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There will be no voting today. Then tomorrow we are to go into the voting on the retirement bill which will take practically all of tomorHe announced that from the floor.


Senator BUTLER. What time do we go in tomorrow?

Senator JOHNSTON. I do not know.

Senator BUTLER. Why not meet tomorrow morning?

Senator HENNINGS. I would like to renew my question. How many more witnesses are there scheduled?

Senator EASTLAND. Senator O'Mahoney is conducting the hearing. He can tell you.

Senator O'MAHONEY. The witnesses are only Senator Ervin to conclude, Senator Johnston, and Mr. Sobeloff to reply. I think that everybody who wants to testify has testified. I have numerous letters here which will become a part of the record. I think we can do it in the morning.

Senator EASTLAND. I am informed by the clerk that the hearing in the morning is on Charles Whittaker to be nominated for the circuit court.

Senator HENNINGS. I am very much interested in that. He is from my State.

Senator O'MAHONEY. I now call the subcommittee to meet tomorrow morning at 9 o'clock in this room. And we shall go as far with the hearing as we can.

Senator EASTLAND. The hearing is adjourned.

(Whereupon, at 12:30 p. m., the committee adjourned to reconvene at 9 a. m., Tuesday, May 22, 1956.)


TUESDAY, MAY 22, 1956



Washington, D. C.

The subcommittee met, pursuant to adjournment, at 9:10 a. m., in room 424, Senate Office Building, Senator Joseph C. O'Mahoney (chairman of the subcommittee) presiding.

Present: Senators O'Mahoney, McClellan, Ervin, Wiley, and Watkins.

Also present: Joseph A. Davis, chief clerk of the committee. Senator O'MAHONEY. The subcommittee will come to order. Mr. Solicitor General, will you come over here, please

Mr. SOBELOFF. Yes, sir.

TESTIMONY OF SIMON E. SOBELOFF, SOLICITOR GENERAL OF THE UNITED STATES, ACCOMPANIED BY THOMAS HOGAN, ASSISTANT TO THE DEPUTY ATTORNEY GENERAL; AND JOHN V. LINDSAY, EXECUTIVE ASSISTANT TO THE ATTORNEY GENERAL-Resumed Senator O'MAHONEY. Senator Ervin, have you completed? Senator ERVIN. Yes, except that, Mr. Chairman, yesterday morning I used an adjective which I do not like. I was talking about Presidents, and Senators, and Congressmen, and judges, and I want to have permission of the committee to take that adjective out and change it to "unsatisfactory."

In other words, I want to make it clear that my opposition to the confirmation of Mr. Sobeloff is based on a matter of principle, and that I have no desire to say anything to be construed as any kind of a personal reflection, because it was not based on personalities, at all. Senator O'MAHONEY. I think it is perfectly clear from your testimony yesterday that you meant no personal reflection to be cast upon the nominee.

Senator ERVIN. One other thing. I spoke yesterday that in recent years the Supreme Court has handed down a number of decisions which have impaired the capacity of the States to enforce their own laws in their own courts against their own citizens.

In that connection I failed to state the action of the Supreme Court in overturning a number of decisions from the State of Illinois that the State of Illinois has passed, what is known as a post sedition hearing act. This act has been duplicated in a number of States.


So, as the result of that decision, we now have this peculiar circumstance, that first a State tries one of its own citizens for violation of its own laws in its own courts and then this citizen is permitted to bring a proceeding under the Post Sedition Hearing Act which in effect is a process by which the citizen tries the court, so that you have two State proceedings, and then after the second State proceeding is tried, then the man can go into the lowest Federal court, the district court, and have a third trial.

Now, I have read since yesterday the complete statement that appears in the record of Mr. Sobeloff's speech at Hot Springs, and I do not find anything in it which alters my opinion, as previously expressed. In fact, I find my opinion fortified by this statement, and I quote, and it is in connection with where Mr. Sobeloff is talking about the Supreme Court, that the Supreme Court delays action on cases, sometimes, he spoke about the timing of the Court's action and in speaking he has a reference where he cites the school segregation cases as an example, and he says this, and I quote:

This should, therefore, occasion no wonder, if the Court seeks the appropriate time to consider and decide imprtant questions just as Congress or any other policy-making body might.

Now, the word "appropriate" means to me, there, that it is a designation used by Mr. Sobeloff to describe his attitude towards these cases and not the attitude of the Court and it means, in plain and simple English, that the Court selects a time which is especially suitable or fit or proper to make one of these policy-making decisions.

I take the position that a policy-making decision, which is a revolutionary matter on a constitutional point, there is no good, especially suitable or fit or proper time for a court to exercise usurped powers, and for that reason I did not question my former construction of this


Senator O'MAHONEY. Let me ask Mr. Sobeloff this question.
Mr. SOBELOFF. Yes, sir.

Senator O'MAHONEY. In connection with the point that you makewhich, Senator, I think was gone over at the hearing which you were unable to attend:

In what sense, Mr. Sobeloff, did you use the word "policy" or "policymaking" in that article?

Mr. SOBELOFF. I did not, Senator, and I would like to point out that the speech that I was making in the fourth circuit was before a group of judges and lawyers on a matter of technical professional interest.

I was pointing out that the Supreme Court's jurisdiction, as we all know, is largely voluntary, and it is only in a few cases there is ever a right of appeal to the Supreme Court and the bulk of the cases is what it voluntary accepts.

On petitions for certiorari it is purely within their discretion whether they take jurisdiction or not.

