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Senator JOHNSTON. NO.

Senator ERVIN. I do not object to that.

Senator MCCLELLAN. We might want to interrogate Mr. Sobeloff. You will be here for a long time.

Senator WATKINS. We will not get through in the 35 minutes allotted. I knew that when we started.

Senator ERVIN. You might as well double it, when a Senator says that.

Mr. SOBELOFF. Subject to your pleasure, if you would like me to proceed now.

TESTIMONY OF SIMON E. SOBELOFF, SOLICITOR GENERAL OF THE UNITED STATES, NOMINATED TO BE UNITED STATES CIRCUIT JUDGE OF THE FOURTH CIRCUIT-Resumed

Mr. SOBELOFF. Mr. Chairman and gentlemen of the committee, the speech that Senator Ervin refers to is the same speech I delivered at the Fourth Circuit Judicial Conference. And I have the full text here.

I think Senator Ervin was present at that conference. I am not sure he was there at that particular time.

Senator ERVIN. I was not present at the speech. I did not get there until later.

Mr. SOBELOFF. I recall sitting next to you at the dinner that evening. Senator ERVIN. Yes; that is correct.

Mr. SOBELOFF. I do not recall that anybody criticized what I said. And I am sure you didn't hear any criticism from any of the numerous judges and lawyers, many from North Carolina, South Carolina

Senator EASTLAND. Where is the text of the Baltimore speech? Mr. SOBELOFF. The same speech.

Senator O'MAHONEY. It is in the record.

Senator ERVIN. I might add in that connection we are not accustomed to criticizing our people who are in a sense guests of our State. Mr. SOBELOFF. I am sure there was no disposition on-I was sure there was no disposition on anybody's part to disagree with what I said.

Senator EASTLAND. We have got a calendar call. Do you desire to continue?

Senator MCCLELLAN. And to resume this afternoon?

Senator O'MAHONEY. We have an Indian Affairs hearing that we postponed until 2 o'clock this afternoon.

May I speak now to the chairman of the full committee?

My purpose in moving that we hear Senator Ervin this morning was twofold.

First, to give Senator Ervin an opportunity to make a statement for reasons he could not make beyond his control on May 5 when the original hearing was held.

And secondly, to give as many members of the committee the opportunity to hear him and to hear Mr. Sobeloff and others.

I have been anxious to close this matter so far as the subcommittee is concerned, so that I may turn my attention to other matters which have been assigned to me.

If it is agreeable-I know every Senator wants to be on the floorif it is agreeable, I shall call the subcommittee for a meeting at 4

o'clock this afternoon in this room to hear the remainder of Senator Ervin's statement, and to proceed as far as may be necessary with the invitation to all members of the full committee, to come and listen to the testimony.

Senator JOHNSTON. I will have to object to 4 o'clock, because that is right when they are taking up the bill. I will be the one that will have to make a speech on the floor.

Senator ERVIN. I can close in about two sentences.

Senator MCCLELLAN. Let him close.

Senator ERVIN. I oppose the confirmation of Mr. Sobeloff, because I think his appointment ought to go to South Carolina in accordance with the tradition and custom which has prevailed in the circuit, and also because I can only draw the inferences from this Baltimore speech that Mr. Sobeloff, as I say, condones, if he does not approve, the usurpation of the power by the Federal courts to amend the Constitution and power to exercise what in effect is legislative functions of Congress; and also, approves the course of an action which has been destructive, which will be destructive of the States as effective legal entities.

That is all I have to say.

Senator EASTLAND. Are there any questions, gentlemen?

Senator BUTLER. Mr. Chairman, I would like to make this remark and I will just be very brief.

Page 167 of the record seems to rebut any such implication. The nominee at that time said this and I am quoting from the top of page 167 of the record:

On the one hand is the obligation to respect separation of powers, for the disregard of the principle would itself lead to tyranny.

I think that statement was made in connection with this very speech. It reflects an attitude

Senator O'MAHONEY. It was made in connection with the speech? Senator BUTLER. That is right. In the speech it does not lend itself to the construction that the Senator from North Carolina has placed upon this speech.

On the other hand, I think it clearly shows a continued appreciation of the Solicitor General for the fundamentals of the American system and his wish to preserve them.

