This was acceptable to them, but their district is growing also. It takes a lot longer to try a case than it used to. I am sure you gentlemen are familiar with that. I could give you the reasons if you want to hear them, or if you have an interest in them. I don't want to intrude on the committee's time.

Under rule 11 and rule 16 of the rules of procedure which involve pretrial-the first thing the defendant does is come in with counsel and wants to look at the Government files. They ask for time. That increases the time.

If there is any suggestion of any mental instability, they ask for a psychiatric examination. That also increases the time.

Although the meeting time goes up, the courts are not creating the problem. The defendants are creating it.

I have been a judge for nearly 14 years and seen it happen. We tried four moonshine cases in 1 day. Fortunately, they don't have moonshine any more. They go into other activities."

Senator ALLEN. How many senior judges do you have in Kentucky? Mr. MOYNAHAN. We have one in Kentucky, Judge Gordon, in the western district.

That's another thing. We don't have any senior judges to draw on. We have had a few visiting judges for a short period of time, but it is hard to get a visiting judge to come.

The standards of Judicial Conference require that a visiting judge stay for 30 days. You can get a judge to come for 30 days if the races are on, but you can't get him to go places if there are no race tracks there.

I don't say that disparagingly. It's just one of the facts of life. Senator ALLEN. Did I understand you to say that you have cut down on the number of cities in which you hold court?

Mr. MOYNAHAN. We originally had eight courts, one of the highest number of places for holding court in the United States.

Since I was here the last time before this subcommittee, we have cut one off in Jackson. We're now down to six. But six is still a large number of places to hold court and requires extensive travel. Our judges travel all the way from the north end of Kentucky at Covington to Pikeville, Kv.. which is at the intersection of Kentucky and West Virginia and Tennessee.

Senator ALLEN. You would not increase the number of cities in which you hold court?

Mr. MOYNAHAN. No. We have bared it to the bone. We have some 60 counties over half the geographical area of Kentucky-in the eastern district.

Senator ALLEN. Creating this number of additional judges, would you have enough courtrooms on which to try cases?

Mr. MOYNAHAN. We don't have enough now, but we make do. We don't have a courthouse in Kentucky that has more than one court

room.

They are getting ready to build a second one at Lexington. We have a new building at Frankfurt which is 40 miles away. We are utilizing that. Every place we hold court has a courtroom.

We are having a problem now with the Kentucky Court of Appeals because they don't have any place to hold court at all. They asked if

they could use our courtroom when we're not there, and we're trying to cooperate with them.

Senator ALLEN. I think it appropriate that we might speculate on the number of additional courtrooms that might have to be built under this bill and the Judicial Conference that would add something over 100 judges.

I am wondering if that is not going to create a necessity for additional Federal buildings throughout the land.

Mr. MOYNAHAN. It may have that effect eventually, but we have held court in courty courthouses throughout Kentucky. I held court. in the county courthouse at London for 1 year while they were remodeling the Federal building.

You give us the judgeships, and we'll find some place to hold court. Senator ALLEN. In addition to the trend for more litigation and lengthy litigation under the old set of laws, Congress in recent years completely submerged the district courts by creating literally dozens of additional causes of action. Is that not correct?

Mr. MOYNAHAN. I hate to say that in this forum, but that is exactly

correct.

Senator ALLEN. Well, I'm saying it in this forum.

Mr. MOYNAHAN. That's correct, sir.

For instance, when I went on the bench, gun legislation was limited to machineguns. Now we have scores of gun laws. I'm not saying they're not good laws. I don't mean that. I support such legislation. I think it's well-grounded. But it has created an entirely new field; litigation we must handle.

The 2254 proceeding, post conviction attack upon sentence, and the 2255 procedure-2254 on State sentence and 2255 on Federal sentence-in effect makes the district courts a high court of appeals. I'm not saying it's not good legislation, but it is completely new. The Coal Mine Health and Safety Act is new. The black lung is new. Social security appeals were virtually unknown. They have all come on in the 13% years that I've been on the bench. It is all good legislation, but it all has to funnel through the same system.

Between 1938 and 1969 we did not get a single new judgeship in Kentucky. In 1969, we got the bill passed after 4 years. And it took 2 years and 4 months to get it filled.

