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personnel, however high-minded and diligent and important as good personnel is. It is not to be found in mere governmental structure, valuable as that may be. The guarding and preservation of freedom is the business of every citizen, in and out of Government. Democracy is everyone's job. It involves individual responsibility and exertion on the part of each citizen. Public criticism is important; even more so is patient and intelligent citizen action to remove the ground for criticism. Civic progress does not come from those who abdicate their function and remain aloof from public business. Justice in the courts is not advanced by those who shirk jury duty. Politics is not elevated by those who withdraw themselves from it. Often the duties of citizenship are difficult and drab and distasteful, but there is no escape if we mean to practice democracy and make it work.
Unofficial organizations are a significant instrument in implementing citizen action. They are an indigenous and necessary part of American political and cultural life, both nationally and locally. They are repositories of rich spiritual resources. They stimulate the people, nourish Government policy, and are the wellsprings of action in our communities.
The central role of the citizen in a democratic society has been recognized time and again, but never more eloquently than by Chief Justice Hughes. "We have in this country," he said, "but one security. You may think that the Constitution is your security-it is nothing but a piece of paper. You may think that the statutes are your security-they are nothing but words in a book. You may think that elaborate mechanism of government is your security-it is nothing at all, unless you have sound and uncorrupted public opinion to give life to your Constitution, to give vitality to your statutes, to make efficient your Government machinery."
The force of these words will be appreciated when we recall that certain other countries have copied our Constitution almost word for word; but what a difference in practical operation has been imparted to their constitutions by the spirit and bent of those peoples. Words that have no echo in the hearts of the people are hollow.
Who then, guards our freedoms? The voluntary organizations you represent, and other thousands of such agencies, and tens of millions of men and women whose minds know and whose hearts feel the worth of American citizenship and its priceless privileges and its challenging responibilities-all of us indeedmust be the vigilant guardians of freedom. Only in this way will our land remain both free and secure. Such is the cause to which we loyally pledge devotion tonight and always.
Despite distracting commotions and confusing cross-currents, notable gains for constitutional rights are presently being achieved. The establishment of the equality of such rights has become a prime concern of government. The right to trial by an impartial jury has been vitalized by a series of court decisions. Attorney General Herbert Brownell, Jr., is vigorously advocating legislation to assure in Federal courts adequate defense by competent counsel to indigent persons accused of crime. Significant steps are being taken under General Swing, the new Commissioner of Immigration and Naturalization, to establish fairness in immigration and deportation procedures. A statute which prohibited discrimination on account of race in the restaurants of our Nation's Capital has been rescued from long years of desuetude and made effective by the Supreme Court. That age-old, humiliating policy of discrimination along color lines in the Armed Forces has been practically eliminated. It is noteworthy, and deeply reassuring to us as we contemplate other areas, that despite numerous warnings that this policy would not work, it is working, and there have been no untoward incidents. Within the past year, a committee headed by Vice President Nixon, and on which Deputy Attorney General William P. Rogers represents the Department of Justice, has implemented a policy banning racial discrimination by contractors engaged in Government work. Just a few days ago, President Eisenhower gave added strength to this policy by approving a revised clause for all contracts with the Federal Government. Even more importantly, racial segregation in public schools has been declared unconstitutional by the Nation's highest Court in a history-making unanimous opinion.
"How do these things come about?" They are being brought to pass first in the heart of America. They don't just happen. They are steps in a progression. Countless men and women contribute to it. Each gain that is made makes the next one easier to attain.
So it is wise and fruitful for us to assemble from time to time to recall these things and to recount them to others. The reaffirmations we make in such a conference as this are not empty rituals. They renew the sources of our strength. They direct our attention to our duty. They focus our energies in the defense of the foundations of our system.
Those of us who are in Government, those who make a career of education, and those who are active in civic endeavors, appreciate the deep psychological wisdom embodied in the Biblical injunction for the teaching of the law. It may without irreverence be applied to the teaching of our Constitution. Thus it is divinely ordained: "And these words, which I command thee this day, shall be in thine heart: And thou shalt teach them diligently unto thy children, and thou shalt talk of them when thou sittest in thine house, and when thou walkest by the way, and when thou liest down, and when thou risest up. And thou shalt bind them for a sign upon thine hand, and they shall be as frontlets between thine eyes. And thou shalt write them upon the posts of thy house, and on thy gates."
Judge PARKER. Thank you, Mr. Solicitor General, for that outstanding address. Thank you, Mr. President, for allowing me to participate in this great occasion. I congratulate you and Judge Hyatt and other members of this movement on this splendid meeting.
