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Here is what they said, I will quote:

The precise holding of the court

that is, the Pennsylvania court

and all that is before us for review is that the Smith Act of 1940, as amended, in 1948, which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes enforcibility of the Pennsylvania Sedition Act which prescribes the same conduct.

In other words, the court said, "We are only going to decide the case that is before us."

Senator EASTLAND. Repeat that-I did not get it.

Senator ERVIN. They said that the only thing that was before them was whether the Supreme Court of Pennsylvania had correctly decided that the Smith Act superseded the Pennsylvania Sedition Act. That was all they had before them.


And then you turn over and then before they get through they decide, after saying that the only question before them was the Pennsylvania Sedition statute, they proceed to point out that there were 41 other States and 2 Territories which had sedition statutes. before they wound up the opinion they held that the sedition laws of the other 41 States and the 2 Territories were null and void on the ground that they did not even set out the terms of the provisions of those sedition statutes, on the grounds that the Federal legislation occupied the entire field.

They said that the sedition laws made no exception, even in the case of the sedition laws, those portions which only applied to overthrow of the States, the local government.

So they struck down with one blow, and said, "We are only going to decide what is before us" and then proceed to say, "The sedition laws of the other 41 States, and the 2 Territories, are also null and void."

Notwithstanding the fact that those sedition laws were not involved in the case and the States' attorneys general of the States involved had no opportunity to defend the validity of that.

Senator O'MAHONEY. Did not that decision point out that in the particular case you speak of, Nelson, there was no allegation in the trial of that case in the Pennsylvania courts that the portions of the sedition law of Pennsylvania was not mentioned at all in the evidence that was brought?

Senator ERVIN. Yes; it says there was no evidence of any violation of the Pennsylvania law.

Senator O'MAHONEY. Can that be interpreted-I have not read the whole decision and I am speaking wholly from what you have said-can that be interpreted as overthrowing the Pennsylvania statute?

Senator ERVIN. Yes, sir. They say that all of them are void. Senator O'MAHONEY. That was said later in the proceeding? Senator ERVIN. Yes, sir. They said all of them. Here is what they say:

Since we find that Congress has occupied the field to the exclusion of parallel State legislation that the predominant interest of the Federal Government precludes State intervention.

Senator O'MAHONEY. That says "parallel"?

Senator ERVIN (reading):

And that administration of State acts would conflict with the operation of the Federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unavailable.

In other words, they say that all of the acts-and they say right over here, they say, even though the acts are consistent with the Federal act, even though they are in harmony with it, that they are bad; therefore, the State's sedition statutes are superseded-not Pennsylvania. Senator O'MAHONEY. Does not that mean that the State Sedition Act, which parallels, that is to say, which reenacts on the State level the Smith Act, is not a State function, because it is a Federal function? Senator ERVIN. They say the Federal Government has the predominant interest in it. And the inescapable inference from this decision is that it not only applies to the statutes which are designed to prevent the overthrow of the Federal Government by force and violence but also the States.

Senator O'MAHONEY. Will you give me your opinion on this question?

Suppose there were a person brought to trial in the State of Pennsylvania under this very statute, but under the section of that statute which forbids sedition against the State of Pennsylvania. Would that decision in the Nelson decision take that case off of the hands of the State court and put it in the Federal court, in your opinion?

Senator ERVIN. Yes, sir. I think it would on the language they used, because they just say, "All of them"-strike them all down. That is the only way I can interpret it.

Senator BUTLER. Mr. Chairman, may I ask the Senator a question? Does the record show in that case that the nominee represented the side that the Senator is contending for?

Senator ERVIN. Yes.

Senator BUTLER. That the statute could not have been stricken? Senator ERVIN. Yes. But that was on the Pennsylvania statute. I want to talk about another one: Slochower v. The Board of Education, from New York, where a supreme court, the majority of them, with four dissenting opinions, held that New York City-that section 903 of the charter of the city of New York was unconstitutional as it was applied to Professor Slochower.