Senator O'MAHONEY. I will say to the committee it has been my feeling in the hearing which I have had the honor to conduct on such nominations to not only put the nominee under oath in his examination, but also to ask the nominee when evidence indicates that it would be appropriate that he assure the committee that the oath which he would have to take as a member of the court to support and defend the Constitution is taken with a full realization of the doctrine of separation of power. I am sure that Mr. Sobeloff would be very glad to take that oath here.

Mr. SOBELOFF. I take that oath without reservation. And I can assure the members of this committee that in every expression and every act in my past, long before this nomination came about, I adhered to that interpretation of our constitutional system.

Senator O'MAHONEY. Also, it ought to be pointed out to as many of the members of the committee as are here now, that the record in the earlier hearing showed clearly that Mr. Sobeloff was not a part of

the Department of Justice at the time the original segregation act proceeding was initiated or decided by the Supreme Court; that his presentation in connection with that was solely with respect to the form the decree should take, and that in his presentation with respect to that decree it would seem to urge that patience and tolerance be exercised in framing the decree. And that there should be no declaration that the decree should be carried out forthwith as was demanded. Senator JOHNSTON. That is something I want to go into.

Senator ERVIN. I believe Mr. Sobeloff now did say in his argument in that connection that he suggested that they have a 90-day period to come up with a plan the school district involved in that, to come up with a plan to meet the supposed constitutional requirement. Three months, mind you, when it took the Court before whom he was making the suggestion, 86 years to discover that the supposed constitutional requirement even existed.

I want to be fair to Mr. Sobeloff. He said in other portions of his argument that if that time should prove insufficient that the school districts involved could apply to the Court for further time.

Mr. SOBELOFF. May I add, Senator Ervin, I did not suggest that they even in the first instance effect desegregation in 90 days. I recognized that it might take many years in some places. It depended upon the conditions. I specifically said that.

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I merely suggested that the court put a time limit requiring the school districts to say what they proposed. They should say "when, and then the District court could pass on that-and if he found it necessary or desirable

Senator JOHNSTON. That is something I want to ask you about. How does the Supreme Court have any authority in the Constitution to grant any time in regard to carrying out the Constitution?

Mr. SOBELOFF. The Constitution? The Supreme Court had already decided the main question-even the last few years for the States, the school districts, did not contest that in that proceeding. They were only discussing the form of the decree.

I took the middle ground. You will remember the NAACP had been insisting on a decree for forthwith desegregation. I opposed that. I said that this thing had to be done with moderation and understanding; that we were dealing with a great many people, and institutions that had been long established.

I was assuming, as the lawyers on all sides were assuming, that the Court's decision was fixed but that the form of the decree would have to provide an orderly method.

Senator JOHNSTON. That is the trouble with your philosophy, as I see it. The Supreme Court has a right to make decisions. They have no right to give you any 1 week, any 2 weeks, 90 days, 6 months, or any time to carry out the law of the land.

Mr. SOBELOFF. But, Senator Johnston, the lawyers for the attorney general of South Carolina, did not argue, reargue, seek to reargue the Supreme Court's decision.

Senator EASTLAND. He asked you if the Court had-he asked you a question, if the Court had the legal authority to give time to carry out a decree.

Mr. SOBELOFF. Assuming that a court has declared that segregation is illegal, and the question put before counsel is, what form of

decree should be drafted, should be signed, the only question we were addressing ourselves to was whether there should be as the NAACP wished, a forthwith decree, or there should be no decree.

Senator EASTLAND. What he asked you was, Did they have the legal authority to do anything but give a forthwith decree? That is what he asked you.

Now, did they or did they not?

Mr. SOBELOFF. Whether they had the right to give anything but a forthwith decree?

Senator EASTLAND. That is the question.

Mr. SOBELOFF. I argued that they should not.

Senator ERVIN. That is what bothers me. How can the lower court deprive me of a constitutional right?

Mr. SOBELOFF. Both sides are contending

Senator JOHNSTON. Does not make any difference.

Senator ERVIN. The court enforcing the 5th section of the 14th amendment says that the Congress shall have the power to enforce the provisions of this article by appropriate legislation. I believe we lawyers are taught that the expression of one thing is exclusion of another.

