Peter McCabeRecording One

September 19, 2012

Peter McCabe: PMJanice Dilg: JD

JD: Today is September 19, 2012. I am Janice Dilg, the US District Court of Oregon

Historical Society oral historian, and I’m interviewing Peter McCabe, the assistant

director of the Offices of Judges Program. We’re in the courthouse law library in the

Mark Hatfield Federal Courthouse.

Peter, why don’t we begin by telling me your name and your law school and your

first legal position that you held.

PM: I’m Peter McCabe. I graduated in 1964 from Harvard Law School and went to

Washington, D.C. to begin my legal career as a law clerk for a federal judge. I did that for

two years, and then did government litigation for three. In 1969, I was recruited by the

Administrative Office of the United States Courts to come back to the judiciary and set

up the new federal magistrates program, which had just been enacted by Congress in

October of 1968. I was literally hired to get the new national system going.

JD: Do you know what the reasons were that you were recruited?

PM: As is usual with most jobs, it was largely a matter of luck. I was just beginning to look

around for another job and had begun to examine some law firms. By happenstance, my

general counsel had just been appointed by the President as assistant attorney general at

the Department of Justice. The man he succeeded as assistant attorney general, in turn,

had just been appointed as director of the Administrative Office of the U.S. Courts (AO).

Since the Federal Magistrates Act had been passed, he was looking to hire an attorney for

the AO to start up the new magistrate program. He called his successor as assistant

attorney general, my former boss, and asked him whether he knew of any young attorney

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who might be right for the job. My name came up, and I was called for an interview at

the AO. I got the job, and I’m still in the same place forty-three years later.

JD: (laughs) It was a good fit.

PM: It fit very well. There’s probably not much else that I can do very well, but this job was

one that I could handle, and I have enjoyed it immensely.

JD: What direction were you given? How did you begin the process?

PM: There was a long history—going back to the founding days of this Republic and before

that to England—of having two categories of trial-level judges. For centuries, we have

had “high court” judges with broad jurisdiction to decide all manner of civil and criminal

cases, and interim or entry-level judicial officers with limited authority, such as “justices

of the peace” or “magistrates.” The entry level officers in the federal courts at the time

were the U.S. Commissioners. They set bail in criminal cases, issued search and arrest

warrants, and tried petty offenses on federal lands.

But the system was not working as well as it should for a number of reasons. For

example, the commissioners were paid on a fee basis for each proceeding they conducted,

or for each warrant they issued, which was not an ideal situation. They were also not full

time officers. They did not have any staff. Many of them were not legally trained. The

courts had complete control over hiring as many commissioners as they wanted,

regardless of workload or need. Although there were many fine commissioners, some of

them were clearly not of the caliber that the judiciary should have had.

Throughout the 1960s, there was a move in Congress and in the judiciary to

improve what was called “the first echelon of the federal judiciary.” The leading person

in Congress behind the reform efforts was Senator Joseph Tydings of Maryland, who

conducted hearings on the subject throughout the ‘60s. As a result, a consensus

developed that Congress needed to upgrade of the first level of the federal judiciary.

Legislation was introduced, and eventually passed in 1968, that created a new

federal judicial officer. Congress chose the title of “United States Magistrate” to denote a

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clear break from the title of “commissioner.” They gave the new officer all the statutory

duties that the commissioners had, plus additional, but ill-defined jurisdiction to perform

a variety of other judicial duties to help the district courts in civil and criminal cases. The

lack of clearly defined authority caused problems that later had to be resolved by

additional legislation.

The 1968 Act created a system of full time and part time judicial officers, with a

strong preference for full time officers. It authorized the Judicial Conference and the

Administrative Office to give the magistrates dedicated staff and other support services.

It put them on a federal pay scale and required that they be lawyers, with some rare

exceptions. The Act provided that the number of magistrate judge positions in each

district was to be determined by the Judicial Conference of the United States, the policy

making body of the federal judiciary.

When I was hired in 1969, I was told to do all that was necessary to set up the

program nationwide. That included starting with helping the Judicial Conference

determine how many magistrates were needed in every court. [Narrator’s note: At that

time, the statutory title was “magistrate.” The title “judge” became very commonly used

as a form of address, but the title was not officially changed by statute until 1990.]

We actually did survey every district in the country. We visited the courts and

spoke with the district judges and others to determine how many of these new magistrates

were needed. Many of the courts, including the district court here in Oregon, saw the

magistrate program as a tremendous opportunity to develop a good system for the bench

and bar. But other courts were not terribly interested in the new system.

We completed the surveys and came up with the initial allocation of magistrate

positions for each district in the country. We had to write a legal manual for the

magistrates, which was required by the statute, develop a budget for the program, provide

the new officers with offices and staff, issue financial regulations, set up a statistical

system, and provide a code of conduct and ethical regulations. We literally had to set up

the new system from scratch. That really kept us busy for the first two or three years, just

getting the basic building blocks in line.

After we completed the initial surveys, we received some complaints from some

of the chief judges of the circuits that several of the district courts were not taking the

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new system seriously enough. So we went back and did a second survey and created

several additional magistrate positions. Initially we came up with, I believe, about eighty-

three full time positions and more than 400 part timers. But over the years, we’ve

converted most of the part time positions into full time positions. To the point that now

we have over 530 full time magistrate judges nationwide and only about 40 part-time. As

contemplated in the 1968 Act, the system has evolved into a system of full time judges.

The statute provides that magistrate judges are appointed by the judges of the district

courts for eight-year terms in the case of full time magistrate judges, and they may be

reappointed to additional terms.

After the system was set up initially, we had to go back to Congress and change

the jurisdictional provisions to make the authority of magistrates clear. A lot of things

happened with regard to the use of magistrates in the courts and I’d be happy to talk

about those.

