United States v. American-Foreign Steamship Corporation

PETITIONER:United States
RESPONDENT:American-Foreign Steamship Corporation
LOCATION:Fleetwood Paving Co.

DOCKET NO.: 138
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 363 US 685 (1960)
ARGUED: Apr 25, 1960
DECIDED: Jun 20, 1960

Facts of the case

Question

  • Oral Argument – April 25, 1960 (Part 1)
  • Audio Transcription for Oral Argument – April 25, 1960 (Part 1) in United States v. American-Foreign Steamship Corporation

    Audio Transcription for Oral Argument – April 25, 1960 (Part 2) in United States v. American-Foreign Steamship Corporation

    (Inaudible)

    Arthur M. Becker:

    Your Honor.

    I mentioned the case of Bishop against Fisher in which Judge Maris participated as being in the First Circuit, I’m told — I meant the Third Circuit which Judge Magruder —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    — has been assigned from the First to the Third Circuit and then participated in the en banc — in the en banc decision to deny a petition for rehearing in the Third Circuit, not in the Fifth.

    Now, I believe that the —

    Earl Warren:

    Is that the only instance you’ve ever — you’ve been able to find that it was ever done?

    Arthur M. Becker:

    Well, then sir, of a judge assigned from another circuit.

    Yes, but we have found several cases precisely like this one in three circuits — three other circuits where a judge who an active judge who was assigned to a Court of Appeals en banc and thereafter retired after the case was submitted, participated in the decision of the court.

    Now, we found that that practice to be followed in the Third Circuit and we have two cases in our briefs on that in addition to the two cases we have, are (Inaudible) and (Inaudible) against the Auto Racing Association.

    Now, they referred to in the Government’s reply brief on page 4 and in our supplemental brief on page 2.

    In both of those cases, Judge Maris, the situation is exactly the same.

    They were heard exactly the same time by a court en banc of which Judge Maris is an active Judge of the Third Circuit participated.

    Thereafter, Judge Maris retired.

    Thereafter, he participated in the decision of both of those cases on the same day.

    It’s precisely the same as the case now before the Court.

    Earl Warren:

    Did they grant the rehearing on those cases or denied them.

    Do you know?

    Arthur M. Becker:

    They — no — no, this was not a grant of rehearing.

    Judge Maris —

    Earl Warren:

    When they acted en banc did they have —

    Arthur M. Becker:

    Yes, sir.

    There had been a grant of a rehearing.

    It’s like this case.

    It’s not like this supposititious case.

    Earl Warren:

    I see.

    Arthur M. Becker:

    And he was on the court en banc on the rehearing or on the hearing or rehearing.

    He was a member of the court en banc just like Judge Medina was.

    Thereafter, he retired.

    Thereafter, the case was decided and he participated in the court’s decision.

    Arthur M. Becker:

    We have also found in addition to that, two — three cases in the Ninth Circuit which we have called to the Court’s attention.

    Those three cases are Herzog against the United States.

    In those cases, Judges Bauman and Orr heard the case en banc, thereafter, retired and thereafter, participated in the court’s opinion.

    The other case was United States against Price.

    In that case, Judge Healey who was a member of the court en banc that heard the case thereafter retired and thereafter, participated in the court’s decision.

    Now, there is another case, In re Sawyer, in which Judge Denman had participated in the case but withdrew, he did withdraw.

    Judge Hamlin who had been appointed between the time it was submitted and the time it was heard, did not participate.

    And I think a fair reading of that case is that this was an individual determination of Judge Denman.

    Now, the court pointedly said, the only reason he didn’t — didn’t participate was that he didn’t want to in every implication particularly since it’s bracketed between the two other cases where they did permit the retired judges to participate.

    Every implication is, the court said, “Well, if you don’t want to, you don’t have to.”

    But the court did not deny him that right.

    And in addition to that, there are two cases in the Fifth Circuit where the court sat on a rehearing, sat to determine whether a rehearing en banc should be granted.

    Now, in those cases the point was specifically raised by dissenting judges like it was here as to whether Judge Sibley, who had sat with the court en bank could participate in the decision en bank denying a petition for rehearing.

    He did vote, it was denied 3-to-2 with his vote and the other two judges dissented and said, “He had no right to participate and thereto, there were two other judges who had been appointed in the meantime, one to take Judge Sibley’s place and one to take Judge Lee’s place who had died but had not participated in the original decision because he was ill in the original case.

    And the court did not permit these two new judges to participate in the question of whether a rehearing en banc should be granted but did permit Judge Sibley to participate and it was denied 3-to-2 with his vote being decided.

    So we have three other circuits.

    I think that case is the same in principle as this case.

    We have two circuits in which the same question has arisen and be decide this way, a Third Circuit in which a question identical in principle has arisen and to decide it this way.

    And then also in the Third Circuit, you have the case of the judges — of the active judge from one circuit sitting by assignment and that leads to the same result.

    So, every case, now, it’s very difficult to say we have every case Your Honor because they’re not — they’re not normally classified.

    We found them by leafing through the books but I had two people doing that for six months and done it myself.

    My colleagues had done the same thing and the Government has with every case any of us have found all went that way in every single circuit.

    Earl Warren:

    However, they didn’t sit.

    You — you couldn’t find them in their seats.

    Arthur M. Becker:

    Well, no sir but — but we did look — we did — we did try to.

    We — we took the list of the retired judges and —

    Earl Warren:

    I see.

    Arthur M. Becker:

    — and we went through it as well as we could.

    We may have missed it because —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    –as you see if —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    — it’s not classified it’s a rather difficult —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    — situation.

    Would you mind giving me the names of those three cases.

    I just want to check them off in the —

    Arthur M. Becker:

    They’re — they’re in the —

    Those three cases you were referring to.

    Arthur M. Becker:

    Well, there — there nine.

    And you mean in the Ninth Circuit?

    Yes.

    Arthur M. Becker:

    The Ninth Circuit the three cases are, Herzog against the United States, In re Sawyer —

    Charles E. Whittaker:

    In re what?

    Arthur M. Becker:

    In re Sawyer, S-A-W-Y-E-R, In re Sawyer and they are referred to on pages 21 and 22 of my main brief.

    And the Third case with the Ninth circuit is United States against Price and that is referred to on page 4 of the Government’s reply brief and on page 2 of my supplemental brief.

    Those are the three Ninth Circuit cases.

    The Third Circuit cases and I want to emphasize this because I have always disagreed with — with the Government’s interpretation of Judge Maris’ views.

    They say Judge Maris would have denied that, he never said that.

    He spoke of active judges participating generally but he never — he never spoke of this situation where the judge was designated and assigned to the court before he retired.