He had testified before a congressional committee, and when asked as to whether he was a member of the Communist Party in 1941 he took the fifth amendment and refused to testify.

This section of the charter of the city of New York provided in substance that whenever an employee of the city invoked privilege against self-incrimination, asked with reference to conduct, that he automatically became disqualified to continue in his employment or to be reemployed.

And so Professor Slochower, his employment was severed by the city on that ground under that section 903.

My quarrel with this decision is this: It has been held by Federal courts time without number that the Federal courts, including the Supreme Court of the United States, would accept the interpretation placed upon State law by the highest court of the State.

The Supreme Court of the United States, the majority of them, in this 5 to 4 decision, they interfered with the discharge of this man on

the ground that under this section 903 of the city code, that is, invocation of the privilege against self-incrimination, was taken by New York under the New York statutes, was taken as a confession of guilt, and the only reason they severed his employment was because it was tantamount to a confession of guilt, being a member of the Communist Party.

They did that despite the fact that the Court of Appeals of New York State said that that was not a correct interpretation of section 903. The Court of Appeals of New York said that New York had adopted a policy, that the city had adopted a policy under this section that any person who failed to give information, any person in an official position failed to give information, thereby resign his position; that when he did that, took that course, he automatically resigned his position.

Of course, the Supreme Court of the United States could not have been impaired by the decision if they had accepted the interpretation placed upon the statute by the Court of Appeals of New York but that did not allow them to interfere. They seem to have an inordinate desire to interfere with State action. That did not authorize them to interfere with State action. So they said-they did not say this but they rejected the interpretation placed upon section 903 by the Court of Appeals of New York in violation of the rule which had been applied by the Federal court from the foundation of our Government and which has been sustained in literally hundreds of cases in order that they might interfere.

Senator HENNINGS. May I ask the distinguished Senator a question?

Do I understand the Senator to say that the court said that he should resign his position, or was it mandatory that he must do so? Senator ERVIN. The court said under this that the proper interpretation of this that this section, this Court of Appeals of New York-did not sever his employment on account of his guilt of any crime, but that under this statute his action in taking that course was tantamount under the law to his resignation of his position.

Senator O'MAHONEY. Did Mr. Sobeloff have anything to do with that?

That is the decision.

Senator ERVIN. No, sir. The reason I come to this is thisSenator HENNINGS. Is that obiter dictum? Senator ERVIN. That is not obiter dictum. Senator HENNINGS. If it says he ought to or should or it is tantamount to resigning his position, I do not quite understand then by virtue of that decision-I have not read the case.

Senator ERVIN. I will read the exact words. The Court of Appeals of New York has authoritatively interpreted section 903 to mean that

The assertion of the privilege against self-incrimination is equivalent to a resignation

end of the quote.

And then the majority of the Supreme Court says that is the wrong interpretation of the New York law.

We don't accept that. We say that the New York law does not mean what the Court of Appeals of New York says that it means; that is, invocation of the privilege against self-incrimination is a confession of guilt.

Senator BUTLER. May I ask a question?

Senator ERVIN. Yes.

Senator BUTLER. Did not the brief filed by the Solicitor General of the United States take the same position that the Senator is now arguing for?

Senator ERVIN. Oh, as far as the record discloses there was no brief filed by the Solicitor General of the United States in that case. Senator BUTLER. He had nothing to do with the case?

Senator ERVIN. No.

Senator O'MAHONEY. One may easily agree with the position that you make. As I understand-and I have not read that decision; I have been too busy with this work here

Senator ERVIN. Yes.

Senator O'MAHONEY. The New York statute clearly stated that if a person in judicial proceeding was called upon to answer certain questions to give information to the court, refused to give that information, the result automatically was to sever him from the employment by the State. That had nothing to do with convicting him at all of any crime. It was merely an exercise of the State's jurisdiction to say that no employee of the city shall be permitted to hold his office and at the same time decline to give information in a court procedure. Senator ERVIN. That is right.