JD: Sure. We’ll get to that. Who were you working with? What was the configuration? You

talk about going out on these surveys, and—

PM: The Administrative Office reports to the Judicial Conference of the United States, which

is headed by the Chief Justice of the United States. Chief Justice Warren Burger was a

big supporter of the magistrate system. To get all the surveys conducted, we recruited

lawyers from other parts of our office, like the General Counsel’s office and the

Bankruptcy Division, to help on the visits to the courts and the survey reports. We also

worked closely with a number of judges who were very interested in the program and

willing to speak with their colleagues. We had a tremendous, wonderful reception from

the court here in Oregon from the very beginning, particularly from Judge Robert

Belloni, who was the chief judge at the time. The court took the magistrate program very

seriously and saw it as a great advantage for both the judges and the bar. It was very easy

to work with this court, but in other courts, we had to work harder on it.

The stated purpose of the legislation was not only to reform the first tier of the

federal judiciary, but also to provide relief to the district judges—to make their job easier

so they could have more time to do the things that only they, as Article III judges, can do.

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Our focus with the judges was discussing with them how they might make their courts

work better by providing them with an additional judicial officer. This district got the

point from the very beginning, and the program was a big success here.

JD: It seems like a fairly basic, agreeable premise.

PM: Yes.

JD: You said in some of the districts, either they weren’t taking it seriously or they weren’t as

enthusiastic. What was their resistance to this idea?

PM: Well, a variety of things. You know, a lot of really great innovations are not accepted

initially. People by nature are generally happy doing things the way they have always

done them, especially when they are satisfied with the results. Many busy people,

moreover, don’t tend to focus on new, untested programs. They generally don’t think

much about something until they hear from their colleagues by word of mouth.

Then we also, frankly, heard a principled argument from some Article III judges

who defined Article III, and what only Article III judges can do, much more broadly than,

for example, you or I might. They were reluctant to give judicial functions to non-Article

III magistrates.

I think also that the salary, originally, was a big problem. In 1968, at about the

same time that the Federal Magistrates Act was enacted, Congress also passed the new

Salary Act, which set up a mechanism for adjusting the salaries of high federal

executives, members of Congress, and judges by establishing a commission to fix their

salaries. However, the Magistrates Act had not yet passed, and the new magistrates were

not included in the salary legislation. The result was that district judges, circuit judges,

and others got a salary increase, but magistrates didn’t. We eventually resolved the initial

salary problems a couple years later by amending the statute. But the low salary was a

problem in recruiting magistrates.

I think that a lot of the initial resistance was merely due to misunderstanding or

lack of interest, as some courts just didn’t see the potentials for the new program to really

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assist the district judges. But things changed as word of mouth started to spread that

many districts were really using their magistrate judges well, and it was making a

difference for their court and the bar. District judges would go to judges’ meetings and

say, “I get a lot of help from my magistrate judge. He settles cases,” or “she is a whiz

with discovery,” or what have you. The word got out, and the magistrate system

essentially grew in large measure by word of mouth, coupled with educational efforts on

our part and by the Federal Judicial Center, the judiciary’s training academy.

The key to the success of the program has been—and the concept is enshrined

right in the Act—that the duties of magistrate judges are left up to each district court to

determine. The district judges can each decide how magistrate judges should be used in

the best ways to help that court. As a result, you have a wide variety of different uses of

magistrate judges among the districts. That’s good in the sense that it lets each court

decide what to do based on local conditions, and it encourages innovation. It’s bad, I

suppose, from a centralizer’s point of view because everybody’s doing something

different, and it’s hard to draw comparisons and produce statistics. But it’s actually one

of the great features of the Act.

JD: Were there any patterns to the districts that were more accepting or more resistant?

PM: Well, yes. The districts that were the “better” districts, if I can use that term, saw the

potentialities of the Act and decided at the outset that they wanted to get really good

people to fill the magistrate positions. They succeeded in getting former state judges and

respected lawyers to take the jobs. And they also treated the new magistrates well, called

them “judge,” invited them to all the judges’ meetings, and let the bar know that they

were an important part of the court. Where the district judges treated the magistrates as

fellow judicial officers and worked to promote them among the bar, the system worked

extraordinarily well in district after district. The bar became very used to seeing the

magistrates as judges of the court.

In other districts, though, they did not do that. There was not the same level of

communication between the district judges and magistrates or between the judges and the

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bar. The system lagged in those courts, as the magistrates were not initially given a lot of

the important duties that virtually all magistrate judges now exercise.

JD: Was there any geographical, or any pattern, in that respect as far as who was more on

board or accepting?

PM: To some extent. I would say that in the smaller districts there was more acceptance of the

magistrates. It’s a little harder in the big, metropolitan districts with many, many judges,

to get uniformity or a consensus. In a small district, for example, all the judges can get

together for a lunch or a meeting, but in a large district, there is less regular

communication. I don't think that there’s any hard pattern, but I think you’ll find that in

small and medium-sized districts, there tended to be greater use of magistrates because

the judges and magistrates were close to each other—one district judge and one

magistrate, or two district judges and one magistrate, or three and two. It was easier than

in a court where there may be twenty-five district judges and ten magistrate judges. It’s

just hard to have the same kind of coherence there.

JD: It’s the scale.

PM: Yes. In part.

JD: you weren’t long out of law school, were you?

PM: Five years by the time I started at the Administrative Office.

JD: What was your experience, going around and meeting with perhaps well-known judges

who had decided famous cases? What was that personal experience like for you?

PM: Surprisingly, I was not terrified by it. I remember meeting Judge Charles Wyzanski in

Boston. I remember in law school reading his landmark decision in the United Shoe case.

[United States v. United Shoe Machinery Corporation Civil Action No. 7198 76 F. Supp. 315;

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1948 U.S. Dist. Mass.] I had heard about him from lawyers, who said that he was a guy to be

afraid of, justly or unjustly. But he couldn’t have been more charming to me. I found that to be

true all around the country. The judges were delightful. I didn’t have a single problem with

anybody. They made me feel at home. I think having been a law clerk in a federal court for a

couple of years made me feel more comfortable being the judges, too. Yes, it was an honor.

The other thing, too, is that I was bringing them good news. I was coming to them with

something for them. I wasn’t there to investigate or check up, so there was no reason to be afraid

of me. I was bringing the goodies, basically, so that probably helped a lot.

JD: What were the type of issues and questions, were the surveys—?