I turn it over to you, Judge Miller.
Judge MILLER. Thank you, Judge Parker.
Now I suggest that we all remain seated while these Purple Heart veterans make their way out of the room. Let us give that final gesture of honor.
Thank you, all of you, who have come here to meet with us and take part in this dinner meeting.
This concludes the program of the evening. We shall recess now until tomorrow morning when we go back to work.
Mr. SOBELOFF. A few weeks ago, a few months ago, when the court decided that a former soldier, after his discharge, could not be brought back for trial, for a military trial, on a charge or an offense committed while he was in the Army, there were two contending arguments: One was that Congress has the right to legislate for the control and operation of the Army and the Navy and the Army and naval forces. And that in the maintenance of discipline, they ought to be able to try this man, even after he is discharged, in a military court for a crime. committed while he was in the military service.
The opposite argument was that he was not in the Army any more; he was a civilian. And even though the offense was committed before he became a civilian, being now a civilian he is entitled to a jury trial, to an indictment and a jury trial.
Now, here is an illustration of various policies, and arguments based on these policies were adduced. The Supreme Court decided, contrary to my argument, that Congress had no authority to provide for the trial of this man in a military court.
Here was a determination of policy, but that is a judicial policy subordinate to the policy as laid down within its power by Congress, or in this instance contrary to the interpretation of the Constitution. But there is nothing in anything I have ever said or done that recognizes any notion that courts are freewheeling and that they can set policy at will. I reject the notion, and I reject the suggestion that I have ever adhered to it.
Senator WATKINS. The Peters case was referred to.
Mr. SOBELOFF. Yes, sir.
Senator WATKINS. Would you care to make a comment on your attitude in that case?
Mr. SOBELOFF. I think, Senator Watkins, that what Mr. Lindsay has said, with the authority of the Attorney General, is a sufficient answer to that.
I did what I thought was right. I think I would have lost selfrespect and the respect of my colleagues if I had done otherwise, and I don't see how anybody has any right to feel aggrieved if the Attorney General and the President are not aggrieved by what I did. Senator O'MAHONEY. Any other questions?
Senator WATKINS. Not at the moment, Senator, if you have something.
Senator O'MAHONEY. Mr. Sobeloff, it is quite apparent that most, if not all, of the opposition which has been expressed against you at this hearing arises from the fact that you were Solicitor General of the United States at the time the Supreme Court heard the arguments in the so-called desegregation case.
One witness of the opposition this afternoon was obviously speaking with great sincerity, and out of deep conviction, with respect to what he felt might be an invasion of the basic rights of the white people in that force might be used to enforce that decree.
I have read your brief as submitted to the Court, and I am aware of the contention that was made upon the part of the National Association for the Advancement of Colored People.
Did you advocate the forcible enforcement of whatever decree would be made?
Mr. SOBELOFF. There was no suggestion of that sort by anybody in the courtroom, and certainly I did not advocate it. I think you will find in that brief, and my oral argument followed closely along the same line, a most careful and sympathetic consideration of the human elements involved on both sides.
Indeed, at the time when I made my argument, which was between the two extremes, the southern newspapers generally complimented my argument as being moderate. They spoke of it as the "voice of moderation.”
They would hardly have said that if I had intimated that we were contemplating the use of force.
Of course, as a judge of the Court, I would do what judges generally do, almost universally do: I would respect my oath of office.
Senator WATKINS. You would also have to follow what the Supreme Court has laid down as the law, would you not?
Mr. SOBELOFF. And if there is anything that is established in an orderly government, it is that the inferior courts have to follow the superior courts. I make no concealmeat of my belief in that. I don't think there is any Member of the Senate who will declare to the contrary.
I don't think any responsible citizen will say that a lower court can disregard a decision of a higher court.
Senator O'MAHONEY. But, Mr. Sobeloff, was it not one of the points of your argument that the difficulty of adjusting this fundamental policy toward existing conditions was fully recognized in what you said?
Mr. SOBELOFF. If you will let me have that, I think I can point to some of the language.
I think that the spirit of the whole brief and of the argument is that it would be unwise for an equity court to order forthwith integration as was asked for by the NAACP.
On the other hand, I said that the Court could not pass a decree which nullified its own decision, and I advocated-and the Court
unanimously took the same view-that there should be time given for the orderly accomplishment of what the Court said had to be done. To that end, it was my argument that the Supreme Court should not attempt any overall, single decree. My argument recognized that there were differences in conditions. What may be possible in Wyoming or in Utah might not be possible in Virginia or South Carolina. Again, if I may be permitted to use the word that is so offensive to some people, "timing" is an important factor. If you disregard "timing" in crossing the street, you will come to grief; and no man who has had any experience in life will say that you disregard "timing," especially where you are dealing with delicate matters of the adjustment between human beings and races.
