In 1965, the Subcommittee on Improvements in Judicial Machinery of the U.S. Senate Committee on the Judiciary, led by its chairman Senator Joseph Tydings, launched a wide-ranging examination of federal judicial operations, which included hearings to investigate the shortcomings of the U.S. commissioner system. Judge Theodore Levin was noteworthy as one of the few witnesses to come before the subcommittee to advocate reducing the responsibilities of commissioners rather than elevating their status and duties. Levin argued that non-Article III judicial officers would not be capable of providing the same quality of adjudication as would those judges appointed by the president and confirmed by the Senate.

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Judge Levin. May I be so presumptuous, Mr. Chairman, as to suggest that I don’t believe that there ought to be created a tier of judges in the Federal system on the trial level. I am not unmindful of the problems in districts containing major Federal enclaves— but in general, I don’t know why a man who faces a 6-month penalty ought to get a different kind of justice than a man who faces a 2-year penalty. I don’t know why a man who is sentenced to 6 months by a judge, with the consequence of dislocation of his family and his business, ought to have that judgment by a judge who obviously doesn’t have the experience and the responsibility of a U.S. district judge....

Senator Tydings. Judge Levin, ... if the post of U.S. commissioner were sufficiently upgraded, given the standard of a full-time lawyer, the same background, let’s say, as a referee in bankruptcy, the same requirements as U.S. district judge, just on the point of competency, do you think he would be competent to handle the jurisdiction which is presently ... given to U.S. commissioners, plus a broadened petty offense jurisdiction and a broadened misdemeanor jurisdiction?

Judge Levin. Well, I think being a judge requires a lot of judgment and experience, not only in criminal matters but in all matters....

I am opposed to the idea of having a commissioner, whether he is called a commissioner or judge, handle criminal matters alone....

You acquire a judgment, you acquire a concept of the whole idea of justice, and I don’t think that a man who is to hear misdemeanor cases no matter how well qualified he may be or a graduate of the best law school, is as qualified as a man who is appointed by the President, confirmed by the Senate of the United States, such a man has the awesome responsibility that goes with the job and who comes to a realization if he has any humility in his soul, that the one who is up for the possible maximum punishment of 6 months deserves the same full consideration as does a man who has committed a more grievous crime and is facing a 10-year penalty, because a mistake in judgment may ruin a man’s life, while a sound judgment may help him to a better life.

Senator Tydings. Do you feel that two men, two lawyers with the same qualifications, the same background, the same experience, one is appointed by the U.S. district court as a full-time permanent U.S. commissioner, with a salary at $22,500 a year, and the other appointed by the President and confirmed by the Senate to be a U.S. district court judge at $30,000 a year, the second is automatically more capable or more able to try a case involving—

Judge Levin. Well, the way you put the question, Mr. Chairman, the difference is only $7,500 a year. You said the same experience, same background, same judgment....

And just as wise a man and as mature a man, the answer is obviously yes, he is just as competent. But I say to you that system cannot possibly be invoked and get the same result because you are not going to get the same qualifications in a man engaged in a narrow area of the law as you will in a person with a wide experience and maturity. Then again, if I may suggest to the chairman and to Senator Hart, and other members of the committee, if you set up a man with all that authority, you have to provide him with staff and a courtroom. What are you saving? Why don’t you appoint another judge? We have eight judges [in the Eastern District of Michigan], give us one more judge if you think we are overburdened. Isn’t that the solution?

[Document Source: U.S. Senate, Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, Hearings on the United States Commissioner System, 89th Cong., 1st sess., Part 2, 166, 172.]

Judge Levin’s belief that neither commissioners nor magistrates were necessary for the proper administration of a district court did not go unchallenged, even by judges within his own district. Judge Talbot Smith, also of the Eastern District of Michigan, countered Levin’s assessment by suggesting that the failure to utilize commissioners harmed the district court in Detroit. He lamented that district judges were forced to take on trivial “police court” duties that could be handled by a subordinate court officer.

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The office of Commissioner should either be eliminated entirely or it should be made significant and meaningful in our Federal system. My preference is for the latter choice. Actually, I think, there is no other course of action open to us. We have seen in Detroit the result of the abolition of Commissioners and, speaking for myself and those other Detroit judges who favor their re-employment, we do not approve of the results. In so saying we recognize that others of our court take a contrary view.

We value their judgment and we have worked harmoniously with them on the problem but it is obvious that in this area our professional judgments differ....

During the time I was privileged to serve as a Justice of the Supreme Court of Michigan the only serious criticism of our Federal Court that I heard arose out of precisely the point we are here considering, namely, the non-use of Commissioners. The criticism came from a senior partner of one of Detroit’s largest and most respected law firms, a lawyer of extensive trial experience. It was his complaint that ours was the only Federal Court in the country, to his knowledge, where the judge hearing a trial would interrupt it twice a day, regardless of its importance or complexity, to hear trivial and police court matters, if the trial judge happened that week to be assigned to the “Miscellaneous Docket”... His criticism was so vigorous that it has lingered in my mind.

Moreover, in my judgment, it is indefensible, as a matter of sound judicial administration, to require a District Judge to take his time, whether he is interrupting a trial or not, to do such things as to swear an Internal Revenue agent to the agent’s statement that yesterday he discovered ten jugs of moonshine when he executed a search warrant. Notaries public take more significant oaths every day of the week.

The basic problem facing the entire Federal judiciary today is the problem of making the best use of the Judge’s time. It cannot reasonably be denied by anyone that while a Federal Judge is doing the work of a justice of the peace, or a notary public, that he cannot be doing anything else. And, furthermore, that there are more important uses for his time, whether it be spent in the litigation of significant Federal questions, in the writing of thoughtful and reflective opinions, or in research upon the law as to matters not clearly settled by precedent.

To those who say that the overall time spent by District Judges on Commissioners’ work is not, or would not be, substantial (if Commissioners were eliminated) our reply is that it depends upon what is viewed as substantial. In our opinion any time spent by a District Judge on a trivial function is an unjustifiable allocation of the limited time available to him and is a substantial interference with the performance of his significant judicial functions....

Our District Court time-problem is further compounded by the provisions of recent enactments. Since the employment of attorneys to represent criminal defendants who have not adequate funds for their own defense now involves the expenditure of public funds, and not the donation of time of public-spirited counsel, certain forms not heretofore required must now be completed. The obtaining of the necessary information and its accurate recording on the required forms, must be the responsibility of someone. I do not think it wise that we add these ministerial duties, important though they may be, to the already existing burdens of the District Judge himself....

Much of what I have said in favor of the use of Commissioners applies with equal force to the use of the enlarged Commissioner, termed “Magistrate” in the bill submitted. The cardinal considerations involved, from the standpoint of the District Judge, are the more expeditious disposition of litigation consistent with due process, and the conservation of the time of the District Judge. In my judgment the proposed bill is helpful in both of these considerations.

[Document Source: U.S. Senate, Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, Hearings on S. 3475, Proposals to Reform the United States Commissioner System, 89th Cong, 2nd sess., 1966, 198–200.]