    Now, therefore I want to particularly stress the two cases that arose in the Third Circuit because there, (Inaudible), appear on page 4 of the Government’s reply brief and C-O-R-E-B-I, Corebi against the Auto Racing Company which is also on page 4 the Government’s reply brief.

    And they are on page 2 of my supplemental brief.

    Now, and though both of those cases the judge retired after participating in the — after hearing the case en banc was Judge Maris.

    And he himself thereafter, voted with the court and participated in its decision just like Judge Medina did in this case.

    So I do think that our interpretation of his views is correct rather than the Government’s interpretation of his use of some general statements he made.

    Charles E. Whittaker:

    Was there any attack upon that action?

    Arthur M. Becker:

    No, sir, there was not.

    The question — the — the only case in which I know of in which the action of the judge was ever attacked in participating was in this case and also in the two Fifth Circuit cases where Judge Sibley participated in denying where his vote was decisive, after he retired in denying a petition for rehearing en banc.

    And that was the case where the court sat en banc to deny the petition for a rehearing en banc.

    And in that case the dissenting judges in both of those cases attacked his right to sit on the court.

    Arthur M. Becker:

    Those are the only cases that I know of or I think the Government has made a similar statement in its brief that they know of in which the — in which the question was actually discussed.

    Now I’d also like to make one other point.

    I think it is very clear that the Western Pacific Railroad Case, that in Western Pacific Railroad case, this Court held that the majority of the active judges of the circuit could delegate authority to a panel either to deny or to grant a petition for rehearing en banc and that was specifically before them that the panel in that case consisted of two district judges and one circuit judge.

    As a matter of fact, the majority of the opinion noted that fact and said that’s why this — now, if I might go into the Western Pacific Railroad case a little more because I think it’s terribly important to this problem.

    What happened there was, the majority of the courts — the Court Of Appeals said, “We will not pass on a petition for — for a rehearing en banc.”

    This is a question for the panel.

    The panel said or — or this Court interpreted the panel as saying, “We think we’re without authority in law to determine whether a petition for rehearing en banc should be granted.”

    Judge Vinson who wrote the majority opinion said, “This panel consisted of one circuit court judge and two district judges.”

    He said that specifically but it was the Court of Appeals, nevertheless.

    And we — we hold that the — that the majority of the active judges could determine to abide by the decision of this panel by entrusting the question of whether a rehearing en banc should be granted to them.

    And we know that two of the judges are in this panel were district judges and perhaps that’s why they thought they had no authority to act so we’re sending the case back because we think they could have acted or they said, “The court if it liked, the active judges could themselves have decided the petition.”

    But in any procedure, the majority of the active judges decide this perfectly call of right.

    They can either delegate their whole authority to this panel with two — two district judges and one circuit judge or they themselves can adopt the procedure whereby they will decide whether a rehearing en banc should be granted.

    And I —

    Earl Warren:

    But does it follow that — that they can have — sit with them en banc anyone they want?

    Arthur M. Becker:

    Well.

    I don’t know, Your Honor but I’m — I’m rather inclined to think it does because the broad rationale of the — of the Western Pacific Railroad Case was, that it’s a grant of power to the Court of Appeals to decide — devise any acceptable procedure.

    Now, I don’t think there’s any difference between the active judges who the statute says can determine whether a petition for rehearing en banc should be granted and the active judges who may sit with the court.

    And I think the one follows with the other and it’s a logical — there’s also many other reasons why I believe that’s true but there’s a logical compactness with it.

    Certainly, the judges who can vote, grant a rehearing or designate as judges in active service are precisely the same category of judges who can preside on it.

    Now, I think the Western Pacific Railroad case said, as I interpret it, “The active judges of a circuit are primarily members of the Court of Appeals.

    They must be consulted.

    They must be members of a court en banc and the legislative history shows us.

    That’s why it said all active judges of the circuit shall constitute or a court en banc shall consist of all active judges of the circuit.

    If they wish to call someone else in or they wish to delegate part of their authority, they can do so and I think that avoids the reductio ad absurdum that Mr. Elman spoke up.

    In other words —

    Or if they’re going — excuse me.

    Earl Warren:

    No, no.

    Go right ahead please.

    Arthur M. Becker:

    Sir.

    Calling somebody else in to sit.

    Arthur M. Becker:

    That’s right.

    And allowing somebody who is not an active judge of the circuit to sit on the petition, are two different things.

    In order to support your broader proposition, you have to read the last sentence saying that a court en banc shall include all active —

    Arthur M. Becker:

    That’s right.

    — circuit judges instead consist of.

    Arthur M. Becker:

    That’s right.

    Well —

    That’s your proposition.

    Arthur M. Becker:

    — well that’s what I — that’s what I do think.

    Now, Your Honor –(Voice Overlap)

    You don’t have to go far that —

    Arthur M. Becker:

    — I would like to point out that I don’t — I don’t think that this precise problem because there’s no — in this case, there’s no disagreement as to a judge who has been assigned.

    I don’t see why you’d take on more baggage enough to —

    Arthur M. Becker:

    Well I — I don’t wish to accept.

    I was trying to answer some of the questions but that I — I don’t think we have to go that far that’s quite correct and I don’t —

    Earl Warren:

    But if you’re going — if you’re not going to go that far, how — what language do you — do you rely on in 46 (c)?

    What — what permits you to differentiate between the judge and judgement on his position and — and one who is assigned from —

    Arthur M. Becker:

    Well, simply this Your Honor.

    Earl Warren:

    — not only to this circuit or —

    Arthur M. Becker:

    Well, I think —

    Earl Warren:

    — or for the District Court to —

    Arthur M. Becker:

    I think section 46 (c) refers to the times the court is constituted.

    Earl Warren:

    The what?

    Arthur M. Becker:

    The time that the court en banc is constituted not to a subsequent time.

    This is a section — the entire Section 46 refers to the — gives authority to the Court of Appeals to assign its work and distributed among its member and to constitute itself into divisions or into a court en banc.

    Now, if the court is lawfully constituted at that time, a subsequent change in status of one of its members does not render him incompetent to sit.

    Now, Your Honor this is not a new question.

    This has come up in literally dozens of cases where a jurisdictional statute in addition to those I’ve cited, the precise cases, en banc cases I’ve cited.

    There were literally dozens of cases where a jurisdictional statute says, “A judge may sit with the court while a vacancy exists.”

    Arthur M. Becker:

    The vacancy is filled and under the literal language of the statute, he has no authority.

    In every single one of those cases and there I do believe, we’ve read every single one of them.

    The courts have held that the statute should be interpreted to refer to the constitution of a court at the time it’s convened.