Senator O'MAHONEY. That, in my judgment, has nothing to do with the fifth amendment. And I think that your criticism of the decision, if I have correctly understood it-your statement was correct, but at the same time it has nothing to do with the function we have before us. Senator ERVIN. No, except this

Senator O'MAHONEY. Whether or not Mr. Sobeloff should be confirmed.

Senator ERVIN. Except this, Senator: As I said before, I think one of the most serious problems that confronts the American people today is whether or not the Federal courts are going to continue to hand down decisions which can have no effect other than reducing the States to ineffective legal entities.

My second opposition to Mr. Sobeloff is based on a speech which he made in Baltimore to the City Bar Association, as reported in the Baltimore Sun for Tuesday morning, December 14, 1954. And he said this:

The Supreme Court

he said

is not only the adjudicator of legal questions but "in many instances is the final formulator of national policy."

The example offered of the Court's policymaking function was the decision last May in which the Court ruled school segregation unconstitutional.

Like Congress, or any other policymaking body, the Court chooses the appropriate time to decide important questions.

For example, for several years before taking the school segregation cases the Court repeatedly turned away opportunities to decide questions in that area. And lately, the Court declined to review a ruling on segregation in public housing. "Perhaps," Mr. Sobeloff said, "because the Court thought it best, after deciding the school cases, not to say more about other aspects of segregation at this time."

The question of timing, especially in cases involving political controversy, "can be of supreme importance" to the Court.

I inferred from these remarks as quoted in the Baltimore Sun for Tuesday morning, December 14, 1954, that Mr. Sobeloff condones, if he does not approve, the actions of the Federal courts in usurping the powers which they have usurped both to amend the Constitution and the powers to legislate. Otherwise, I do not think that he would have used the thought that they choose the appropriate time to make decisions of this character.

Senator WATKINS. May I call your attention to the fact—just a moment to the fact that when Mr. Sobeloff was before the subcommittee this speech was discussed. As I remember, we placed the entire speech in the record, and Mr. Sobeloff's explanation. I think when the members of the committee read it, it will clear up the very thing you are talking about.

Senator ERVIN. I am familiar, I think, with his explanations, that he was merely stating the facts.

Senator O'MAHONEY. Did you read the record?

Senator ERVIN. I did not see anything in there that indicates that those facts are not entirely satisfactory to him. And the use of the word "appropriate" would seem to imply that.

Senator O'MAHONEY. Did you read the record before the subcommittee?

Senator ERVIN. I have not read it in its entirety.

Senator O'MAHONEY. Mr. Sobeloff was asked to respond to that very question. Would you care to hear his explanation now? Senator ERVIN. I would be very glad to hear it now.

Senator O'MAHONEY. Mr. Sobeloff, would you care to give it? Senator ERVIN. I would like to see the speech first, to see whether the word "appropriate" was used.

Senator O'MAHONEY. It is in the record.

Senator MCCLELLAN. Have you got a copy of the record?

Senator BUTLER. Here is a copy of the record bearing on that particular point.

Mr. SOBELOFF. I have a copy of it.

Senator BUTLER. Here is a copy bearing on that point.

Mr. SOBELOFF. Here is the copy right here. I have an extra copy. I will give it to Senator Ervin.

Senator O'MAHONEY. Do you have the extra copy?

Mr. SOBELOFF. The same speech that I delivered before the fourth circuit conference in 1954. It was published in the American Bar Association Journal for December, I think it was in 1954-March 1955 is the correct date. Excuse me.

(The speech referred to appears in the hearing conducted May 5, 1956.)

Senator O'MAHONEY. What do you have?

Senator ERVIN. I have looked at it hurriedly. This is apparently his interpretation of the speech.

Mr. SOBELOFF. I have the text of the speech here, too.

Senator WATKINS. It was put in the record but has not been printed yet. It will only be in one copy, the original copy, where it will be included, but not in all of the copies.

Senator O'MAHONEY. Suppose we permit Mr. Sobeloff to make his statement now.

Senator MCCLELLAN. Have you concluded?

Senator O'MAHONEY. No.

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