PM: Jan, I usually met with the chief judge, and often with a committee of judges, and tried to

show them the potential for the use of magistrates in their district by saying what other

districts were doing, what the statute allowed, and what seemed to work.

We’d talk about different things. Like, for example, how they’re handling

prisoner cases. How they’re handling Social Security appeals. How they’re settling civil

cases. How they’re helping resolve problems with criminal cases. Based on the

knowledge of what other districts were doing, showing them statistics and so forth, we

were able to talk with the judges about how they might think a little bit ahead and how, if

they had another magistrate judge, perhaps they could ease their civil case load or back

load by using the magistrate judge to settle cases or whatever. We acted like facilitators.

Then often we would get them to talk to other judges who were big supporters of

the program, and ask that they give other judges a call. It was basically a persuasion role

that we did.

JD: This is long before the day of cell phones or fax machines.

PM: We had typewriters. We had carbon paper. We even had some electric typewriters. We

were very modern for the time.

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JD: (laughs) There’s this interesting back and forth. The provisions have been written and

there’s some in use. You’re going out and doing surveys. What was the back and forth

like between the legislation, and who you were working with in the Congress and the

Administrative Office?

PM: The first crisis that we had to deal with was to solve the pay problem for magistrates. We

had to get the salary up, and it required legislation to do it. We did have the great help of

the magistrates’ professional organization, which was the successor to the old U.S.

commissioner organization. They had some very good people working hard on it who had

some good political connections, like Morey Sear and Harry Lee of New Orleans. I know

that we worked with Representative Hale Boggs of Louisiana, who was the “go-to” guy

in the House of Representatives for that purpose. He was extraordinarily helpful to us on

these issues.

The second big problem we had was with the jurisdiction, or rather authority, of

magistrates. I should say “authority” because the “jurisdiction” that magistrate judges

exercise is the jurisdiction of the district court itself. It was soon after the nationwide

implementation of the magistrate system, within the first year or two, that we started

getting adverse decisions from the circuit courts and then from the Supreme Court on the

authority of magistrates under the 1968 Act.

Two Supreme Court decisions in particular were very important. One Wedding vs.

Wingo [Wingo v. Wedding, 418 U.S. 461 (1974)], I believe, said that a magistrate judge

could not conduct an evidentiary hearing in a habeas corpus case. The other, Matthews

vs. Weber, [Mathews v. Weber, 423 U.S. 261 (1976)], as I recall, knocked down the

practice of magistrates handling social security cases. Those cases very much limited the

authority of magistrate judges under the Act. It was clear to us and clear to the

Magistrates Committee of the Judicial Conference—and I’ll tell you about them in a

second—that we had to seek legislative amendments to clarify and expand the statutory

authority of magistrates.

To explain, the Judicial Conference is the policy-making body of the federal

judiciary. It operates through a series of committees composed of federal judges. The

governing committee for us was the Committee to Implement the Federal Magistrates

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Act, which later became the Magistrate Judges Committee. It was chaired by District

Judge Charles Metzner of New York and composed of thirteen or fourteen federal judges.

All of them were very supportive of the new program. Everything that we needed for the

program in the way of proposed legislation or policy decisions on operational matters had

to go through that committee first, and then to the Judicial Conference for final approval.

We decided, in light of the developing court decisions and the growing

uncertainty over magistrates’ authority that we needed to take a fresh look at the entire

statutory authority of magistrates under the 1968 Act. I was the chief of the AO’s

Magistrates Division at the time, and I decided to assemble an advisory committee of

magistrates that included several members of the magistrates’ association. We worked

together and with the Magistrates Judges Committee of the Judicial Conference to redraft

the provisions of the 1968 Act to effectively authorize magistrate judges clearly to handle

a wider variety of judicial functions for the district courts—to give them authority over

pretty much any pre-trial matter in the district court on delegation from the court. That

was the focus of our efforts starting in 1975. We came up with a number of good ideas,

and the Magistrate Judges Committee came up with additional ideas. It was decided,

essentially, that a magistrate judge should be able to handle with final authority any non-

case-dispositive matter in the district court, meaning discovery and procedural motions,

and to conduct evidentiary proceedings. But if a particular matter would be case-

dispositive in a case, like a dismissal motion or a summary judgment motion, a magistrate

judge could hear the matter and take evidence but only recommend the disposition of the

matter to a district judge. Our proposed legislation was pretty simple and clear.

Then we had to work with Congressional staff to get it enacted, and there the

battle really began. We had to work with both the House and Senate Judiciary

Committees, whose staff was very cooperative, but had their own ideas on certain

matters. I remember that the real breakthrough on the legislation occurred in 1975, at the

annual convention of the magistrate’s professional association in Colorado Springs,

Colorado. We sat around a big round table in the hotel restaurant—the judges on the

Magistrates Committee, the counsel from the House Judiciary subcommittee, and several

officers of the magistrate association—to try to reach agreement on the precise language

of the proposed amendments.

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The House counsel wanted to include all the procedural details in the statute itself,

like how many days a losing party would have to object to a magistrate’s decision and

how the objections would be filed with the court. He also insisted on having the statute

list in detail all the potential motions that a magistrate could handle, specifying which are

dispositive and which are non-dispositive. The judges, though, said that that approach

made no sense at all because it would surely leave out some matters and be too inflexible.

Nevertheless, we succeeded in working out language that is almost exactly the

same as the statute that was eventually enacted, 28 U.S.C. 636(b). It lists eight specific

motions that it categorizes, in effect, as dispositive. The statute says that a magistrate

judge can hear those motions, but may only make proposed findings of fact and

recommendations and include them in a report to a district judge for the judge’s final

disposition. All other motions and pretrial matters in the district court were categorized as

non-dispositive, allowing a magistrate judge to decide them with finality, subject only to

an appeal and a “clearly erroneous” standard of appellate review. We succeeded in taking

out most of the proposed procedural details from the statute, leaving them up to rule

making. The legislation got through and passed in 1976. It is still in place and basically

lets magistrate judges handle any pretrial matters for the court.