Now, under that constitutional privilege and that rule of construction, how does the court have any right to lay down any positions for the enforcement of it, anyway?

Mr. SOBELOFF. Whenever an equity court decides the question, the form of the decree usually says how its orders shall be carried out. That is the purpose of that.

Senator ERVIN. Even an equity court cannot override a constitu tional provision.

Mr. SOBELOFF. That would be rearguing the original question. That was not my function, nor did the lawyers for the South argue the converse of that.

Senator ERVIN. What I want to ask you as one lawyer to another, in view of the fifth

Mr. SOBELOFF. As one to another, if I may be pardoned for interrupting, we are all bound by the Supreme Court decision, whether we agree with it or not.

Senator ERVIN. I am not asking you about that. I am asking how you reconcile the action of the Federal courts in undertaking to enforce the decision to lay down the terms and conditions on which the decision is to be enforced, in the light of the constitutional declaration that the power to enforce the amendment by appropriate legislation belongs to Congress and not to the courts.

Mr. SOBELOFF. What would you have had the Solicitor General argue to the Supreme Court?

Senator ERVIN. I would have had him tell the Court when the 5th section of the 14th amendment says that the Congress should have the power to enforce the amendment, by appropriate legislation, that that excluded the power of the Court to enforce the amendment.

Mr. SOBELOFF. That might have been an argument to address to the Court in 1953 when the original case was argued.

Senator O'MAHONEY. Will you pardon me?

Senator JOHNSTON. Let us keep on this. We want to find out something. We are getting into a field I am interested in.

Senator O'MAHONEY. You will get your opportunity.

Senator JOHNSTON. We want to ask him some more questions right along that line. You had not finished, had you?

Senator O'MAHONEY. My interruption is due to the fact that members of the committee are leaving the committee room to go to the floor, and the question which Senator Ervin has raised is a very interesting one.

I am sure it is not necessary to repeat here that Thomas Jefferson and John Marshall had there one of their little controversies over this very same issue, when the Supreme Court handed down a decree and the President said, "Well now, let John Marshall enforce it." And John Marshall could not enforce it.

And the Supreme Court, I think, is without the power to enforce any law of Congress. That is the power of the Executive. The power of the Court is to interpret the law and the Constitution. But this is all a very interesting matter. And we cannot go into it. Senator EASTLAND. I think it is very interesting.

Senator JOHNSTON. We want to get his view and how he stands on these things.

Senator O'MAHONEY. I want to bring him back. I want to find out what would be the convenient time to bring him back. You said you could not be here at 4 o'clock.

Senator EASTLAND. Could we have him before the full committee next Monday?

Senator MCCLELLAN. I have no objection to that, but you have other important bills here that should be gotten out. And if you go into this for the whole hour and a half you will not get anything else done.

Senator WATKINS. Cannot we arrange a special meeting this week? Senator O'MAHONEY. I can.

Senator WATKINS. Of the subcommittee, and the full committee is invited?

Senator O'MAHONEY. I have the merger bills to take up beginning on Wednesday for 3 days and with witnesses coming in. That is why I sought to go as far as we could with the 35 minutes this morning. Senator ERVIN. I cannot be here. I have a primary Saturday and I have not done any campaigning. I have to go down Wednesday afternoon and campaign Thursday and Friday.

Senator O'MAHONEY. What would be convenient for you, Senator Johnston?

Senator JOHNSTON. I do not know.

Senator O'MAHONEY. Tomorrow?

Senator JOHNSTON. It will be next Monday before I will be ready. Senator O'MAHONEY. I want to go ahead with the witnesses that we have.

Senator JOHNSTON. You can finish up with Senator Ervin.

Senator HENNINGS. I am very sorry; I was detained this morning. I was out of town. My plane was late. It got in just a while ago. Senator O'MAHONEY. Would tomorrow be convenient for you? Senator HENNINGS. I will make it convenient. But I want to ask the Chair this

Senator JOHNSTON. We all know that-wait just a minute-we all know when we go into this retirement it will take time. Our majority leader has told us that I will make my speech today on the bill.

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