    And they said if a judge no longer has authority that refers to new cases, not to cases which have been committed to the consideration of a court while he was a member of a court.

    That rule of statutory construction, the cases were collected in — the cases were collected in District of Columbia case of all these various jurisdictional statutes (Inaudible) which we’ve cited here.

    They quote the language of the statute.

    It’s always peremptory in form that says he has authority up to this point and in every case state and federal, the courts have said, “This does not stop a judge who is lawfully a member of a court for completing a case which he heard as a member of the court.”

    I’d like to point (Voice Overlap).

    Earl Warren:

    And would you say that applied to this Court?

    Arthur M. Becker:

    Yes, sir.

    There’s no —

    Earl Warren:

    Have you found —

    Arthur M. Becker:

    — are found —

    Earl Warren:

    — found any instances where it has been for —

    Arthur M. Becker:

    Well, we —

    Earl Warren:

    — for you?

    Arthur M. Becker:

    Well, Your Honor, we found or — or you mean this — I’m sorry, you mean the Supreme Court?

    Earl Warren:

    Yes.

    Arthur M. Becker:

    Oh — no, Your Honor.

    I — I would not say it applied to this Court because I —

    Earl Warren:

    What do you think —

    Arthur M. Becker:

    — I think there is —

    Earl Warren:

    — the distinction from the point (Voice Overlap) —

    Arthur M. Becker:

    Well as a matter of —

    Earl Warren:

    (Voice Overlap) that you attest that —

    Arthur M. Becker:

    I think — I think —

    Earl Warren:

    — that instrument.

    Arthur M. Becker:

    — that in the retired judges, it says —

    Earl Warren:

    Beg your pardon?

    Arthur M. Becker:

    I think with respect to retired justices in this Court if my memory serves me right, the statute says they shall not participate thereafter, in — in any decisions of the Supreme Court after they retire.

    Arthur M. Becker:

    I think there is a special —

    Earl Warren:

    Where — where is that?

    I — I’m not quite familiar.

    Arthur M. Becker:

    Well, I — I haven’t got of the statute before me —

    Earl Warren:

    I beg your pardon?

    Is there — would you — would you send that to us?

    Arthur M. Becker:

    Yes, I will.

    I think there is a — I think there is a specific well — more than the assignment statute.

    It says they can never thereafter be assigned to the Supreme–

    Earl Warren:

    Oh, I know, but you say the assignment has already taken place that they — that they —

    Arthur M. Becker:

    Well —

    Earl Warren:

    — sat and it was assigned to them —

    Arthur M. Becker:

    Yes.

    Earl Warren:

    — and they worked on it and so forth but didn’t do it — it didn’t — the judgement didn’t come down by the time they retired.

    Arthur M. Becker:

    Well.

    There maybe another policy but I don’t know — I do — my offhand reaction was that there — there is probably a policy for justices not to participate after they retired from the Supreme Court.

    Earl Warren:

    You think it’s only a matter of policy?

    Arthur M. Becker:

    Well, I think there’s a policy by recollection as indicated in the — in these sections of the statute.

    Felix Frankfurter:

    Well, now let’s see if I understand —

    Arthur M. Becker:

    But I — I don’t know.

    I haven’t examined that question.

    I have —

    Felix Frankfurter:

    The Chief Justice’s questions was whether the principle that — what you said was the prevailing body of judicial authority that when a man is a new member of — has jurisdiction to sit in a case which is terminable on some condition to be fulfilling a vacancy and so on.

    He may continue to sit after the condition of his temporary appointment has come to an end, is that right?

    Arthur M. Becker:

    That’s, right.

    That’s right.

    Felix Frankfurter:

    The Chief Justice, as I understood him, then asked, does that apply to the — this Court, the Supreme Court of the United States so that a member of this Court having heard the argument, participated at conference and as has been the case even drafted an opinion in which the court joined.

    If thereafter, if he retires before there’s an actual announcement of the decision of a Monday, he can no longer participate in it.

    I think there is certainly one or two cases in which this Court has said this is substantially the opinion which was written by Brother Jones and the Court now adopts it.

    But he himself ceases to be — he is faultless if he’s not actually physically in service as a member of the Court on the given Monday when the case is ever done.

    Felix Frankfurter:

    I thought you said you thought there was a specific result.

    Arthur M. Becker:

    Well I did but I —

    Felix Frankfurter:

    — from the statute.

    I should be greatly surprised of that result.

    Arthur M. Becker:

    Well, I — I think Your Honor, I was referring to the statute with respect to the subsequent assignment for designation of — of a justice of this Court.

    Felix Frankfurter:

    You mean as a circuit justice, isn’t it?

    Arthur M. Becker:

    Yes, that — that the statute says it even designated the courts other than the Supreme Court as I believe assigned to them.

    Tom C. Clark:

    Because I asked for this, I thought it’s just affirmatively —

    Arthur M. Becker:

    That’s right.

    Tom C. Clark:

    I think that’s the closest field down their (Inaudible) —

    Arthur M. Becker:

    I think so.

    Yes — yes I think that’s quite right but — but it seems to imply that he can only get the designated or assigned to those courts and not to the Supreme Court at (Voice Overlap) —

    Felix Frankfurter:

    All you can say is that so far as this Court is concerned, once a judge resigns or retires — that he retires, he can no — he is no longer an active — I’m not questioning — he’s no longer potentially capable of functioning on this Court.

    Arthur M. Becker:

    I think that’s correct.

    Felix Frankfurter:

    But in the case of retiring — retiring or retired circuit judges, putting this thing aside, they do continue to exercise — they may exercise all the functions they did regarding this problem here, the day before they retire.

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    But he’s still a member of the collegium or collectivity that constitutes —

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    — the court whereas that is not the one we tried.

    Well, just —

    Arthur M. Becker:

    That’s right.

    I think in a sense, a retired justice of the Supreme Court is no longer really a — a member of the Supreme Court.

    Felix Frankfurter:

    That wouldn’t really — he isn’t one.

    Arthur M. Becker:

    Well, then that’s — that — that I think is the distinction whether a retired judge of a Court of Appeals is a member of a court.

    Earl Warren:

    Well is he?

    Is he?

    Now, what — what does 43 (b) say?

    It says, “Each Court of Appeals shall — shall consist of the circuit judges of the circuit —

    Arthur M. Becker:

    That’s right, sir.

    Earl Warren:

    — in active service.

    Earl Warren:

    The circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the Court.”

    But it does not say that they are still members of the Court.

    Arthur M. Becker:

    Well, Your Honor the reason I said they were is this — that is precisely what this Court said in the Textile Mills case.