Senator ALLEN. You need some relief. There's no doubt about that. Mr. MOYNAHAN. We're always running too far behind.

Senator ALLEN. I think I may be partly responsible for the EEOC burden.

The bill as originally introduced, was changed from the Commission being merely advisory to having enforcement powers. The bill provided for handling all of it in-house. Now it has been transferred to the district court.

I discussed the matter for some length of time until a compromise was worked out where it would be placed on the courts. I'm convinced that's taking up a whole lot of your time.

Mr. MOYNAHAN. The Coal Mine Health and Safety Act is a case in point.

If the defendant doesn't like the administrative appeal, he is entitled to go district court and have a jury trial de novo, regardless of the

amount.

Senator FORD. Could I add one thing, Senator, in this conversation Add 1,100 pending cases to the total that the judge has given you which makes it almost 4,500 pending cases in the State.

But his figures have related just to the eastern district alone. I think there are 1,099 as of January 1 in the western district which were pending.

We are talking about close to 5,000 pending cases.

Senator ALLEN. Senator Ford, this is the only request that you and Senator Huddleston are going to make with respect to Kentucky as far as district courts are concerned. Is that correct?

Senator FORD. That is correct.

Senator ALLEN. Thank you.

Senator MCCLELLAN. Counsel has a few questions.

Mr. WESTPHAL. Judge Moynahan, just for our information here. could you explain briefly how your court handles these black lung cases? Are they reviewed on an administrative record, or are they disposed of in a factual trial before the judge?

Mr. MOYNAHAN. They are reviewed on an administrative record. The record is voluminous when it reaches us.

Sometimes after an examination of the record, either on motion of the claimant or the court's motion, when you attempt to decide the case, we find the record is incomplete and has to be remanded back to the hearing counsel for the introduction of other evidence.

Suppose a man shows up and his condition is worsened?

Mr. WESTPHAL. I understand that.

Do you make any use of your magistrates for reviewing the black lung cases to see if the record is one which has to be remanded for further evidence or whether it is one that can be presented to the judge for determination?

Mr. MOYNAHAN. Yes, sir. We do that now. But we could only make that after the decision in Mathews v. Weber in 1976, because until that time the sixth circuit in Ingram v. Richardson, Webb v. Richardson. Dye v. Cowan, Wedding v. Wingo, and Ellis v. Buchkoe said we couldn't do it.

Mr. WESTPHAL. I understand that.

Mr. MOYNAHAN. I might say they were caustic in their criticism of me, but the Supreme Court said I was right. I have to get that in the

record.

Mr. WESTPHAL. Congress passed a bill in the last Congress, I think Public Law 94-577, which greatly expanded the jurisdiction of magistrates in which the statute in effect countermands Wedding v. Wingo and many of these other cases that were limitations upon your use of magistrates.

In Kentucky, you have one full-time magistrate in the eastern district now.

Mr. MOYNAHAN. We now have two, sir. Only recently have we had the second.

Mr. WESTPHAL. And is it your intention to make greater use of the magistrates in this area of processing these black lung claims in order to expedite their disposition?

Mr. MOYNAHAN. Yes, sir. We're doing that. I keep a briefcase in the trunk of my car with three or four records in it. Instead of read

ing the evening paper in the length I would like, I read one of those every night.

It is like anything else. The easy ones are quick to decide. It's the hard ones. You pick the ripe peaches and then work over the others. Mr. WESTPHAL. I notice that in the western district, and I appreciate you do not sit in the western district, but the statistics indicate that the western district makes much less use of the magistrates than you do in

your court.

Mr. MOYNAHAN. I'm not familiar with their situation.

Mr. WESTPHAL. The caseload in the western district is much less than the caseload in your district is it not?

Mr. MOYNAHAN. Yes, sir. Traditionally it has been, although they have had substantially the same number of judges we have had until the last leigslation.

Mr. WESTPHAL. Thank you, Mr. Chairman. I have no further questions.

Senator MCCLELLAN. Judge, do you have any further comment you want to add to your testimony?

Mr. MOYNAHAN. I appreciate deeply the time you have given me here today. I hope I haven't worn out my welcome. I realize my testimony has been a little protracted.

Senator MCCLELLAN. You have given us very persuasive testimony, I may say.

I am sure the committee will give it very sympathetic consideration. Mr. MOYNAHAN. We thank you for your consideration.