I was reviewing with them the various aspects of the cases which might or might not appeal to the Supreme Court as good reasons for granting certiorari and I pointed out that the amount involved is not decisive, they usually do not pay much attention to the question of amount, but I pointed out that one of the Justices said that he personally thought, he himself would consider the amount if it was very large, and I asked what the dividing line was and he said that if $20

million was involved, if it was costing the Government a loss of over $20 million, that he would take another look at it.

And then I illustrated that even where there was a conflict between the courts, that is not always a full guaranty that the case will be taken.

And I pointed out that 25 years ago Chief Justice Taft said that a man is entitled to 1 appeal, not 2, and that increasingly, the courts of appeals are the final deciders of questions, not the Supreme Court, and that the Supreme Court regards its jurisdiction as that of a gyroscope, to keep the ship on an even keel, and they will only take matters that they consider important and at a time when they think it will help to clarify the laws by a decision on the point.

I was not saying, and would not say, that they have the right to determine policy. I find in the speech references which indicate the very opposite. Let me read you some of the things that this speech


Now, here in this portion, I am talking about the dilemma and I


It is a difficult dilemma. On the one hand is the obligation to respect the separation of powers, for the disregard of this principle would itself lead to tyranny. Personalized judgments to meet particular cases are, we know, fruitful sources of future trouble.

Senator ERVIN. You are speaking about cases involving administrative remedy?

Mr. SOBELOFF. I was speaking specifically of administrative remedies, but that applies to all cases, and my judgment and my belief, and I have never expressed any contrary belief, is that it is the duty of the court to respect the separation of powers. Now, I will show you a more explicit expression of that same doctrine.

Senator WATKINS. That is from the same speech?

Mr. SOBELOFF. That is in the same speech. And I said the same thing in a speech at the Waldorf-Astoria before the Alumni Association of the New York University Law School, almost in the same words and in a speech at the Statler Hotel on September 15, 1954, prepared for delivery before the Ninth Annual National Conference on Citizenship, called by the Attorney General and participated in and sponsored by the National Education Association and other groups, and in the presence of the Chief Justice and 5 or 6 Associate Justices and over 1,000 people, the subject being, Who Guards Our Freedom?

The whole scheme of the speech was to emphasize that this is a government of separate powers, separate departments, that it is the duty of each to respect the limitations upon itself and not assume the power that has been delegated to others. Here is one paragraph which expresses more fully what I had in mind. I said:

Who guards our freedoms? Not the courts alone; in this area their function, which I reverence, is the limited one of deciding what is constitutionally permissible. Strive as they may to square law with justice, by and large theirs is not the duty or the right to censor the wisdom of the policies made by Congress or legislatures, or even in many instances the acts of administrators. Although the courts have on numerous important occasions made historic contributions to freedom's cause, informed laymen as well as lawyers know that courts are not empowered to set aside every law of which they disapproved, even when they feel that it may lead to injustice. Not everything that is unwise or unfair is necessarily unconstitutional. We may, and often do, chafe when courts

decline to exceed the limits assigned to them, but experience with so-called "people's courts" in certain other lands, where judges are released from the restraints of law and are free to follow arbitrary notions of justice, should provide ample warning of the dangers of confusing the legislative function with that of adjudication.

I think that is a very traditional doctrine and I am sure, Senator, that you would approve every word of that.

Senator ERVIN. Yes. You have not explained the use of the word "appropriate."

Mr. SOBELOFF. Well, the word "appropriate" is, I think, one that has a very clear meaning. Whenever you give a court discretion as to whether it will entertain jurisdiction or not, you are saying to them, "You decide when is the appropriate time for the decision of a particular, certain question."

And they do that every Monday when they hand out orders granting or denying certiorari.

I illustrated in this very speech in the fourth circuit instances where they at one time refused to entertain a question and at another time they accept jurisdiction, and I said that they do not issue any opinion when they deny certiorari or when they grant it; they usually give no reason, and we can only speculate.

One of the Justices has said, in an article about their work, that on the denial of certiorari, all it really means is that there were not four votes in favor of granting certiorari; but various factors may enter in, and I speculated as to what some of those are, which is a speculation habitually engaged in by lawyers practicing before the Supreme Court.

That is far from suggesting that the Supreme Court has the right at its whim to change the law and I have, in that speech and other speeches, again and again recognized and stated that I am a believer in the separation of powers, and I think that the courts have not the legislative function and they cannot set aside legislation simply because they disagree with Congress and that the policymaking power is a legislative power and not a judicial power.

Senator O'MAHONEY. Can you tell this committee solemnly, since you are under oath, that in the performance of your duties as judge of the circuit court, if you should be confirmed, it will be your policy continuously in all cases brought before you, to recognize the separation of powers in the Constitution of the United States?

Mr. SOBELOFF. I certainly would. That would be my oath of office and that is entirely consistent with the philosophy of government that I have always had.

Senator O'MAHONEY. Any further questions?

Senator ERVIN. Mr. Sobeloff, going back to the school segregation cases and to the implementation decision, how do you reconcile the action of the Court in applying that, that is, that if the States, the school districts, did not do something, that the Court would step in and decide how it should be done? How do you reconcile that thought with the provisions of the 14th amendment which confers upon Congress the power to enforce the provisions of the amendment by appropriate legislation, in the fifth section?

Mr. SOBELOFF. Senator Ervin, in the first place, I do not recall, and I wish you would show me, where the Court said anything about stepping in. I do not recall anything.

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