    In that case, the same statute said, the circuit justice is competent to sit as a member of this Court and this Court held that he was therefore a component part of the Court although the circuit judges were primarily members of the Court and I was adopting the language this Court said.

    This Court said that because the circuit justice was qualified — was competent — precisely the same language was —

    Earl Warren:

    By assignment.

    Arthur M. Becker:

    — was competent to sit as a member of the Court.

    He was therefore, was competent to sit as a judge of the Court.

    He was therefore, a component part of the Court.

    Earl Warren:

    That’s for the — for the purpose and which assigned.

    Arthur M. Becker:

    Well, it used the word component part.

    I was using the same language.

    I didn’t — did want to make —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    — any distinction.

    I was using the same language this Court had used.

    Earl Warren:

    Yes.

    Arthur M. Becker:

    But in the Textile Mills case, this Court did say that.

    I believe I have it — I have it in my — well, yes, here it is.

    It was in a footnote.

    It says, “In this connection, it should be noted that Section 120 of the Judicial Code makes the Chief Justice and associate justices of a Supreme Court assigned to each Circuit competent to sit as judges of the Circuit Court of Appeals within their respective circuits.”

    That’s why the Circuit Court of Appeals is composed primarily of circuit judges, the circuit justice is made a “component part” of that Court.

    And I — I —

    Earl Warren:

    That — would that lead to you to believe that the circuit justice is — is an active judge of the —

    Arthur M. Becker:

    No sir.

    Earl Warren:

    — of the Court?

    Would he — could he sit as a —

    Arthur M. Becker:

    Yes sir.

    Earl Warren:

    — en banc?

    Arthur M. Becker:

    I think he could, sir.

    Arthur M. Becker:

    I think that’s what Textile Mills held.

    Now, I’d like to go into the legislative history of this a little bit.

    And I think that’s precisely —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    — what they tried to enact.

    In the Textile Mills case, you utterly recall, the question was of course whether the Court could sit en banc.

    And in reaching the conclusion that it could sit en banc, this Court said it’s obvious that the three-judge limitation cannot be applied liter — applied literally because some circuits have more than three judges.

    It also said and that’s a remark I was just reading from.

    In this connection, it should be noted that the Chief Justice and associate justices are also competent to sit as members of the Court.

    They’re component parts of the Court and in its decision, it equated competency to sit on the Court with competency to perform its most important function, to decide cases and therefore said, all judges competent to sit on the Court are competent to sit en banc and decide a case.

    Earl Warren:

    And do you believe that there are — are three or four retired members of the Court of Appeals in a large circuit and the chief judge also brings in — in two or three outsiders to sit in certain litigation that all of them can sit with the active members of the court en banc?

    Arthur M. Becker:

    If the active members of the Court decide that they want him to because the authority to assign judges to the Court in its divisions resides in the active judges of a court under Section 46.

    Earl Warren:

    In other words, it’s — is it your opinion that — that whenever a judge is assigned to — to perform duties in the Court, that for all purposes, he becomes an active member of the Court?

    Arthur M. Becker:

    No sir.

    He becomes competent to sit as a judge of the Court not an active member of it and I say — what I’m saying is —

    Earl Warren:

    Then how do you read out the active members?

    Arthur M. Becker:

    Well — well, I’m not quoting it out.

    Earl Warren:

    (Voice Overlap)

    Arthur M. Becker:

    The active members of the Court of — on — I’m adopting the same view this Court did in the Textile Mills case.

    The active members of the Court are primarily the Court.

    They’re defined as such.

    They have the authority of assigning to the Court and its divisions any judge or justice who is competent to sit as a member of the Court.

    And I say that the active judges of the Court have the power if they desire to call in — to take any judge who’s competent under Section 43 (b) and permit him to sit on a court or its divisions or with the — with the active judges en banc.

    I think that’s the plain meaning of the statute.

    And I think also, it’s what — it’s what was intended.

    I’d like to point this out, Your Honor that there is — there is considerable legislative history on this which indicates that was intended.

    Now, as I pointed out before in answer to Mr. Justice Frankfurter’s question, Section 120 made only the chief justice and the associate justice — justices of the Supreme Court assigned to each circuit competent to sit as judges of the Circuit Court of Appeals.

    Then the district judges could sit to fill out a three-judge court.

    That — that obviously was not involved here.

    Now, when 43 (b) was revised, the revisers in their notes — the revisers in their note provided that the provision of Section 212 of Title 28 U.S.C. for a three-judge Court of Appeals was permissive and did not limit the power of the Court to sit en banc.

    Arthur M. Becker:

    Thus, Subsection (b), and that’s the section I’m talking about.

    Thus, Subsection (b) reflects the present status of the law, namely that the Court is composed of not only circuit judges of the circuit in active service or whom there more — be more than three.

    But the circuit justice or justices and judges who maybe assigned or designated to the Court, see Textile Mills Security Corporation v. Commissioner of Internal Revenue.

    And all the revisers did when they revised 43 (b) was include the new class of judges who could be designated and assigned to the Court and gave them the same competency, and intended to give them the same competency to sit with the Court en bank that this Court held the circuit justice had under the former Section 120.

    What page is that quoted on your brief, Mr. Becker.

    Arthur M. Becker:

    Yes sir.

    It’s quoted on Section 35 and 36.

    Now, the Reviser’s Note is at the bottom of 35 of my main brief.

    And now — now, Your Honor, I would like to call your attention to this case of (Inaudible).

    I think it’s very important because it correlates all the cases in which there were mandatory jurisdictional statutes.

    And in that case, the Court pointed out and that’s on page 27 of my brief.

    I have that.

    The Court pointed out, this was the Court of Appeals in the District of Columbia.

    “That it was authorized to call in a justice of the Supreme Court of the District of Columbia to sit with the Court while a vacancy exists.”

    Then it says, that’s on page 27, “Between the submission of a case and its final disposition, weeks may intervene.”

    And it goes on and says –all right, yes.

    “And if during that period, the justice whose place the additional justice had taken must remain — remain away from the Court although ready to act, it would greatly impede, the dispatch of the public business here.”

    Ever since the organization of the Court, it has been the practice for the additional justice to participate in the opinions and judgments in cases argued before the Court while he was on the bench although the regular justice whose place he had been appointed to fill had returned to his duties before the judgments ran out.

    The right of the additional justice to do so has never been questioned by anyone so far as we know.

    Now, they point out —

    Earl Warren:

    Well that’s provided by statute, isn’t it?

    Arthur M. Becker:

    No, sir.

    The statute says he can sit while the vacancy exists and this is the case where he no longer can sit because the judge whose place he was filling has returned and the Court says, nevertheless, he can’t sit.