Senator MCCLELLAN. Thank you, sir. Our next witness is Senator Abourezk.

TESTIMONY OF JAMES ABOUREZK, U.S. SENATOR FROM SOUTH DAKOTA

Senator ABOUREZк. My thanks to you and members of the committee, Mr. Chairman.

I am here to introduce Judge Fred Nichol, the Chief Federal Judge of the South Dakota District.

Senator McGovern was here just briefly and had to get back to another committee. They are reporting out a nominee today, and he had to be there to vote on it. Otherwise, he would have been here.

I want to say that I am cosponsoring with Senator Metcalf the amendment to include circuit judges. I would hope that the committee, and I will argue that point as a member of the Judiciary Committee as well, would include the circuit judge vacancies in this bill. I think it would speed matters up totally.

I think the controversy surrounding the fifth and ninth circuits could be dealt with as a separate matter since the amendment just deals with getting additional judges.

I would certainly hope the chairman would consider that.
Senator MCCLELLAN. We will try to work it out.

In view of the urgency and the great need for more district judges, I want this bill to go through. It is long overdue. We want to get these district judges authorized and appointed as soon as possible to

try to improve our system of justice. I think it is imperative that we move on this.

The other is worthy of our consideration and it will be considered in the near future.

Senator ABOUREZK. I agree with the chairman.

As you know, I cosponsored the original judgeship bill early with the chairman, in spite of the fact that South Dakota's third judge was not included on that, so I understand the urgency.

Senator MCCLELLAN. We intend to do just what we have done as soon as we got the conference report. We intended to offer it as a substitute, which we did, as an amendment to the original bill.

Senator ABOUREZK. I want to introduce Judge Fred Nichol who is both a personal friend of mine and Senator McGovern's. He is a longtime chief judge of the South Dakota District Court.

He has served as chief judge 11 of the 12 years he has been on the Federal bench out there. He has been an outstanding jurist and has handled every case with dispatch. I want to let him complete the record then on the testimony, and I am very proud to introduce him. Senator MCCLELLAN. Are there any questions of Senator Abourezk? [No response.]

Alright. Judge, we welcome you and are glad to have your testimony. Senator Abourezk, your prepared statement will be received for the record at this point.

[The prepared statement of Senator Abourezk follows:]

PREPARED STATEMENT OF SENATOR ABOUREZK

Mr. Chairman, it gives me great pleasure to introduce the next witness before this Subcommittee. The Honorable Fred Nichol has been district court judge for the district of South Dakota since 1965; for eleven of his twelve years on the bench he has served as chief judge of the district court in my home state. Judge Nichol has a reputation as an able jurist and an outstanding trial judge. I know from personal experience, as a lawyer appearing in his court, that this reputation is well-deserved.

Judge Nichol is also one of the hardest-working judges I have known, and that brings me to the reason why he and I are here today. As federal caseloads steadily rise, we no longer can continue to pass the buck and ask men and women such as Judge Nichol simply to "work a little harder." We in the Congress have a responsibility to the people of this country to provide for the fair and efficient administration of justice. Congress has begun to address the situation, but we must be mindful of the impact of piecemeal legislation designed to improve the quality of justice.

An example is provided by enactment of the Speedy Trial Act. That legisla tion provides a timetable for the disposition of criminal cases, to ensure that an accused receives the speedy trial required by the Sixth Amendment. I applaud this improvement in the law. However, its implementation will create problems for districts with heavy criminal caseloads. In addition to improved court administration, additional judges will be needed in those districts in order to meet the time requirements of the Speedy Trial Act.

The District of South Dakota presents a classic example of a federal court badly in need of judicial help due to its huge criminal caseload. Judge Nichol will more fully describe the situation in South Dakota which prompts the need for another district court judge. I would like to mention a few facts, however. that the members of this Subcommittee should bear in mind as they listen to his remarks.

During the fiscal year 1976, the District for South Dakota ranked Tenth in the nation in total criminal case filings. The results largely from the fact that a large portion of our State is Indian reservation land, and federal law vests jurisdiction over crimes committed on a reservation in the federal courts. Thus many of the serious criminal cases that would be handled by State systems elsewhere must be handled by the Federal system in South Dakota. The resulting high Federal criminal caseload does not mean that South Dakotans are