The whole thrust of the argument was that, in the first instance, the schedule, the method of procedure, should be examined in the district courts by the judges who understood best the conditions of their localities. They could grant such time as they thought right; they could, if sufficient cause were shown for it, grant further time. And it was all, of course, subject to review in the higher courts.
There was no spirit of vindictiveness or imperiousness. I think I recall using the expression before the Supreme Court that we ought not to ride roughshod over people.
But, of course, I did make it clear, speaking for the Government, that the court ought to adopt such procedures as would bring about as promptly as feasible the accomplishment of what the Court had ruled had to be done.
Senator O'MAHONEY. But you did not ask for the forthwith accomplishment of these objectives?
Mr. SOBELOFF. No, sir; I did not.
Senator WATKINS. How did the Government get into that case? Mr. SOBELOFF. The Government was, I think, a party in the District of Columbia case, and I think the Supreme Court had asked the Government to come in, the Department of Justice, as amicus.
Of course, you remember the main case, the argument on constitutionality, was made before I became Solicitor General; though the decision was made in May of 1954, the arguments had been made in the fall of 1953. I became Solicitor General in February 1954. The arguments that I made in 1955 occurred after the Supreme Court had declared segregation unconstitutional. The question to which I addressed myself was not a reargument of that case. The question was what form of decree should the Court adopt; and the Court asked the lawyers to address themselves to four questions pertaining to the form of the decree.
That was what this argument was about in which I participated. Senator WATKINS. I am glad you cleared that up. I know there is an impression among a large number of people that you were one of the men who came in originally on the argument of the segregation
Mr. SOBELOFF. No. That was decided in May 1954, following an argument in the fall of 1953.
Senator O'MAHONEY. Well, that leaves it this way, then, Mr. Sobeloff: That you did not argue the original case. Mr. SOBELOFF. No, sir.
Senator O'MAHONEY. That the decision of the Supreme Court on the constitutional question had been made before you appeared before the Supreme Court.
Mr. SOBELOFF. That is right.
Senator O'MAHONEY. And that your participation in this case was directed only toward the formulation of the decree, and that your argument was for moderation in the form of the decree.
Mr. SOBELOFF. That is precisely correct; and even the lawyers representing the Southern States, when they veered close to a review of the original decision, and one of the Justices asked him, "Are you rearguing that question?" he said, “Oh, no, no. That is water over
Senator O'MAHONEY. Now then, one more question, Mr. Sobeloff: Do you consider it to be the duty of a judge, when he takes the oath of office, to separate himself, as it were, from all previous opinions on questions that are suitable for litigation, and that in deciding impartially it means he would decide the cases on the law and the facts as they are then presented in each case?
Mr. SOBELOFF. A judge, of course, is a human being, and he does not come without any opinion or pre-position. He has his experience in life. But it is a disciplined office in the sense that the occupant has to discipline himself. He has to observe his oath. He has to judge impartially.
And while I will, of course, obey the higher courts, just as the district judges in the South are doing, I have no such feeling as would disqualify me from dealing impartially and fairly with any of the people of these Southern States, or even these very people who testified here today.
Senator O'MAHONEY. Would you mind briefly summarizing for us what you conceive to be the duty of a judge in a Federal court, in the administration of justice?
Mr. SOBELOFF. Well, that is a very broad question, Senator.
Mr. SOBELOFF. A judge in the Federal court is sworn to uphold the Constitution. He has to respect the law. He can't let his personal preferences override the binding law as laid down in the precedents, especially by the higher courts; and it is his duty to, within the law, not fashioning a rule of his own, but within the rules of the game, as determined by the proper authorities, to seek to establish justice in relations between the litigants, whether it is the Government and an individual, or whether it is two individuals, or a State and the Nation, or whoever that may be.
Senator O'MAHONEY. And if you should be confirmed by this committee and confirmed by the Senate, and then subsequently sworn in under the oath of office to administer the duties as justice of the Fourth Circuit Court, would you conduct yourself in accordance with the principles you have just laid down?
Mr. SOBELOFF. I certainly would. That would be my aim.
Senator WATKINS. I have this thought in mind in connection with what you just asked, but you probably have answered it.
You heard the statement of the witness who was a farmer from down in South Carolina?
Mr. SOBELOFF. Yes, sir.