    Earl Warren:

    Well, wouldn’t — wouldn’t the Section 296 —

    Arthur M. Becker:

    Well, the — these are —

    Earl Warren:

    — apply to it?

    Arthur M. Becker:

    Sir, these are — these are cases under other — these are cases under other jurisdictional statutes.

    No, this was before 296.

    Earl Warren:

    Before 296.

    Arthur M. Becker:

    Yes, sir.

    Arthur M. Becker:

    And the —

    Earl Warren:

    But there are some — some special statutes about who can sit and how they can act in the District of Columbia, are there not?

    Arthur M. Becker:

    Well, there were then.

    Now, the district — the Court of Appeals for the District of Columbia is a Circuit Court of Appeals just like the other circuits.

    Earl Warren:

    Well, I know but there are certain —

    Arthur M. Becker:

    Yes, sir.

    Earl Warren:

    — judges that can —

    Arthur M. Becker:

    That’s right.

    Earl Warren:

    — who — who are here, who can sit in the —

    Arthur M. Becker:

    That — that’s quite correct, Your Honor.

    Earl Warren:

    — in the District of Columbia who cannot sit in — in other parts of the country.

    Arthur M. Becker:

    That’s quite correct.

    But — but Your Honor, — that — that was not the point before the case here.

    The point here was, they were discussing actually the general effect of jurisdictional statutes under which an authority of a judge has ended.

    They said —

    Earl Warren:

    Yes.

    Arthur M. Becker:

    They said the authority has ended and they went through all the state statutes and said it doesn’t matter.

    Every court, they pointed out there are courts always interpret such statutes as permitting a judge to finish a case he heard as a member of the court en bank or as a member of the court.

    Earl Warren:

    Member of the Court, yes.

    Arthur M. Becker:

    A member of the Court even though his authority ended.

    Earl Warren:

    I know Section 296 says that specifically.

    Arthur M. Becker:

    Yes it does.

    That’s right.

    And I think that supports the position of the Court below.

    Earl Warren:

    But I — I still don’t see how you equate that to making him a member of a — an active member of a court which is defined by the statute as being those — those judges who are active judges of the circuit.

    Arthur M. Becker:

    Well, that — that’s quite right.

    What I — what I’m saying is, I adopted the language of this Court.

    And I think more properly speaking, I’d say that Section 43 (b) makes him competent without qualification to sit as a member of the Court and that’s what — that’s really what I meant.

    Earl Warren:

    Yes.

    Arthur M. Becker:

    And I was using this Court’s language because they said it’s a component — you say it’s a component part of the Court.

    Hugo L. Black:

    Your — your chief argument is really on the Textile Mills statement, isn’t it?

    Arthur M. Becker:

    No, sir.

    Our chief argument is — that’s one of our arguments.

    The chief argument is on the point that a judge’s — that a judge’s authority does not end as a member of the Court that a — when his general authority ends, he is always permitted to decide cases that he heard as a member of the Court.

    That’s our chief point and we found that every case in every state has decided that way.

    Hugo L. Black:

    But of course that wouldn’t be true if the statute said otherwise.

    Arthur M. Becker:

    Well, if (Voice Overlap) the statute isn’t clear and unambiguous terms said or otherwise, I assume it would not be true but the Courts have been always refused to interpret a statute that way unless it was very clear that the legislature had so intended.

    As a matter of fact, I only — though I’ve said that I know of no case in which they actually have so held and I think I’ve read all.

    They’ve always said the language is not clear enough so as to lead us to believe that the legislature intended so capricious a result, a result which would so — as to badly interfere with the administration of justice as to take a judge who heard a case off the court.

    Now, they — they have said that the legislature’s intention was unmistakable.

    We hold the other way.

    But in the most mandatory statute, they said, “We don’t believe it.”

    And they’ve even said, “We don’t believe it even when the language literally says that.

    We don’t believe that’s what Congress intended.

    Felix Frankfurter:

    Your argument is that this — that Judge Medina was a member of a court en bank which consisted of all active circuit judges of the circuit.

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    And that that is not cut down by the first sentence, shall be heard and determined who are in active service.

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    That’s the short of the argument.

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    If you don’t read — you don’t qualify the last sentence by the fact that the purpose of the — the function of court is to determine, you read quite — quite — you read literally but for the court en bank should consist of all active circuit judges in the circuit that it so consist — your reading.

    Arthur M. Becker:

    Well, oh yes.

    Also Your Honor, we think that the judges who were assigned must determine it.

    But we don’t think that the status of the judges may — must be the same.But of course the function of a court is to determine cases but we say the justice in the other jurisdictional statutes are the change in status of the judge, did not disqualify him.

    We say that change in the status of Judge Medina did not disqualify him.

    Felix Frankfurter:

    Well he wasn’t an active —

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    — in the technical sense, he was not an active judge.

    Arthur M. Becker:

    That’s quite right.

    Felix Frankfurter:

    And he participated in the decisions.

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    He was an active judge when the Court was constituted and you rest on that, on the literal translation of that last — meaning of the last sentence.

    Arthur M. Becker:

    That’s right.

    Earl Warren:

    Well, I wonder how you — how you justify the case that you mentioned a little while ago where you say two — two judges sat on the — on the case and then retired later and their positions were filled before the decision was rendered.

    Arthur M. Becker:

    That’s right.

    Earl Warren:

    And the two who were — who filled the positions were barred from service —

    Arthur M. Becker:

    That’s Right.

    Earl Warren:

    — on the court.

    And the old — old ones were permitted to act.

    Arthur M. Becker:

    Well, but say —

    Earl Warren:

    Now, how — how can — how could you read those two new —

    Arthur M. Becker:

    Well, because — because, Your Honor —

    Earl Warren:

    (Voice Overlap) on that of statute if the statute says all active members of the court.

    Arthur M. Becker:

    Your Honor, that’s precisely — that was precisely the point of Judge Hincks’ opinion and I agree with it thoroughly.

    For almost a hundred years, this Court starting with the case in the United States against Kirby which I’ve cited has said that statutes which lead to an absurd and unreasonable result should not be literally read so as to read to that — lead to that result.

    They said, “We are not to interpret such statutes.

    We want to make exceptions.

    We need exceptions into them.”

    Now, even the dissenting judges in this case who felt that they were compelled by a — what I consider a pseudo literal reading of Section 46 (c) to object that Judge Medina is sitting on a court said, “They regarded judges in his position, their –their participation in such cases as desirable and beneficial but they doubted the wisdom of excluding a judge who had sat on the court from — from participating in its decision.”

    And I think under those circumstances, following the traditional way in which this Court has interpreted the legislation, this sort of an exception or this sort of a policy should be read into it.

