COURT SYSTEM REFORM A PRESSING PROBLEM

JUSTICE," said Daniel Webster, "is the great interest of man on earth." But the focus of interest shifts. In Webster's day it centered on the courts; trials were closely watched, judges were appraised, lawyers had their bands of knowing followers. The present interest in justice is spotty. It concentrates on the detection of criminals, on new statutes, and on the public-welfare services encompassed by the phrase "social justice." The courts are so neglected by the educators, the press and the public that reporters covering a rare sensation, such as the Sheppard trial, find that they have to pause for parenthetical explanation of the simplest procedures and the oldest rules of evidence. But no government will ever be much better than its courts. No system of welfare services, no multiplication of statutes or policemen can ever substitute for the ancient function in which society reflects dhe cosmic order, however dimly, by the dispensation of justice between man and man.

While the public's back has been turned, a handful of lawyers and laymen have been trying to improve the courts of the U.S. A leader in this fight is Chief Justice Arthur T. Vanderbilt of the New Jersey Supreme Court, a distinguished jurist and the head of a state court system that has risen from one of the nation's worst to one of the best in ten years. Judge Vanderbilt notes that although some jurisdictions have made great improvements in the last two decades, in others the judges are substandard, procedures are unnecessarily complex, and court administration is inefficient. In a brilliant series of lectures at the University of Virginia, to be published in book form later this year, Judge Vanderbilt says: "It is in the courts and not in the legislature that our citizens primarily feel the keen, cutting edge of the law. If they have respect for the work of the courts as it affects them, their respect for law will survive the shortcomings of every other branch of government; but if they lose their respect for the work of the courts, their respect for law and order will vanish with it, to the great detriment of society."

To achieve and maintain this respect, Vanderbilt urges action on three fronts:

1) Improving the quality of judges.

2) Simplifying court procedures.

3) Cutting delay by better management.

THE MEN OF THE COURTS The history of the English constitution is largely one of struggle toward an independent, qualified judiciary (in the Magna Carta, King John covenanted that "we will appoint as justices . . . only such as know the law of the realm and mean to observe it well"). The men who shaped the governments of the U.S. and its states were acutely conscious of the importance of a judiciary free to act without fear or favor toward the executive and legislative branches. In the post-revolutionary period nearly all judges--state as well as federal--were named by appointment and got life tenure "during good behavior."

In the mid-19th century a change occurred that Vanderbilt ascribes to the Jacksonian revolution, with its premise that all men are not only created equal but remain equal throughout life. While Andrew Jackson, once a judge himself, conceded that judges needed special qualifications, his followers took a more liberal view: jurors, lawyers and judges, all being men, all were considered equal. As a result of this thesis, the trial judge in Maryland and Indiana to this day must instruct the jurors in criminal cases that they are judges not only of the facts but of the law. An outgrowth of the equalitarian theory was a quantum jump in the number of men considered qualified for the bench, and pressures built up to rotate judicial offices. The result: popular election of judges for short terms.

The full effect of the Jacksonian idea was felt in 1846, when New York State switched to an elective judiciary--and paved the way for the reign of Boss Tweed. Other states followed suit, and as Judge Vanderbilt says, the "judges campaigned for judicial office in the hustings with the other candidates of the political parties from sheriff to hog reeve." Today all the judges of 36 states are elected political officers.

A knowledge of politics is by no means a disqualification for the bench.* Said Justice Henry T. Lummus of the Massachusetts Supreme Court: "There is no certain harm in turning a politician into a judge. He may be or become a good judge. The curse of the elective system is the converse: that it turns almost every judge into a politician." The elected judge, if he wants to be reelected, must make all the commitments of a politician. New York, a pioneer among the states for elective judiciaries, will not soon forget the tapped telephone conversation between Thomas Aurelio, candidate for Supreme Court justice in 1943, and Gangster Frank Costello. Gushed Aurelio: "I want to assure you of my loyalty for all you have done. It's undying." Aurelio was elected and is still serving. Politics has impaired the dignity of the courts in many ways short of association between judges and gangsters. In 1948 George Maxey, then chief justice of the Pennsylvania Supreme Court, ran for delegate to the Republican National Convention, in defiance of the Bar Association's canons of judicial ethics. When a political opponent, Will Leach, criticized Maxey, the chief justice publicly replied: "I refuse to enter into a personal controversy with him because no self-respecting man engages in a physical contest with a skunk or a mental contest with a moron ... If the share of the milk of human decency which the Creator allotted to Leach was churned, it would yield nothing but Limburger cheese."

Arthur Vanderbilt eloquently describes the qualities that judges should have: "Judges learned in the law, not merely the law in books but, something far more difficult to acquire, the law as applied in action in the courtroom; judges deeply versed in the mysteries of human nature and adept in the discovery of the truth in the discordant testimony of fallible human beings; judges beholden to no man, independent and honest and--equally important--believed by all men to be independent and honest; judges, above all, fired with consuming zeal to mete out justice according to law to every man, woman and child that may come before them and to preserve individual freedom against any aggression of government; judges with the humility born of wisdom, patient and untiring in the search for truth, and keenly conscious of the evils arising in a workaday world from any unnecessary delay--judges with all these attributes are not easy to find, but which of these traits dare we eliminate if we are to hope to attain evenhanded justice?"

