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MONDAY, MAY 21, 1956




Washington, D. C.

The subcommittee met, pursuant to call, at 10: 55 a. m., in room 424, Senate Office Building, Senator Joseph C. O'Mahoney (chairman of the subcommittee) presiding.

Present: Senators Eastland, O'Mahoney, Johnston, Hennings, McClellan, Wiley, Langer, Watkins, Dirksen, Welker, and Butler. Also present: Joseph A. Davis, Chief Clerk.

Senator O'MAHONEY. The subcommittee will come to order.
Would you be good enough to sit down here, Mr. Sobeloff?
Mr. SOBELOFF. Yes, sir.

Senator O'MAHONEY. This meeting is a continuation of the hearing of May 5 upon the nomination of Mr. Sobeloff to a vacancy on the circuit court of appeals for the circuit embracing the States of Maryland, Virginia, North and South Carolina.

During the meeting on May 5, the administrative assistant of Senator Ervin came before the committee and made a statement to the effect that Senator Ervin wanted to be excused from appearing on that date because of illness, a cold, which had deprived him of the use of his voice.

To that I can personally testify because I saw him a few minutes afterwards.

It was agreed by the committee that that would be the case. Senator Ervin has consented to appear and make his statement now. Senator Ervin, you have the floor.


Senator ERVIN. Mr. Chairman and gentlemen of the committee, I appreciate this opportunity to appear before the committee in connection with this nomination.

When it comes to confirming a judge of the Federal court we have a very serious problem.

Someone has facetiously remarked of the Supreme Court Justices which present appointments for life "after him while the good he does is often interred with his bones."

It is a serious business when you appoint or confirm a circuit judge. If a wife gets a sorry husband she can get rid of him by divorce.

If the country gets a sorry President, or a State gets a sorry Senator, or a district gets a sorry Congressman, the people can get rid of him at the next election.

But whenever you appoint a Federal judge under our present system, the judge is with you until the last lingering echo of Gabriel's horn trembles into ultimate silence.

And I appear before this committee for the purpose of opposing the confirmation of Mr. Sobeloff because of the overwhelming majority of the members of the bench and bar. And the people of 3 States out of the 5 States in the circuit are opposed to his being circuit judge of the circuit.

And I would like to have permission to insert in the record later statements from any of the Senators from that circuit who may desire to share the views which I have.

Senator O'MAHONEY. That will be granted.

Senator ERVIN. My opposition to the confirmation of Mr. Sobeloff for the circuit judgeship in my circuit are twofold.

In the first place, I oppose his confirmation on the ground that his appointment and confirmation would breach a custom which has prevailed in that district for many, many years.

I oppose him, secondly, because I think that his constitutional and judicial philosophy is such that he condones, if he does not in fact approve, a force of action which, if continued in the United States, will reduce the States to meaningless roles on the Nation's maps.

Going back but very briefly to the first of the ground of my opposition, as far back as I have been able to investigate, it has been a custom in this circuit to rotate the appointments to the circuit court.

The State of Maryland has had a member of the circuit court since 1931, as I recall in the person of Judge Soper and the vacancy to which Mr. Sobeloff has been named, is a vacancy occasioned by the retirement of Judge Soper.

Under the custom which has heretofore prevailed in the circuit the appointment of the circuit judge in this instance ought to go to the State of South Carolina which has not had a member of the circuit court for many, many years. And the next appointment ought to go to the State of West Virginia, since the States of Maryland, North Carolina, and Virginia have had the most recent appointments.

My second objection to the confirmation of Mr. Sobeloff as a judge of this circuit is a more serious one. And in order to state that, I have got to go into something of the record of the Supreme Court of the United States during recent years.

It is with the greatest reluctance that I criticize the action of any


During 5 generations, with the exception of 1 generation, my people have been lawyers. My father was a member of the North Carolina bar for 65 years. And he used to say that the Supreme Court of the United States would render justice according to law until the heavens failed.

I was brought up to respect the judiciary. And I have spent 34 active years of my life-4 of them I sat in legislative bodies and the other 30 I have spent actively, either as a practicing lawyer or judge.

However, as I say, I have got to talk a little about the Supreme Court of the United States, because I think that the Supreme Court of the United States during recent years has ignored the very sound advice

which was given to the Americans for all time by George Washington in his farewell message to the American people.

George Washington alluded to the distribution of separation of the powers of Government under our constitutional system.

As we all know, we have a distribution of the powers of Government. On a national level, under our Constitution, the sole power to legislate belongs to the Congress. The power to execute the law belongs to the President. And the power to interpret the laws belongs to the Supreme Court and such courts inferior to the Supreme Court as the Congress has seen fit to establish.

And this is another distribution of power, that is the power between the local government, the State governments, and the powers of the Federal Government.

The people in my State drew a constitution 13 years before the Constitution of the United States was drafted. North Carolina is 13 years older than the United States. The first thing they put in their constitution was that the people of the State should have the sole and exclusive power to regulate the internal affairs thereof.

These people put that in their constitution in the first place because it occupied first place in their hearts. And when they established this government, they gave the Federal Government certain limited powers necessary to enable it to function as a National Government. And then they left the rest of the powers to remain in the States or the people of the State respectively.