    We ought not to say that if in other cases, it would lead to a bad result, we can cross those bridges when we come to it but we are not to say now that where it would lead to an obviously good result, we should bar the judge from sitting.

    And I think that’s what every court has done in four circuits.

    They’ve always done that.

    They have never let the new judge come in because that would obviously require a rehearing.

    How can he come in as a sort of second class member of a court?

    He has to know what went on to intelligently decide the case and they won’t bar the old judge from participating in the case.

    Every single case has said that.

    Now, I — I don’t want to take all the time because —

    On the first sentence of 46 (c), supposing that and read the toward a division of not more than three active judges.

    Would your position be any different with respect to the competency of a retired judge to participate in this?

    Arthur M. Becker:

    No, sir, I think it’s exactly the same because I want to point out and I want to point out that in this connection, there’s another statute which says that no retired judge shall perform any judicial duties without being designated or stand assigned.

    And we pointed out that Judge Median decided 36 cases, three-judge cases without a designation of assignment.

    Judge Magruder decided 25.

    Well, the Government makes no point about that.

    Arthur M. Becker:

    Well, yes but I think it’s a relevant point because it seems to me it’s the same principle.

    There, a statute in mandatory terms as the — a judge shall perform no judicial duties and yet — yet he’s been permitted to because it was a sensible and wise thing to do if he heard the case in every one of the circuits.

    This has arisen in 10 of the 11 circuits.

    (Voice Overlap) —

    Earl Warren:

    Have that been considered — had that been considered by the courts?

    Arthur M. Becker:

    Well, I don’t —

    Earl Warren:

    And argued as to whether — whether any judge can sit on –on any federal court without assignment unless he is the judge of that Court?

    Arthur M. Becker:

    Well, Your Honor please, I — I don’t think it’s ever been discussed.

    It is — it’s not before this Court now in the Goldfine case in a petition for certiorari.

    Well, I have — I have cited in there cases in 10 of the 11 circuits in which — in which the practice has been followed.

    And those are the only cases —

    Earl Warren:

    Well — well, then this language in 43 (b) is — is — supporting to you and might just as well — just as well write it out (Inaudible).

    Thus, in the — each Court of Appeals shall consist of the circuit judges of the circuit in active serve — service.

    The circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the court.

    Now, if they — if they don’t have to be designated or assigned, what is that language for?

    Arthur M. Becker:

    Well — well, the Government explained this to the court below saying that designation and assignment was a designation and assignment that took place before they retired, their assignment to the case.

    That’s what the Government said to the court below.We have that quoted in — that statement quoted in our brief.

    And that apparently is the theory.

    That’s how they explained the theory that if the judge has been designated and assigned to a case before he retired, his designation and assignment (Voice Overlap) —

    Earl Warren:

    Yes, I know but you’re talking about doing it in 30 cases, and part of one judge and 25 (Voice Overlap) —

    Arthur M. Becker:

    Well, that’s exactly what happened.

    We have the cases.

    Earl Warren:

    Well, I know it happened but I’m — does that make it right?

    Arthur M. Becker:

    Well, Your Honor, yes because they were assigned — they were assigned to all these cases before they retired.

    These are all cases in which they — they were assigned.

    Earl Warren:

    Well, but they didn’t — but they didn’t complete?

    Arthur M. Becker:

    But they didn’t complete.

    Earl Warren:

    Oh, I didn’t — I didn’t’ (Voice Overlap).

    Arthur M. Becker:

    I’m sorry.

    Earl Warren:

    Yes.

    Arthur M. Becker:

    These were all cases in the same position as —

    Earl Warren:

    Oh, yes, yes.

    And I thought you —

    Arthur M. Becker:

    No, no.

    Earl Warren:

    — were talking about new cases —

    Arthur M. Becker:

    Oh no, no.

    Earl Warren:

    — after they retired.

    Arthur M. Becker:

    No, no, Your Honor.

    These are cases in which they were assigned.

    Earl Warren:

    Yes.

    Arthur M. Becker:

    That’s why I think the parallel exist (Voice Overlap) between.

    Now, the only other point I want to make —

    Potter Stewart:

    But Mr. before you leave that, how can — how can a litigant ever know or how can a reader of the Court’s opinion ever know whether or not the retired judge was designated and assigned.

    There’s nothing in the statute when this is all within the circuit when it’s — when it’s a matter of the chief circuit judge designating a retired circuit judge of that circuit to sit that there’s nothing in the statute requiring that that be in writing, isn’t it?

    Arthur M. Becker:

    Well, I think there is Your Honor.

    I think that there —

    Potter Stewart:

    I’d like to — I have the —

    Arthur M. Becker:

    Yes, I’ll give that to you.

    Well, the second paragraph of 2 — of 295 says all designations and assignments of justices and judges shall be filed with the clerk and entered on the minutes of the courts from and to which it’s made.

    Potter Stewart:

    Well that — that involves inter-circuit designation, doesn’t it?

    Arthur M. Becker:

    Well, I think it involves both I would assume.

    There’s nothing that indicates —

    Felix Frankfurter:

    But Judge Magruder sat in other circuits, didn’t he?

    Arthur M. Becker:

    In —

    Earl Warren:

    Yes.

    Felix Frankfurter:

    Judge Magruder sat outside of the First Circuit.

    Arthur M. Becker:

    Yes, but in the First Circuit, he sat in 25 cases in those —

    Felix Frankfurter:

    That I know, but my point is, did Judge Magruder sit in other circuits beginning the case when he was still in active service and concluding when he had retired.

    Arthur M. Becker:

    No, sir.

    Not —

    Felix Frankfurter:

    On First Circuit and he sat in cases in which he sat as a — unquestionably an active judge.

    Arthur M. Becker:

    That’s right.

    Felix Frankfurter:

    But the decision wasn’t determined until after he had retired.

    Arthur M. Becker:

    That’s right.

    And there are 25 of those.

    Now —

    Potter Stewart:

    Do you say that’s the second paragraph of — of 295?

    Arthur M. Becker:

    Yes, sir.

    Potter Stewart:

    And where does that appear, it’s not the appendix in (Voice Overlap) —

    Arthur M. Becker:

    No, no it is not because if — it’s in the —

    Potter Stewart:

    Well, it’s in the Code.

    Arthur M. Becker:

    It’s in the Code.

    Potter Stewart:

    Right.

    Arthur M. Becker:

    And — that’s the only point my opponent — my colleague will discuss the thing.

    Earl Warren:

    Mr. Fort.

    J. Franklin Fort:

    Your Honors please.

    My argument will have to be cut down some but what I would like to deal with primarily is the question of what is the practical solution to this problem.

