We have 164 full-time and 323 part-time magistrates. They outnumber the Federal judges now. Last year the magistrates conducted or presided over the trials of 103 criminal offenses, and they had 83,000 other matters.

I would like your reactions, Senator Tydings, whether or not there is a case for saying: let's take diversity first, sharply limit that or phase it out, and then postpone the implementation of a magistrate's

bill.

Shouldn't we wait to see how terminating or curtailing diversity works? Shouldn't we wait to see how the magistrates new reform bill of last year works? Then-only then we can make this very radical change in the jurisdiction of the magistrates.

Mr. BUTLER. Answer yes or no.

Mr. TYDINGS. Would you please repeat that question.

Mr. DRINAN. I forgot it.

Mr. TYDINGS. Let me address myself first to the diversity issue and then to the second-rate justice argument that you made.

With respect to diversity, I think diversity is an important step to improve the efficiency of the Federal system. I think, you know, the reasons for diversity, historically there was the fear of plaintiff's counsel and

Mr. DRINAN. I know that, yes.

Mr. TYDINGS. They do not hold water. And I think the issue of diversity should be handled on its merits, without respect to the magistrate's proposal. The magistrate's proposal stands on its own feet, just as diversity does.

Now, let us assume for the sake of our argument here that you would adopt the diversity proposal, which goes farther than the one which I recommended, or one which our committee recommended, and you reduced the Federal caseload by 20 percent, say. Let's just take a figure out of the air.

We live in a world where litigation is growing with an exponential type of growth. Litigation, because of the education of our people, and I think partly because of the improvements of judicial facilities, judicial systems in our States, partly because of the improvement of the Federal judiciary system, you have seen a litigation explosion in the last 10 or 15 years which was almost unbelievable in numbers.

And I see no reason to believe or no fact to indicate that the litigation explosion is going to taper off. So regardless of what you do about diversity, I think that the magistrates as an important part of providing better justice to individuals in the Federal system are needed.

Now, with respect to your comments-which I felt were unfair— about the competency of magistrates, the selection of magistratesand I might say, we studied this, Mr. Drinan. The issue arose when we drafted the original legislation as to whether or not we should permit magistrates to be selected by U.S. Senators, or whether or not it would be better if they were appointed by Federal judges.

And we elected the latter. We felt we could get better quality, better justice, by having the magistrates selected by the panel of the Federal district court. Insofar as humanly possible we kept politics completely out of their selection.

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Now, we think we have a very fine Federal judicial system, but you and I know that except for those States where the Senators have voluntarily adopted merit selection, the appointment of a Federal judge is an appointment which relates very closely to the heart of the U.S. Senator, and politics sometimes does play a role.

I challenge the statement, whether it's made by the ACLU or anyone else, that the magistrate system has not improved the standard of justice according to those who are poor and indigent in our country. I further think the reforms which are before us today will improve them even more than they have been improved to date.

Now, the language of the Senate report was unfortunate because it might have given the impression that the magistrates were to be utilized only by those who didn't have the money to go forward in district court. Actually, I think what they meant to say is that many litigants and I have seen this, particularly in the last 7 years, since I have been an active trial lawyer-many litigants if they are delayed and denied the opportunity for a hearing for a long time, even though they have a meritorious cause, because they do not have the resources of a large multinational corporation, are forced to throw in the towel. And I pointed out one district court where I know you couldn't get a civil case tried after the Speedy Trial Act was passed.

So I think that the reform of the Magistrates Act will improve the rights and improve access to justice to those who need it the most. Mr. DRINAN. Well, I mean, you can repeat what you said before, but there's no information. The fact is that the poor and those with smaller cases are relegated to this separate court, that's all.

Mr. TYDINGS. No; but they're not relegated to this separate court. Mr. DRINAN. How come 95 percent of the criminals defended, quote, "selected," unquote, freely? Senator, it really is that they have no other option. Either they are going to be denied bail and go to jail for a year or a month, or accept the magistrate. If you have a civil case. you can wait for 3 or 4 years without any money whatsoever. Or you can, quote, "voluntarily," unquote, accept some justice that you get in a month or so.

Mr. TYDINGS. Mr. Drinan, counsel representing a defendant accused of a crime is going to be bound by his oath to represent that client in the best way possible.