As soon as the 1976 amendments were enacted, some of the more progressive

courts, including the District of Oregon, gave magistrate judges a very wide range of

duties to perform, including civil trials on consent of the parties. It was argued that the

statute specifically authorized it, both the 1976 amendments and a provision in the 1968

Act that allowed a district court to assign to a magistrate “such additional duties as are

not inconsistent with the Constitution and laws of the United States.” I thought so too, but

the circuit courts did not. The issue did not reach the Supreme Court, but it became very

clear in the case law that there was no statutory authority for magistrates to try civil cases

on consent.

So we had to go back to Congress again. We got the Judicial Conference to

approve proposed legislation allowing a magistrate judge to try any civil case in the

district court with finality and to order entry of judgment, on consent of the parties.

Again, we had to go through the full legislative process.

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At this point, Jimmy Carter had just become the President, having taken office in

January 1977. His new Attorney General was Griffin Bell, a judge from the Fifth Circuit.

He set up a new organization in the Department Justice to focus on justice policy issues,

headed by Professor Dan Meador of the University of Virginia. I believe that it was

called the Office for Improvements in the Administration of Justice. The new office was

charged with looking for ideas to promote worthy judicial reforms.

In early 1977, I received a visit from a key lawyer in the new DOJ office. He was

seeking the views of the judiciary on one of the Department’s proposals. In effect, he said

something like: “We have a great idea: why don’t we allow civil trials by magistrates on

consent?” Of course, that was the judiciary’s position already. I said something like:

“Oh, I think that’s a great idea.”

Then I gave him a copy of our own proposed legislation. (laughs) It was

somewhat broader than what he had in mind, since it included some other things that we

felt were important, like giving magistrate authority to try all misdemeanors in the federal

courts, and a few other things. But we reached a quick agreement, and his office accepted

them right away. Thus, we had the judiciary and the Department of Justice, the two

branches of government, together on the same page.

We did have a couple of disputes over details, such as appeals from final

decisions by magistrate judges in consent cases. Most of our judges wanted the appeals to

go from the magistrate judge directly to the circuit. Attorney General Bell and a few

judges wanted to have all appeals go to the district court. That impasse was eventually

worked out, and the statute included a double consent procedure. The parties had to

consent to the magistrate judge deciding the case with finality, and separately they could

consent to having the appeal go directly to the court of appeals. Without the second

consent of the parties, the appeal would go to the district court.

We also had some disputes over the appointment of magistrate judges. The House

Counsel wanted to put a lot of detail into the statute in about how magistrates should be

selected, with public notice, selection panels, diversity requirements, and the like. We

thought that the details should not be in the statute, and we convinced them that the goal

of merit appointments could be accomplished by getting the Judicial Conference to adopt

detailed, stringent requirements on magistrate selection. The statute, as passed, simply

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said that there must be a merit selection panel and public notice. All the details are then

covered in the Conference regulations.

The biggest dispute, and the one that caused me all kinds of grief, was over the

standard of review that a district judge must apply in ruling on a dispositive motion heard

by a magistrate, such as a motion for summary judgment or dismissal. Thus, if the

magistrate judge hears a matter and makes findings of fact and recommendations to the

district court, what is the district judge’s role? The House Counsel said that in the case of

a dispositive motion there had to be de novo review. But the Senate Counsel said

adamantly, “I’m not going to approve any legislation that says de novo.” He said that

they had a de novo requirement in the state courts of his state, and it just didn’t work. He

threatened to hold up the legislation and not let it get out of committee if it included a de

novo provision.

The House Counsel, on the other hand, said if the legislation did not have de

novo, he would make sure that it didn’t get out of the House committee. At the time, we

were facing a black or white choice—de novo review versus no de novo review. That

really held up all progress on the legislation. I was going back and forth between House

and Senate counsels trying to get some agreement.

Then, by sheer chance, I came across a Ninth Circuit case, the Campbell case,

[Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied,

419 U.S. 879] I think from a year or more before that had used the phrase de novo

“determination.” Not de novo” review,” but de novo “determination.” In reading that

opinion, I saw that it explained: “The district judge does not have to conduct a new

hearing. The district judge can act on the record made before the magistrate judge

without conducting a new hearing, but must make a de novo determination of the matter.

The district judge may decide to call more witnesses if necessary.” I took that language

from the Campbell case and drafted some wording for the Congressional reports, and

both counsels agreed to it. We wrote language into the House and Senate Reports. The

Congressional intent is that de novo determination in the statute means what the Ninth

Circuit said in Campbell. That agreement went a long way toward securing agreement

and getting the legislation through.

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But, the legislative process never seems to end. We got the bill through both

houses of Congress in identical language and were expecting it to pass and be signed by

the President. Then in 1978 an additional, extraneous provision was added, I believe on

the House side, to limit diversity jurisdiction in the federal courts. It had nothing to do

with magistrates. The provision was not added to the Senate version of the bill. The

magistrate legislation did not pass in 1978, because you had two bills, House and Senate

that were not identical.

In 1979, when a new Congress came in, the bill was reintroduced. By this time,

all the kinks and disagreements had been worked out, and the legislation passed readily.

The 1979 law provided magistrate judges with statutory authority to conduct civil trials

on consent, with appeals either to the district court or court of appeals. It was amended a

few years later to have all the appeals go to the Court of Appeals.

By 1979, essentially, the jurisdiction was pretty well settled. Contempt authority

for magistrates was added later by statute, and the requirement of consent by defendants

in petty offenses was eliminated. Essentially the structure today is what it was in 1979,

with a few modifications.

I think that anybody who deals with legislation knows that what you start out with

in proposed legislation is almost never what you wind up with after all the interested

parties have their say and Congressional staff make their changes. But luckily Congress

did a good job on this one, and it’s a good law. It’s a very good law.

JD: I did notice in one of the Library of Congress summaries of the Magistrate’s Act of 1979,

I could see the list of dates with Senate reports and House reports. The first one was in

January—

PM: Yes.

JD: Then it was finally signed I think October 10th of that year. So even in the written record,

you get a sense of the back and forth that you were living firsthand.