    In both the Textile Mills case and the Western Pacific case, this Court has held that there is considerable liberality in the constitution of en — en banc courts and that — that any interpretation of the statute which will aid in the smoother administration of justice should be adopted.

    Now, we think that taking the date of the —

    Felix Frankfurter:

    That’s a rather broad statement, Mr. Fort.

    That means that whatever we think is desirable to the new administration of justice, allows us to determine the scope and authority of judges.

    J. Franklin Fort:

    Well, Your Honor, it —

    Felix Frankfurter:

    It might be highly desirable for that to — it will —

    J. Franklin Fort:

    It was a broad statement but — but in — in Textile Mills, it was stated that if there is any ambiguity or doubt about the statute that the interpretation which reaches a practical result is the interpretation.

    Felix Frankfurter:

    Or you could create an ambiguity that reaches a very undesirable result.

    J. Franklin Fort:

    Your Honor, in picking the date on which the en banc court is constituted, we think that there will result certainty insofar as the judges themselves are concerned and as well as the litigants in the course of the completion of the case.

    J. Franklin Fort:

    Any judge who becomes a member of the en banc court will know that the work that he does on the case and will be accepted or considered that whatever — whatever his views are, they will be considered by the other judges and that his — his views will be considered in the final decision whether it be as a part of the dissent or a part of the majority.

    The rule in respect to district judges and in respect to panel judges clearly is that they shall be permitted to continue with the consideration of any case which is given to them to decide irrespective of whether they retire or not and that they can finish the judicial business and we feel that this rule which seems to be of universal acceptance should be accepted from the point of view of the en banc courts.

    Again, from the point of view of the litigants, as the court below pointed out, if the Court must be reconstituted every time there is a change in the constitution of the group of judges in the circuit, then questions will arise concerning re-argument, resubmission of briefs and it will no doubt delay the completion of the en banc consideration of the case.

    This is not a very powerful argument really because if the rule went as the Government would have it, it’s not a very serious matter to a judge sitting on a case to accommodate his retirement to the finishing of the (Voice Overlap).

    J. Franklin Fort:

    Well, Your Honor, I don’t accept that argument.

    I — I don’t think that a judge can feasibly accommodate his retirement to the completion of a case which is uncertain and I think this case is an excellent example of that because the en banc consideration began in December 1957 and wasn’t completed until February 1959.

    And there was a 15-month lag there during which — presumably on the Government’s theory, Judge Medina should have postponed his retirement.

    In addition to which if he remains an active judge as I read the statutes, he would have to take a full case load until the en banc case was — was decided and it would clearly interfere and impede retirements by the circuit judges which are encouraged.

    Now, the retirements on our theory would permit the judge to retire, to participate in the decision, a new judge to be appointed who in turn could take on new duties in the Court.

    Hugo L. Black:

    What do you understand is the main reason for having en banc theory?

    J. Franklin Fort:

    Well, that there are two main reasons, Your Honor that this Court has mentioned.

    One is to decide the important issues and the other is to resolve inter-circuit conflicts.

    Hugo L. Black:

    Inside the Circuit?

    J. Franklin Fort:

    Intra-circuit conflicts.

    Hugo L. Black:

    Well, if that is one of the reasons, does that cut against your argument in there?

    J. Franklin Fort:

    You Honor, no, I don’t — well, it will depend upon what the constitution of the en banc court was but on the Government’s rule, a judge can be dropped only but cannot be added.

    Whereas in the rule that we have vacating, we taking the date on which the Court has convened, you will have a — a court which presumably can take the case to a final decision with a recourse only to this Court after the decision is rendered.

    Now, we have — in the Second Circuit, we have had three changes.During the course of these en banc proceedings, Judge Medina retired, Judge Hincks has retired and Judge Friendly has been appointed.

    There is a vacancy, there has not been a substitute appointed for Judge Hincks.

    There is legislation pending which might result in two new justices being — judges being appointed to that circuit and if the case is remanded, the — the status of all of those judges perhaps will come into question.

    Hugo L. Black:

    But what I’m asking for was, if that’s one of the reasons that I should think probably or I’m not sure that we have the points decided by the judges who are to remain there after that time would come nearer, stabilizing the law so far as the intra-circuit situation is concerned.

    J. Franklin Fort:

    Well, that — I think that it is — is questionably, Your Honor, although it — as I say, it depends upon the way the votes of the judges are cast.

    Now, here we had a five-judge court below which was properly convened under the en banc statute and they were able to resolve the intra-circuit conflict.

    On the Government’s rule, Judge Medina would have been ineligible to sit on the decision and the conflict would not have been resolved.

    I don’t think that we can say that our rule is full proof but we think that it is — creates much more certainty and will avoid delays in the functioning of the en banc court.

    Earl Warren:

    Mr. Elman.

    Philip Elman:

    Mr. Chief Justice.

    Section 1 of Title 28, United States Code provides — the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight Associate Justices, any six of whom shall constitute a quorum.

    That language exactly parallels 46 (c), “a court en banc shall insist.”

    If 46 (c) is to be interpreted as meaning a court en bank shall include, but shall not be limited to all active circuit judges of the circuit, it would be very difficult not to read Section 1 of Title 28 as meaning the Supreme Court of the United States shall include, but not be limited to the chief justice and eight associate justices.

    Philip Elman:

    On the question of the disqualification of retired members of this Court to participate in cases which they heard before retirement, there’s no provision of the statute which says that they may not do so but there is a provision of the statute which provides affirmatively what duties — what judicial duties may be performed by members of this Court.

    That’s Section 294 (a) of the Code which provides that any retired chief justice of the United States or associate justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit including those of a circuit justice as he is willing to undertake by implication since the statute does not authorize the retired justice to be designated and assigned to sit in this Court, he may not do so.

    The same argument we submit, same line of statutory construction should apply to Section 46 (c).

    We do not think that this Court, unless it gives the words different meanings and different provisions can say that a court en — en banc shall consist of — of active circuit judges of the circuit who sit when the case is heard.

    Mr. Justice Burton as I recall retired at a time when there were cases that he had participated in it remained undecided.

    Now, that was true of Mr. Justice Minton and other justices who — who retired from this Court.

    You cannot say and it has never been suggested by anyone so far as we know that because he was — the retired justice was a member of the Supreme Court consisting of a chief justice and eight associate justices of whom he was one and therefore, could participate in the decision and cast a vote after he was retired.

    Retired judges of the Circuit — of the — of the Courts of Appeals maybe assigned judicial duties as they are willing to undertake.

    Section 28 U.S.C. 294 says that any retired circuit or district judge may be designated and assigned to perform such judicial duties in any circuit as he is willing to undertake.