George Washington said in his farewell address, after pointing out the distribution and the separation of powers of government under our system, he said this:

If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designated, but let there be no change by usurpation for though in this one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.

I think that the best interpretation ever placed in a nutshell upon the Constitution of the United States was that placed upon it by the Supreme Court of the United States in Texas v. White where Chief Justice Salmon P. Chase said:

The Constitution in all of its provisions looks to an indissoluble Union composed of indestructible things.

If I were a dictator of the United States-and I do not think the United States will ever have a dictator, even a judicial oligarchy ought not to be permitted to dictate--I would make the American people, if I were dictator of the United States, go back to school and study the circumstances under which our Constitution was formed. I would make some of the writers of editorials do the same thing because I have been astounded to read in such metropolitan papers as the Washington Post and others, that the Constitution of the United States amends itself by some kind of an evolutionary process, without any change being authorized in its wording by the only agencies permitted to amend it, namely, the Congress and the States.

That is in my judgment the right interpretation that was placed on the Constitution, not by a man from below the Mason-Dixon line like myself but by Judge Thomas M. Cooley, of the Supreme Court of Michigan, and a teacher in the law school of the State of Michigan.

In his great book on Constitution Limitations he laid down what I think is correct with reference to the Constitution of the United States. I am not going to read his whole statement but it is found 88 and 89 of the seventh edition.

at pages

Judge Cooley pointed out that written constitutions were drafted for the purpose of putting the fundamental of government beyond the reach of public opinion-the very moods of public opinion.

He said that the meaning of a constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. He says that the principal benefit of a written constitution would be lost if the rules of a written constitution established were so flexible as to bend the circumstances or be modified by public opinion.

He says that when a court undertook to interpret the Constitution, that it should declare the law as written, leaving to those authorized to amend the Constitution to make such changes as new circumstances may require.

And he said this, that a court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution, a construction not warranted by the intentions of its founders, would be justly chargeable with reckless disregard of official oath and public duty.

I am frank to confess that I share the view expressed by the late Justice Jackson in Brown against Adams when he said that he did not know any way that you could have justice unless you had a little law.

Senator WATKINS. What?

Senator ERVIN. A little law to go along with it. I do not think that justice can long survive law. And law is liable to be obstructed very much by this superscription we have on the Supreme Court Building over here, Equal Justice Under the Law but, frankly, my observation of the course of the Supreme Court of the United States during recent years has caused me to ponder whether fidelity to truth ought not to prompt us to erase those words from the front of the building and substitute, Not Justice Under the Law but Justice According to the Personal Notions of the Temporary Occupants of This Building.

That is a rather drastic statement to make.

Before I came here, for 62 years I sat upon the Supreme Court of the State of North Carolina and I saw day by day what the Supreme Court of the United States was doing to our constitutional system, and to our legal system under which we have lived.

And candor compels me to say that during recent years the Supreme Court has to all intents and purposes usurped the power of Congress and the States to amend the Constitution. Now this abuse of power is made manifest by many decisions, before the decision in Brown v. Board of Education, which repudiates solely upon the basis of psychology, and sociology, the interpretation placed upon the 14th amendment in respect to racial segregation in the public schools, during the

preceding 86 years which is a longer period of time than that which elapsed between the drawing of the Constitution of the United States, and ratification of the 14th amendment.

Now, I do not care to discuss the Brown case at any length, except to say that in that case the Supreme Court used some language which is most disturbing to me as a lawyer. The opinion says:

We cannot turn the clock back to the time the 14th amendment was adopted or even to 1896 when Plessy v. Ferguson was handed down.

If that statement means anything it means that the Supreme Court of the United States has adopted a philosophy which, indeed, is practiced, the Constitution of the United States automatically-amends itself from time to time without any change in its wording being authorized by the Congress or the States as authorized by the fifth amendment. And that the Supreme Court of the United States itself is the sole determinant of when the Constitution automatically amends itself, and as to the nature and scope of the automatic amendment. Senator WILEY. Will you read that sentence in connection with the context that you just quoted?

Senator ERVIN. I was quoting from memory.

Senator WILEY. Oh.

Senator ERVIN. It was dealing with the question of whether historically-in other words, the Court said it would not put itself back at the time when the Constitution provision was framed and drafted, they were not going to turn the clock back.

Now, I will have to confess

Senator MCCLELLAN. It meant they were not going to be guided or controlled by conditions that prevailed then and what the Founding Fathers intended?

Senator ERVIN. Exactly.

Senator WILEY. That is why I asked the question. I think we should have the language in connection therewith.

Senator ERVIN. I can give you the exact language.

Senator MCCLELLAN. Would that also carry the implication they are not bound by any past court decision by reason of what they said about it?

Senator ERVIN. Yes. Times have changes, they said, the inference being when it changes the Constitution automatically changes, too. Senator JOHNSTON. They would have a right to change their decision that they had previously made by the Supreme Court.

Senator ERVIN. I will look up the exact quotation and put it in later. I dislike to stop at this point to take up the time to find it now. Senator JOHNSTON. That means, also, they have a right to change their decisions that they have previously made which should be precedence for them, but they will no longer follow precedence. Senator ERVIN. Absolutely.

Senator O'MAHONEY. Will you get a copy of the decision?
Senator ERVIN. I have it right here.

Senator BUTLER. Hunt it up and put it in there, Mr. Davis.

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