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PM: Oh, yes. Judge Charles Metzner of New York, the chairman of the Magistrates

Committee of the Judicial Conference, worked very hard on that legislation. We had

some good friends in Congress and good, knowledgeable staff counsel. Normally, it’s

very difficult to get anything done in Congress, but this was a joint effort and it worked

out very well. I think everybody was happy over it.

JD: As you were speaking, you mentioned that you found the Campbell decision from the

Ninth Circuit, I was curious when you’re creating something new, where are you going

for your grounding in putting this together? Or how much of it is being created new?

PM: I think here we had a lot of authority and precedence. Conducting civil trials on consent

was new. But we had the experience of the District of Oregon, which had been doing it

on a regular basis, and some other districts, to show that it worked well. People were

happy with it. We had the advantage of saying that it did work. On most of the other

things, we had the experiences of district judges on various matter. Our focus was on

educating people about the possibilities of the legislation.

Judges on the whole like broad statutes and rules that they then can interpret and

apply to meet the conditions of each case. Our goal was to get the staffers in Congress,

and the members of Congress themselves, not to gum up the legislation with all kinds of

examples, and details, and exemptions. To a great extent, we just said, “Trust us. We

know what we are doing. ” Really, up until about 1990, there was comity and respect

among the branches. Congress did trust us to do what was right. Nowadays, you know,

it’s more difficult to get anything through because there is no trust or respect.

Also, we had some wonderful people in Congress. Congressman Robert

Kastenmeier of Wisconsin, a Democrat, was the chair of our House Judiciary

subcommittee and responsible for legislation affecting the courts. Representative Tom

Railsback, Republican from Illinois, was the ranking minority member of the

subcommittee. They talked with each other, and they worked things out. The staffers also

tended to work most things out. I wonder, though, whether we’d get anything like that

through Congress today, but back then, people were doing things in the public interest. It

worked quite well.

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JD: I did look at the Congressional testimony of 1979. Talk a little about how you decided to

ask Judges Otto Skopil and George Juba, and attorney Walter “Cap” Evans also testified.

How did you go about choosing them?

PM: I think that Oregon was chosen because it was a pioneer in this area. Judge Skopil,

moreover, I believe, was already on the Magistrates Committee at the time. He eventually

succeeded Judge Metzner as the chair, and Judge Skopil was responsible for all the

additional changes we got in the ‘80s, including a better retirement system and better pay

for magistrate judges and bankruptcy judges. I think that we tried to focus on people who

had credibility and gravitas, who were doing relevant things, and who could talk to other

judges and members of Congress about what this means to them. We were also fortunate

to have had people like Senator Mark Hatfield, who wanted to do the right thing. A lot of

it depends on credibility. We had policy decisions to make, and tactical decisions, in

order to get legislation through. But it was key to have credible people demonstrate to the

legislators that the magistrates system actually worked and what we were aiming at

would improve the system even more.

JD: By the time you were at the hearing, it seems like most of the dissension and the concerns

had been ironed out?

PM: The one issue that was still causing some problems was the direct appeal from a

magistrate’s judgment to the court of appeals, even with the consent of the parties. Griffin

Bell was not happy with that, but he eventually backed off. Some of our judges, including

Judge Morey Sear from New Orleans, was pushing very hard for us on that, saying that it

made sense for both the courts and the litigants. The provision that passed in 1979 was a

halfway, compromise measure. It allowed a direct appeal if the parties agree explicitly

agreed to it and the district court allowed it.

And again, it worked. Then we went back several years later and abolished the

district court appeal; the appeal is now always to the court of appeals. So, yes, it was

common sense that prevailed.

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But the problem is convincing members of Congress and their staff to act. Most of

them are great people, but they don’t see the day-to-day stuff that goes on in litigation. I

mean that they may hear some things from attorneys, but it is not the same as having

judges sit down with them and explain to them what happens step by step. And you

couldn’t ask for somebody better than Judge Skopil to explain something simply—they

understood it right away. He was convincing. We were very happy that he was around to

do that.

JD: At some point in this process, you became acquainted with Judge Michael Hogan. Talk

about your work together.

PM: He was one of the early pioneers, too. Judge Hogan was appointed originally as a

combination bankruptcy judge and magistrate judge in Eugene in 1973. The workload

was heavy, and combining the two positions made a lot of sense, which you could do at

that time. The 1984 bankruptcy legislation abolished that by creating a new court system,

so you can’t have combination positions anymore. But Judge Hogan handled both

positions well.

As it turns out, the caseload increased substantially in Eugene, both for the

bankruptcy judge and the magistrate judge. We really had to have both a full-time

magistrate judge and a full-time bankruptcy judge. Judge Hogan, as a magistrate judge,

was given the full range of duties by the district court from the very beginning, and he

was doing just about everything that a magistrate judge could do.

He was also involved in many national events and organizations. He eventually

became the president of the Federal Magistrate Judge Association and was on Judicial

Conference committees. In fact, the Chief Justice appointed him to the Judicial

Conference committee that oversees the Administrative Office. Judge Hogan is very

persuasive and energetic. I’m sure that if you know Judge Hogan, you know that he’s a

very persuasive guy, and he was very helpful to us.

I’ve known him since he first came on duty, so that’s almost forty years. We have

worked on many programs together, including a program for Russian judges that we

participated in together on a cruise ship on the Volga River.

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JD: He definitely was one of the path breakers.

PM: Very much so. Judge Belloni also saw the potentials of the system, and Judge James

Burns was very much involved. The court here in Oregon was always very supportive.

Having Judge Skopil as the national chairman of the committee for ten years was very,

very helpful, too.

JD: You mentioned that you wanted to go back and talk about some of the changes and—

PM: Well, the magistrate judges system developed incrementally over time. We were flying

blind to some extent because there had been no magistrates before. Sure, we had U.S.

Commissioners, who were part time judicial officers with very limited duties, but setting

up a second category of federal judge as an integral part of the district courts was

something new. As it turns out, we had some experience with the referees in bankruptcy

that we could draw on.

To show how things turn around, the original Federal Magistrates Act of 1968

was based to some extent on the Referees’ Salary and Expense Act of 1947 or 1948.