Vanderbilt urges that formal standards be set up stating the necessary qualifications for judges and that candidates for judicial office be selected by bar and lay leaders, none of whom hold public office. A list of qualified men can be drawn up, and the executive or the legislature required to choose from that list. After being appointed, judges would run for election only against their records on the bench, i.e., no other candidates would appear on the ballots, which would be simply phrased: "Shall Judge Blank be retained in office?" This system has been recommended by the American Bar Association, but so far almost all the states have ignored it.

ENDING THE SPORTING THEORY

Vanderbilt is in complete agreement with the late John Wigmore, dean of the Northwestern University Law School, who criticized and derided what he called "the sporting theory of law." Scoffed Wigmore: "To require the disclosure to an adversary of the evidence that is to be produced would be repugnant to all sportsmanlike instincts. Rather permit you to preserve the secret of your tactics, to lock up your documents in the vault, to send your witness to board in some obscure village, and then, reserving your evidential resources until the final moment, to marshal them at the trial before your surprised and dismayed antagonist, and thus overwhelm him."

But surprise is only one ploy under the sporting theory. Another is to take advantage of technical rules of pleading, many of which grew out of historical situations that have no counterparts in modern life.

After a long and little reported fight, great strides were made in improving procedures in the U.S. federal courts. Judge Vanderbilt says that the 1938 Federal Rules of Civil Procedure are "models of simplicity and flexibility." So far, seven states have almost entirely adopted the federal rules, while twelve have followed to a lesser extent.

Under the new federal rules a trial becomes more an orderly search for truth, less a tournament of wits. Key to the new system is the pretrial setup, which permits the free use of depositions, interrogatories, inspections and examinations, all aimed at finding the facts on which the litigants are agreed and at defining the areas of disagreement. At the pretrial conference both plaintiff and defendant state what they expect to prove in the trial, thus eliminating tricky surprise. The judge dictates a pretrial order that supersedes the original pleadings and defines the questions at issue between the parties. Says Vanderbilt: "No longer does the trial judge have to fumble through the pleadings at the trial to find out what the case is all about ... He has before him in a pretrial-conference order a complete outline of the course that the trial will take; he is master of the situation from the outset to the conclusion of the trial."

As used in Judge Vanderbilt's New Jersey, the pretrial conference has shortened trials by from a third to a half. Vanderbilt notes--and condemns--the tendency of judges in some jurisdictions to use the conference to force settlements, but he contends that even without such coercion three out of four cases are settled soon after the pretrial conferences. Reason: the conference gives each litigant knowledge of his own weakness and his adversary's strength.

Vanderbilt says that with the various pretrial procedures at a judge's disposal there is no reason why, having also heard the evidence and the arguments at the trial, he cannot make his decision at once in cases without a jury. Says Vanderbilt: "He will never know more about it than he does at that time. The moment for decision has arrived, before other cases intervene to dull and blur his grasp of the pending case."

Then Vanderbilt adds: "How often have you and I known judges burdened with so many undecided matters that they were exhausting their intellectual effort in determining which case to dispose of first and devoting what little strength they had left to telling all and sundry how overworked they were?"

DELAYS THROUGH MISMANAGEMENT

"So far as I know," says Vanderbilt, "the courts are the only nationwide or statewide businesses that have ever attempted to function without any administrative machinery." The federal judiciary was dependent on the chief litigant in its courts--the Justice Department--for the conduct of all its business affairs, from buying pencils to presenting the judicial budget to Congress, until a 1939 law improved efficiency in the federal courts by setting up an administrative office.

Mismanagement, or rather nonmanagement, of the states' judicial systems is the main reason for delay in the courts. In Queens County, N.Y., for example, it now takes 49 months for a jury case to come to trial in the state courts. Justice so long delayed can mean justice denied, as litigants die and witnesses disappear.

One chance for administrative improvement lies in the assignment of judges. Explains Vanderbilt: "It is intolerably bad business administration to have some judges overworked while others sit by half idle . . . This means that someone must be given the power to assign the trial judges to those courts where they are most needed." The obvious person to be given this administrative power, says Vanderbilt, is the top judicial officer in each state (in most cases, the chief justice).

If the chief justice is to have administrative responsibility in addition to his judicial duties, he must have full-time professional help. Only 13 states (plus Puerto Rico and the District of Columbia) now have such offices of judicial administration. An example of their work is seen in the weekly summary of reports from every New Jersey judge, listing hours spent on the bench, cases and motions heard, and decisions reserved. These reports on individual performance are distributed to all judges. The effect on indolent judges when their laziness is thus exposed has, Arthur Vanderbilt says tersely, been "truly remarkable."

The fight for improved court systems is not one that can be--or should be--confined to the legal profession. Judge Vanderbilt candidly says that "where cures have occurred, they have generally been effected under the impetus of a popular revolt of laymen against the quaint professional notion that the courts exist primarily for the benefit of judges and lawyers and only incidentally for the benefit of the litigants and the state." Against the members of the bar and the bench who stand in the way of reform, Vanderbilt issues a scathing indictment: "I am convinced that the criminals, the gangsters, the corrupt local officials, the Communistic subversives who would undermine and overthrow our Government with bloodshed and terror such as we have seen abroad . . . are no more dangerous to the country at large than the judges [and lawyers], many of them amiable gentlemen, who oppose either openly or covertly every change in procedural law and administration that would serve to eliminate technicalities, surprise, and undue delay in the law simply because they would be called upon to learn new rules of procedure or new and more effective methods of work."

* Arthur Vanderbilt was once the Republican leader of Essex County.

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