entitled but I don’t believe they have any power with respect to it.

Byron R. White:

So two — three district judges, as long as they all agree, can agree that one judge will never have any more cases?

Erwin N. Griswold:

No, Mr. Justice.

Only all of the judges of the — of the Western District of Oklahoma can agree as to —

Byron R. White:

Well, that’s what I just said.

I just said, can all of the judges of a district agree that one judge will never be able to — will never do any more work?

Erwin N. Griswold:

Yes, Mr. Justice, I believe they can, and I believe that if they do, the Judicial Council has no authority with respect to it and if that results in an inappropriate situation, it can be reported to the Judiciary Committee of the House of Representatives and they can consider whether this is an occasion for impeachment.

Now, there may be —

Byron R. White:

Do you think that —

Erwin N. Griswold:

— possibilities under Section —

Byron R. White:

Do you think that answer is essential to your case?

Erwin N. Griswold:

No, Mr. Justice.

I’m about to qualify it, if I may be allowed to.

There may be possibilities under Section 332.

I was thinking solely in terms of Section 137, the division of judicial business in the district.

There may be circumstances which would be relevant with respect to that under Section 332 under which each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the Courts within its circuit, and I suppose that if the — all of the District Judges of the Western District of Oklahoma entered an order by which they agreed that no business would be assigned to any of them, that it would certainly be appropriate for the Judicial Council to act under Section 332 and it would then be the statutory duty, as well as the moral duty of the judges to carry out that order.

Warren E. Burger:

Well, the Section — the situation you pose would arise equally, would it not, if without anything entering any order to that effect, they simply all refuse to do any work.

Erwin N. Griswold:

Yes, Mr. Justice.

This —

Warren E. Burger:

So it isn’t the order that triggers this, it’s the conduct, isn’t it?

Erwin N. Griswold:

Yes, Mr. Justice.

It’s the — it is the statutory responsibility of the Courts of Appeals sitting en banc and thereby being known as the Judicial Councils to make appropriate orders for the effective and expeditious handling of the business of the District Courts and a situation where all of the district judges in a district fail to meet their responsibilities would clearly be a situation calling for the exercise of that power.

Now, various things have been said about the order which was entered by the Judicial Council in December of 1965 that it was done without a hearing and without notice and so on.

Erwin N. Griswold:

In our brief, we indicate that we think that as of that time, it may have been difficult to support that action.

It was quickly explained as having been interlocutory and I can conceive of situations where it would be appropriate for the Judicial Council to take action of this sort without a hearing and indeed without notice just as courts repeatedly grant temporary restraining orders on ex parte applications because something has to be done quickly.

I can imagine a situation where a judge should go on stark raving mad and something had to be done.

I can imagine situations where it would be entirely appropriate for the Judicial Council to order that no further cases be assigned to a judge and that he not sit on any pending cases presumably after a notice and a hearing.

For example, if a judge were indicted for having accepted bribes in connection with his handling of the cases and he announced, “Well, who cares about that?

I’ll be in Court Monday, you can go ahead.”

I can imagine that it would be appropriate for the Judicial Council to issue an order such as was issued here or even stronger than was issued here, providing that he should no longer — should not sit on pending matters and should have no new matters assigned to him until the indictment had been disposed of.

Now, that is not this case.

In this case, it is my own view that the Tenth Circuit Judicial Council did not act with the proper procedures, but on February 4, 1966, that order was completely superseded, it is no longer in effect.

I don’t think the antitrust case of last year has any real application to this.

There is no — there is no threat or risk that the Tenth Circuit Judicial Council will do further acts which would be inappropriate.

Since February 4, 1966, the only order that has been outstanding has been one which is in entire accord with the position of Judge Chandler.

Item one, Judge Chandler has agreed with the judges of the District Court for the Western District of Oklahoma that no new business will be assigned to him.

And item two, all pending cases before Judge Chandler are left to him without interference in any way.

He thus has exactly what he asks for currently.

If he thinks that isn’t all that he wants, he can change it.

With respect to pending cases that may soon be cleared out.

With respect to future cases, all he has to do is to tell his fellow district judges that he doesn’t agree and that he wants some cases assigned to him.

If his fellow judges do agree to assign cases to him and he accepts that, there will be no disagreement and there will be no basis for the Tenth Circuit Judicial Council to act under Section 137.

If on the other hand his fellow district judges do not agree, then there will be a disagreement.

It will be appropriate for the Tenth Circuit to take whatever action may be appropriate under the circumstances, and I have no idea what that action would be.

Thus, I submit for the Court’s consideration that although it is novel that this is a case within the appellate jurisdiction of the Supreme Court of the United States, but that the motion for leave to file the petition for a writ of mandamus should be denied because there is no longer any existing controversy outstanding.

Warren E. Burger:

Thank you, Mr. Solicitor General.

Thank you, Mr. Wright.

Thank you, Mr. Kenan and Mr. Shipley.

The case is submitted.