Then Congress passed a new Article I Bankruptcy Court in 1978, but the Supreme Court

invalidated it in the Marathon case in 1982. [Northern Pipeline v. Marathon Pipe Line,

458 U.S. 50 (1982)]

So after Marathon, we had to recreate the bankruptcy courts. There was a fierce

battle between advocates who wanted to make them Article III courts, and the Judicial

Conference that wanted to make the bankruptcy system very much like the magistrate

judge system. Ultimately, in 1984, Congress did make them very much like the

magistrate judge system. Interestingly, the jurisdictional provisions of the 1984

bankruptcy legislation were modeled on the 1976 and 1979 magistrate legislation that I

mentioned before. For example, the bankruptcy authority, in 28 U.S.C. § 157, makes a

distinction between “core” and “non-core” bankruptcy proceedings, which is basically

the same distinction that is made between “dispositive” and “non-dispositive” matters for

magistrate judges. The statutes are closely modeled on each other. The 1984 bankruptcy

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statute specifies that bankruptcy judges, like magistrate judges, are judicial officers of the

district court, and the bankruptcy court is a “unit” of the district court.

It was creating something relatively new for us to have a second category of full-

time judicial officer in the same court. How do you deal with that on a regular basis? The

bankruptcy system is different in actual practice, because the bankruptcy judges have

their own separate clerk’s office and often operate in different buildings, and they have

designated special jurisdiction. District judges rarely hear bankruptcy cases, except on

appeal. But magistrate judges deal with the same cases as the district courts, in the same

building and with the same clerk’s office and record system. Two judges, district judge

and magistrate judge, may work together on the same case at the same time. Just working

out those relationships over the years has been interesting to watch. You know, after

years of working with somebody side by side, the relationship grows and you respect

each other more and more and rely on each other more.

In the early days, only a few districts called their magistrates “judge.” The District

of Oregon was one of them. Then the practice became much more common. Now, of

course, the title is “magistrate judge” by statute. In many districts, the magistrate judges

participate in the court meetings and chair court committees. Chief Justice Warren Burger

and then Chief Justice William Rehnquist put magistrate judges and bankruptcy judges

on all the Judicial Conference committees, so they are deeply involved in the

organization of the judiciary, and contributing very heavily to it.

Basically, for both bankruptcy judges and magistrate judges, it’s been a process of

elevating the status and the functioning of these non-Article III judges for the benefit of

the Article III court itself and the litigants. The magistrate judge system has worked out

very well in about every district. Local people have worked out the daily arrangements,

and the jurisdiction and authority of magistrate judges is extensive and pretty well set.

There are not too many breakthrough opinions any more on what a magistrate can do or

can’t do.

But, of course, we had a whopper for bankruptcy judges last year in the Supreme

Court in Stern vs. Marshal. [132 S. Ct. 56; 180 L. Ed. 2d 924; 2011 U.S.; 80 U.S.L.W.

3078] Essentially, it’s pretty clear what the jurisdiction is and how people fit together.

The relationship is pretty well set at this point.

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JD: I came across one article written by, I believe he was a recent law school graduate from

William and Mary at the time, Brendan Shannon—he’s now a bankruptcy judge—about

the Federal Magistrates Act, and was doing an Article III analysis about it. He seemed to

be concerned about the jurisdictional issues, and brought up what he considered

“creeping jurisdiction” and mentioned one type of felony case. It sounds like there’s still

discussion going on.

PM: There’s not much discussion going on currently with the magistrate judge system. But

there is in bankruptcy now because of Stern vs. Marshall. As a result, there are now some

bankruptcy proceedings that are listed as “core” proceedings in the statute, allowing a

bankruptcy judge to decide them with finality. But the Supreme Court has said that a non-

Article III bankruptcy judge cannot decide them as a constitutional matter, so there are

some areas in bankruptcy that still have to be sorted out.

With the magistrate judges, there’s not a lot going on with regard to jurisdiction.

There was some concern after Stern vs. Marshall, and some loose language in some of

the opinions that opened up some old wounds, if you will. But I don't think there’s a lot

of concern at this point as long as there is consent of the parties.

Theoretically, there may be some issues there because if something goes to the

Supreme Court, you can’t guarantee how it’s going to come out. There are some, if I can

say the word “purists,” who might knock down everything based on an overly strict

reading of Article III. That would be a catastrophe for the federal courts, because I don’t

see how the district judges can handle all the cases. I’m not terribly worried about it at

this point, and I don't think there are many magistrate judges who are terribly worried

about it. We are monitoring it, but we’re not trembling at this point.

JD: Is there any type of timeline, or thought process, about ways to move the magistrate

judges’ powers, or the provisions, in new directions, as it has in the past?

PM: Yes, but not jurisdictionally because I think that the authority is already extremely broad.

It extends largely to essentially the entire jurisdiction of the district court on delegation.

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The district court can assign just about everything to a magistrate judge in a civil case

unless it’s dispositive of the case, in which case the magistrate judge either has to file a

report and recommendation with the court, or obtain consent of the parties.

In criminal cases, though, we’re limited in felony cases. A magistrate judge may

dispose of any misdemeanor with finality and impose sentence. Any offense above that

level can only be disposed of by an Article III judge (although a magistrate judge may

help the district judges in felony cases by handling motions and conducting hearings).

The jurisdiction, the authority, is pretty clear.

The focus has been, for the last twenty years, on how effectively to use magistrate

judges within the broad range of authority. The Magistrate Judges’ Committee has

produced what it calls “suggestions for effective use of magistrate judges.” They’ve

reviewed them a couple of times and they’re undergoing additional review now on how

district courts can most effectively use magistrate judges—to avoid judicial duplication,

to avoid disparities in workload, and to be most effective for the court and the bar. That’s

where the focus now is—what’s the most effective way to use magistrate judges and what

is the most cost effective way to operate.