    But that doesn’t permit him to be assigned to judicial duties in any circuit that the statute says he is incompetent to undertake, anymore than that — that would be true in the case of this Court.

    In respect to en banc proceedings, a retired justice — a retired judge is no different from a resigned judge.

    Now, there have been some citations given to Your Honors.

    We’ve discussed them in our brief and I’ll — and I — I think perhaps there’s been an indiscriminate proof of those cases and I will repeat.

    There is no case in which any judge, retired circuit judge has sat in an en banc proceeding after his retirement, no case.

    If he has retired before the en banc court was convened, there is no case in which the retired judge has sat.

    There is no case in which a retired judge has voted to grant rehearing en banc.

    There is a different problem as to denying rehearings en banc, they are participating in the deliberations.

    There is no case in any circuit in which a retired judge or an assigned judge has cast an effective vote to grant rehearing en banc.

    There is the related problem as to three-judge courts, the problem imposed by the Goldfine case numbered 36 — 396 pending our petition for certiorari.

    As I said, Section 46 (c) deals only with en banc proceedings and has nothing to do with three-judge decisions.

    The only question — the only possible question in those cases is whether — where a judge has retired after the hearing but before the decision, whether it is necessary that there’d be an additional formal written designation and assignment.

    There isn’t a question of his competency to sit.

    Of course a retired circuit judge may continue to sit if he is assigned.

    The only question is the — the formal one and no —

    Felix Frankfurter:

    Why do you call it formal because all of this is formal?

    Philip Elman:

    There’s a difference between — there is a —

    Felix Frankfurter:

    Why do you call it formal?

    Philip Elman:

    — difference between the question of power —

    Felix Frankfurter:

    Well that —

    Philip Elman:

    — which cannot be cured by the any piece of paper —

    Felix Frankfurter:

    Well —

    Philip Elman:

    — no matter by who signed and there’s the question of what kind of — what is meant by the word designation and assignment?

    Felix Frankfurter:

    But that assumes that designation is formal and Congress may have made — may have made the requirement as a piece of paper, the essential things.

    I don’t see that the argument is advanced by calling that formal and this power.

    Philip Elman:

    I withdraw the word formal.

    All I — all I’m suggest — all I’m saying is that as to three-judge panel, participation by a retired judge, there is no question or — as to his power, his right, his competency —

    Felix Frankfurter:

    None.

    Philip Elman:

    — qualification.

    Felix Frankfurter:

    None if the requirement of the statute is fulfilled.

    Philip Elman:

    That’s right.

    And the question is whether the statute requires a chief judge who — who sits alongside judge — whether chief — putting it concretely, whether Chief Judge Woodbury had to give Judge Magruder sitting in the very same case —

    Felix Frankfurter:

    Yes.

    Philip Elman:

    — and a piece of paper saying — saying, “I hereby assign you to sit in this case which — in which you’ve been sitting all along and — and in which you and I and — and the third judge (Voice Overlap) —

    Felix Frankfurter:

    But — but you answered Justice Black earlier that you don’t have to bother by policy considerations if the statute commands.

    Philip Elman:

    Precisely — of course and — and the question is what does a statute command in a three-judge —

    Felix Frankfurter:

    It says it should be designated.

    I don’t have to go beyond if Congress wants to make a red tape or a blue ribbon of requirement, I must vow to it.

    Philip Elman:

    But the statute doesn’t say that a designation shall consist of a piece of paper and to sit in that situation.

    Felix Frankfurter:

    But if you say that definition is satisfied because the — and presumably, he did that to him, that’s a different story again.

    But I don’t like to have cases of this technicality disposed of.

    And by technicality, I don’t need to use an invidious adjective.

    I simply say confining word.

    That’s what I mean by a technicality.

    Philip Elman:

    That problem is not presented in this case.

    I mentioned it only because counsel has — has referred to that situation which when I — I am hoping only to make the point that it’s distinguishable and raised it that way.

    Felix Frankfurter:

    Yes.

    But you also mentioned that in your briefs and has — has offered a great line to be drawn and —

    Philip Elman:

    Only to distinguish what is not before the Court.

    Felix Frankfurter:

    I don’t think I have to shut off while considering the whole nature of these problems or what to do with this conventional fact that retired judges are as a matter of fact, as a matter of practice, as a matter of design, fulfilling upon through of those who are really active judges.

    Philip Elman:

    Yes, in all situations except en banc situations that it’s the same.

    Philip Elman:

    The only question is one of the designation and assignment.

    As to en banc, we repeat, even the — even the — in a certified designation and assignment signed by all of the members of this Court and the — and the judicial conference and all the judicial counsels couldn’t possibly give judgment, namely the right to participate in this case en banc.

    Potter Stewart:

    Just before you sit down, Mr. Elman.

    Have you — have you — are you telling us that this precise situation has never arisen or —

    Philip Elman:

    I am telling you that this is the only case in which this problem was discussed.

    It is the only case in which counsel has objected to a — the participation by the retired circuit judge in the decision.

    There are — there are cases which we have mentioned which reach same factual situation, was presented but wasn’t referred to/ There are the two-third circuit cases involving Judge Maris as the Price case in the Ninth Circuit involving Judge Healey, nobody mentioned —

    Potter Stewart:

    And Hertzog in the Ninth Circuit.

    Philip Elman:

    Hertzog — Hertzog and Sawyer in the Ninth Circuit, different results, nobody discusses it, counsel don’t — doesn’t raise it.

    The Hertzog came here on petition for certiorari and wasn’t advanced.

    The curious thing, this is the first case in which the problem seems to have been —

    Potter Stewart:

    This precise question is what we are talking about.

    Philip Elman:

    Yes.

    And when the judge — when Judge Clark in his dissenting opinion here that first raised the problem —

    Potter Stewart:

    By this precise question.

    I mean the case of a — of a circuit judge who was concededly by any test was an appropriate proper member of an en banc court because he was an active circuit judge at the time of the convening of that court.

    Philip Elman:

    Yes, sir.

    Potter Stewart:

    But who’s subsequently and prior to the announcement of the decision, retired.

    That’s the precise question.

    Philip Elman:

    That’s right.

    That precise problem was discussed only in this case.

    Felix Frankfurter:

    And you don’t mean to leave on me the impression for the — stir the thought that this is so unique and unimportant, a trivial a situation, the writ — that the writ should be dismissed as improbably be granted.

    Philip Elman:

    I think — I think it’s important that the question be settled so that it doesn’t become a widespread practice.

    If it’s settled right, it’s unimportant.

    If it’s settled wrong, it — it would become very important.