If he feels that in any way the magistrate is not competent to give a fair trial, he's not going to consent to be tried before a magistrate, any more than he's going to consent to a judge only trial rather than a jury trial, if he doesn't think the judge is going to be fair.

I feel very strongly that you're mistaken in your position. Mr. DRINAN. Well, I'm not mistaken, Senator, on the fact that 95 percent of all these lawyers look at their oath and look at their clients. and they say, "Take a magistrate." So that's the fact of the matter. I just can't believe that this is what the Founding Fathers intended when they set up the majesty of the Federal court.

Mr. RAILSBACK. Would the gentleman yield?

Mr. DRINAN. Yes. Mr. Railsback, I yield to you now for your 5 minutes.

Mr. RAILSBACK. Well, I thank the gentleman for yielding. But I have to say that I do not believe that it necessarily follows that the fact that 95 percent of the defendants have opted to go before magis

trates necessarily means that there is any kind of undue influence or undue pressure or anything else except maybe a good judgment.

In other words, maybe they think they're going to get better justice by going before a magistrate.

I would also like to offer this as my opinion before I ask some questions. We have a serious problem. We have a Speedy Trial Act which has resulted in putting some criminal cases on the docket before some other work that has traditionally been rather expeditiously handled by the district court.

We have a tremendous increase in the district court backlog and caseload, which means that perhaps there is not justice being meted out by the Federal district court in all cases. Maybe they don't have the resources, maybe they don't have the time.

So I'm inclined to agree with Joe Tydings that it may be they're getting as good as or better justice going before a magistrate that might be able to devote more time to their cases.

But let me ask you a couple of questions. I am wondering what would be the effect of permitting a trial de novo on certain questions certified by a defendant in the district court.

And I wonder if either of you know what has been our experience under the other magistrate law that has permitted certain questions to be raised de novo. I wonder in how many cases de novo questions have been raised by a party that has gone before a magistrate, either in pretrial motions or whatever?

Mr. MARGOLIS. Are you talking about civil or criminal cases?

Mr. RAILSBACK. Well, let's-you know, I would really like to kind of separate the two, but again, get an answer in respect to both.

I guess what I'm asking is, how much trouble de we cause in the interest of justice by permitting a trial de novo as to certain specific objections raised before a magistrate at the district court level?

Mr. MARGOLIS. I would oppose a trial de novo, because I think that really guts the bill to some extent. We have been operating presently in the criminal area where there is an appeal on the record to the district court judge.

As a matter of fact, there are very, very few appeals to the district court judge from criminal proceedings held by magistrates.

Mr. RAILSBACK. That's what I'm interested in. Do you have access to those figures?

Mr. MARGOLIS. I would say less than 5 percent of the criminal matters. Probably, less than 1 percent of the criminal matters handled by U.S. magistrates.

Mr. RAILSBACK. Might I just suggest that it would be very helpful to our subcommittee if we could get the exact figures.

Mr. MARGOLIS. I think the administrative office of the U.S. court could provide you with the exact number. As a matter of fact, I have had no appeals from any criminal trial that I have held in the past 6 years.

Mr. RAILSBACK. I think that's kind of significant.

Mr. BUTLER. You're too easy on them.

Mr. MARGOLIS. I mete out justice, sir.

Mr. BUTLER. Excuse me.

Mr. RAILSBACK. I'm inclined to agree to your response to Father Drinan as far as the selection or appointment of magistrates goes-at least to a degree, anyway.

In other words, even though some members of the Senate have done a very good job setting up review panels and so forth-I certainly don't see how in the past we can argue with any great strength or validity that it's been a good method of selection of our Federal district judges.

I'm wondering what would be your reaction if the Congress and if the Senate, even unilaterally, agreed to set up some kind of review panel that may involve members of the private bar, and members of the judiciary it's electing.

I wonder if there wouldn't be merit if we do that in the future for district court judges to aid them in magistrate selection. I wonder if that wouldn't be a very real possibility.

Mr. TYDINGS. You mean merit selection boards for magistrates?

Mr. RAILSBACK. Let me be more specific. Suppose you have a district court judge that is able to appoint a magistrate, under whatever criteria. Suppose then that the district court judge were able to draw on some kind of a review panel or an endorsing panel, just as some senators now have set up. Wouldn't that be a possibility?