There are some areas that are controversial, like using magistrate judges to take

pleas in felony cases. Now obviously, statutorily, they can’t really accept the guilty plea

in a felony, because that’s a disposition of the case and an Article III function beyond the

reach of the Federal Magistrates Act. In many districts, particularly along the border of

Mexico, the volume of cases is so enormous that they use magistrate judges regularly to

conduct the arraignments, which can be done fairly quickly in a lot of cases. They read all

the rights to the defendants and make a recommendation to the district court judge as to

whether or not the plea is voluntary, knowing, and so forth, which then saves the district

judge a lot of time, particularly if there’s no objection.

That’s an area where it makes sense, at least in those busy districts, to use

magistrate judges to save district judges time. But you’re not quite going up against the

constitutional issue of the magistrate judge actually taking, accepting, the plea. Some

district judges disagree and think that this is an inappropriate use of magistrate judges.

They believe, and I tend to agree with them in theory at least, that in most cases you want

McCabe, 21

the district judge who is ultimately going to impose sentence to see the defendant in

person at the arraignment. So there’s a legitimate discussion in these areas.

On the other hand, if district judges in certain districts feel that it’s helpful to

them, and helpful to the system, to have magistrate judges conduct the plea proceedings

and make a recommendation, the statute, I believe, gives them that authority. Those are

the areas where there’s some dispute. Essentially, I think, the authority issues are largely

settled for now, unless the Supreme Court gets into the act again.

JD: We began talking about how some districts got the idea of magistrates much earlier, or

were receptive to it. As the Magistrate Act has evolved and the system has been in place

for a number of years now, have districts that were reticent completely embraced it?

Have you seen that evolution?

PM: Yes. I think almost all districts have come around to extensive use of magistrate judges.

We had two districts that held out for years against giving magistrate judges consent

jurisdiction authority to try civil cases on consent—presumably on Article III grounds—

but both those districts have come around.

We do have a number of districts that do not give civil trials to magistrate judges,

but for different reasons. Number one, in those districts, the district judges often get to

trial quickly and they don’t see the need for it. The lawyers, moreover, will not get a trial

any quicker by consenting to a magistrate judge. The other reason is that the district

judges may feel that it’s not the most effective use of their magistrate judges. For

example, I know one district that’s always used magistrate judges very well, but does not

use them for civil trials because the magistrate judges are great at pretrial and mediation

case settlement. That’s their best use, and that’s what the court has decided. It’s a

preference of each court.

I think that there’s generally much more acceptance of extensive use of magistrate

judges, even though that’s not to say that every single district judge is on board. You

would expect that. I mean, Article III is there, and people have different views on what it

means.

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JD: As an outsider, I’m intrigued by the fact that there are those differences in use. That a

system that, at least to me, seems like these are the rules and everybody follows the same

way—that common sense, or letting a district figure out what works best for them—can

be accommodated.

PM: But you know Jan, even within a given district, there are differences. Take the example

I’ve used of where the magistrate judges are extremely effective in pretrial and

settlement. On the other hand, you have a competing consideration that district judges

should take control of their case from the outset and move the case along. Many judges

say, “I should not delegate my pretrial work to somebody else. I need to stay on top of

that case myself so if it goes to trial, I am in charge of it.”

So you have different views on using magistrate judge for pretrial work or not.

We have seen changes over the years, though, away from pretrial work that requires

magistrate judges to file reports and recommendations with the district judges. I think that

more and more courts are refraining from giving magistrate judge’s dispositive motions

that require a report and recommendation because they feel that it duplicates judicial

work. Basically the courts would prefer to get consent to those matters, and if not, have

the district judge handle a case. Other districts don’t agree. On the whole, I see a clear

trend toward fewer reports and recommendations.

JD: Peter, what are any additional bits of the history that I haven’t specifically asked you

about that you think are important to have on the record, or as part of this recollection

that you’ve been recording?

PM: I don't know if they’re worthy of the record, but I can tell you a couple of things. To this

date, I’ve never reconciled myself to bureaucracy, even after forty-three years, because I

guess I’m too close to it. You have to see it up close to dislike it. (JD laughs) We had

some bureaucrats in our office, and in other places, too, who wanted everything to go by

the rules. For example, in getting things that magistrate judges need. I remember having

difficulty in the early days even getting them pencil sharpeners. When electric pencil

sharpeners first came out, the people in our old procurement section wanted to let the

McCabe, 23

magistrate judges have only the wind up variety, because it was half the price. There

were a whole bunch of things like that.

Take recording equipment. We started out with the magistrate judges using

recording equipment. They basically still do for initial appearances and proceedings of

that sort, but the bureaucrats insisted that we had to use American-made equipment. Yet

the Japanese were taking over the industry pretty quickly. I think that Lanier was the only

equipment that was still being made in this country, but it just didn't work well. We had

all these stories from the courts of recording machines breaking down in the courtroom,

and even picking up radio signals. All of a sudden in the middle of a bail hearing, music

would start playing in the courtroom, emanating from the recording equipment. Of

course, we got all the complaints, like: “the machine broke down, and you made us buy

this Lanier Edisette machine and it doesn’t work.”

I got tired of it and I said, “Why are we doing this?” I suggested to our people

way back in the early 1970s: “Why don’t we just give the clerk the money to buy

whatever equipment they need? Then let the clerk and the magistrate judge go out on the

local market and see what’s there, what can be repaired easily. ” We actually won that

battle and got the problem taken care of.

Then we had a little flap over law books. We had a rule internally that every

magistrate judge was entitled to two copies of the West’s Desk books. That’s the single

volume that contains Title 28 and the civil rules, or Title 18 and the criminal rules. That

was the marching order I was given, but some judges said to me, “I need three copies,

because I sit at different locations, or need one at home.”

Our people said, “No, they only get two. That’s what the rule says.”

We had other judges say, “Why are you mailing me two books? You’re wasting

federal money, because I only need one.” They still got two.

Again, we had a useless waste of time due to bureaucracy. Finally, I suggested

that we gave them the money for two and they could do whatever they wanted with it.

There were all kinds of things like that, like not allowing carpeting and drapes in

magistrate courtrooms because they had classified them as “hearing rooms,” not

“courtrooms.” I would say it really wasn’t until the 1979 law was passed that we were

able to convince not only the administrative people, but the GSA and everybody else, that

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magistrate judges are full-fledged judges, and not accountants, or management analysts.

We have a lot of stories about requests from judges being turned down for seals and

books and all kinds of things. It takes a while to break through on a lot of that stuff.

We ended the problems by 1990 or so, when we went to decentralized budgeting

for the federal courts. Today, we buy very little. We give each court allotments for staff,

supplies, and equipment and give them enormous latitude to buy what they need as long

as they don’t exceed their budget. They can move the money around for different

purposes.

Also, in the very beginning of the magistrates system, we had some districts that

would not let magistrates wear robes. Some insisted on calling them “Mr.” or “Mrs.” In

fact, we had one district for a while that made their magistrates wear gray robes. I think

that was only one district, and they changed their mind.

JD: I’ve heard that.

PM: We also had some issues in a couple of courts with magistrate judges (and bankruptcy

judges) not being allowed to use the judges’ elevators, even where the judges’ law clerks

could. We even had one district where the elevator was programmed not to stop on the

floor of the magistrate judges. (both laugh)

At the time, it hurt a lot of people, but you look back on it now, and it’s pretty

funny. Or even at circuit conferences, the magistrates had to wear a different color badges

than the Article III judges and things like that. We lived through a lot of that over the

years.

But the 1979 law, followed by the 1984 bankruptcy law, which created two

important, full-fledged judges by statute, I think, changed everything. Thanks largely to

the Magistrates Committee, chaired by Judge Skopil, and the Bankruptcy Committee,

chaired by Judge Morey Sear, the Judicial Conference recognized that magistrate judges

and bankruptcy judges needed to have adequate staff and other support services. Their

law clerks make the same amount of money as other law clerks, and they get the same

kind of furniture and equipment.

McCabe, 25

A lot of the struggle in the beginning was just in getting the Article III judges, the

clerks, and others to accept that they are judges of the district court. We all know and

accept that they’re not the same as Article III judges, but they are judges in every sense of

the word. That’s beyond question at this point, but it took a lot of efforts to get where we

are. Really, it took good people like Judge Metzner, Judge Skopil, and Judge Sear to push

that.

Getting the retirement legislation through in the late 1980s was another very

important step. With federal salaries not being nearly what they should be, we had to take

steps to make the positions more attractive. The fact that you can retire from a judgeship

with a good pension within a reasonable period of service as a judge—much shorter than

a career federal employee—was very helpful in our recruitment and retention efforts. We

worked that out together. Judge Skopil for the Magistrate Judges’ Committee, Judge Sear

for the Bankruptcy Committee, and AO Director Ralph Mecham worked together with us

to get legislation that produced a really good retirement system. In addition, the same

team obtained legislation to set the pay of magistrate judges and bankruptcy judges

automatically at ninety-two percent of the salary of a district judge. As a result, all federal

judges work together closely on pay issues because the rising tide raises all the boats.

That’s what a lot of the struggles were—statutory authority, title, support services,

pay, and retirement. It took us twenty years to do what in retrospect should have—but

could not have—been in the original act. But, that’s the way it is.

JD: It’s a process.

PM: Yes. Yes. But it’s been a joy. It’s been an honor. There aren’t many people who have had

the opportunity to do something new, exciting, and important.

JD: Absolutely. It’s wonderful to be able to hear your recollections, since you were there

from the beginning forward.

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PM: I was there. Unfortunately, as you get older, you forget. (laughs) In trying to recall

events, I can usually remember where we met. I don’t always remember who was there or

what they said, but I do remember where he or she was sitting. (both chuckle)

JD: At the picnic, Judge Hogan mentioned Bill Berry. He seemed like perhaps he was a

central character.

PM: He was. I’d forgotten his first name, and Judge Hogan reminded me of it recently. He

was the guy from the Department of Justice who came over to my office in 1977 on

behalf of Griffin Bell and Dan Meador to propose that the judiciary support the

Department of Justice bill to let magistrate judges try civil cases. He and I worked very

closely together on that legislation. I worked with Mike Remington on the House

Judiciary subcommittee and Bill Westfall on the Senate subcommittee on that legislation.

He was very helpful to us. I remember him very well. Yes.

JD: Any final thoughts or stories that you want to impart? I’ve asked all the questions I had

for you.

PM: I think that we’ve pretty well exhausted it. But what’s been very helpful to me—and I

think that everybody I know agrees—is that the magistrate judges, as a group, are a

delight to work with. Their Federal Magistrate Judges Association is very cooperative,

and we meet with them a couple of times a year and communicate with them regularly.

We in the Administrative Office also have an advisory group of magistrate judges who

meet with us to provide us assistance and advice. They all know what their role is and

they know how they fit into the federal judiciary. The focus of everything for them and us

is how to make the federal courts work better. They’re a joy to be around.

I was thinking about writing a law review article, which I just have not gotten

around to, on a parallel to the David Letterman style Top Ten list.

JD: Mm hmm.

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PM: I thought about an article listing the top ten achievements of the federal judiciary, the top

substantive changes, in the last fifty years or so. I was thinking about it and trying to rank

the top ten. The introduction of the federal magistrate judge program, I still think, would

be number one of all the changes that have had the most profound impact. I’m not sure

how I rank the others, but they would include the rebirth of the bankruptcy system,

implementation of the nationwide federal defender program, the growing emphasis on

effective case management, the near total automation of the courts and court records, and

the professionalization of court administration through professional clerks of court and

other executives.

But looking back on the last fifty years as an age of reform, I think that a historian

another fifty, 100 years from now, will say: “Boy, the second half of the twentieth

century was a time when the federal courts really moved forward and made a lot of

changes.” I’d be hard-pressed to limit it to my top ten to just ten, and I’m not sure exactly

how I’d rank it, but I would certainly put the magistrate system up at the top, probably

number one.

JD: That seems like an excellent stopping point. Thank you so much for your time.

PM: It’s been a joy. Nice to see you again, Jan.

[Interview Ends]

© of the US District Court of Oregon Historical Society & Oregon Historical Society, September 19, 2012

McCabe, 28