Mr. TYDINGS. That certainly is something that could very well be considered. I don't have an opinion on it at the moment, but I certainly, as you know, highly endorse merit selection as it relates to U.S. district judges.

I think one point which you made, I certainly agree, Mr. Railsback, and that is that the mere fact that 95 percent of criminal defendants elect to be tried by a magistrate doesn't mean that they're automatically getting second-class justice, or there's something wrong with the system.

I can tell you that I had a matter this summer where I desperately needed a ruling up or down, so I could go up on appeal by a U.S. district judge. I happened to represent the United Mine Workers of America against the bituminous coal mine operators in a matter involving the health and pension trust payments for over 80,000 persons all throughout the coal mining areas, and we could not get a hearing.

I could not-I would have given anything to have an opportunity to have that hearing before Magistrate Margolis so I could get an appealable order one way or the other, but I couldn't. And ultimately the question became moot, and I think that there were thousands of miners and their dependents, unfortunately, who were deprived of benefits which they might have received had I been able to find a judge in the U.S. district court who would give us our day in court.

Now, justice delayed is just as much justice denied as a poor judge's bad decision. The fact of the matter is that when you have a system where delays are commonplace in the civil area, as they are in the Federal judicial system, I think that improving and strengthening the magistrate system here provides far greater justice with certainty than any other reasonable proposal which you have before you, or are likely to have before you.

And I would like to accent that point.

Mr. RAILSBACK. I think I have just one last question.

With respect to diversity, we had a member of ALTA, which is the trial lawyers association, indicate that one problem that he saw, was that if we were to eliminate diversity jurisdiction for an in-State plaintiff, without affecting an out-of-State defendant, such as an in

surance company, we might create an unjust situation. For in certain cases the defendant would be able to remove and might be prompted to remove by reason of the fact that there are substantial backlogs in the Federal district court, whereas the plaintiff might have been able to get a much speedier trial by filing in State court.

In other words, he pointed out that there had been kind of an upand-down cycle as far as delays. Sometimes the delays are longer in the Federal district court, whereas in some States they may be longer in the State courts.

So he pointed out that what you may be doing unintentionally is depriving a plaintiff from getting a speedier trial in a Federal court where the backlog may not be as lengthy, by preserving the right of the defendant to remove in order to delay. So I'm wondering if we shouldn't consider abolishing diversity altogether.

Mr. TYDINGS. I was going to say that's an argument in favor of abolishing diversity altogether.

Mr. RAILSBACK. I should point out he didn't agree with that.

Mr. TYDINGS. I'm sure he wouldn't. But as a personal point of view, I favor the abolition of diversity altogether.

I think that the State courts have risen in stature greatly in the last decade. The overall justice handed out is such that the State courts are just as competent to handle what are now diversity matters as the Federal system.

Mr. RAILSBACK. That's all. Thank you very much.

Mr. TYDINGS. That's only my personal opinion, and not the ABA's. Mr. RAILSBACK. Thank you very much.

Mr. DRINAN. I want to thank both of you gentlemen for appearing and for your very helpful testimony.

Mr. TYDINGS. Thank you very much.

Mr. MARGOLIS. Thank you very much.

Mr. DRINAN. Now I'll call forth the next witness, Ms. Pamela Horowitz, who is legislative counsel for the American Civil Liberties Union here in the Washington office.

Mr. DRINAN. Ms. Horowitz, you may proceed as you desire. Your written statement, without objection, will be made a part of the record. TESTIMONY OF PAMELA S. HOROWITZ, LEGISLATIVE COUNSEL FOR AMERICAN CIVIL LIBERTIES UNION

Ms. HOROWITZ. Thank you, Mr. Drinan, Mr. Railsback.

As you know, the American Civil Liberties Union shares this subcommittee's concern about the judicial overload problem. Our interest in the two sets of legislative proposals before you is twofold.

First, to insure that those litigants who have a demonstrable need for the unique service of article III courts have those courts available to them.

And second, to seek ways in which to reduce the existing overload burden.

Accordingly, we have submitted a statement in which we support this subcommittee's efforts to eliminate or reduce diversity jurisdiction, but oppose strongly the magistrate reform legislation.

The proposals with respect to diversity do not raise civil liberties issues, and would be extremely effective in reducing the caseload bur