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tration and following his retirement from that office argued a number of important cases before our court. His appointment as chief judge of the court of appeals of Maryland speaks for itself of the esteem in which he is held by the people of that State. The confirmation of his appointment would bring to our court a man of outstanding ability, of wide experience at the bar and of experience as a judge upon the highest court of his State.

Now, the next paragraph I will read, because I believe it bears on the question we were discussing this morning:

I understand that criticism has been made of Judge Sobeloff on the ground that, in a speech which he made before the judicial conference of the fourth circuit in June 1954, he stated that "the Supreme Court is not merely the adjudicator of controversies, but in the process of adjudication it is in many instances the final formulator of national policy." I heard that speech and saw nothing in it to criticize. That it is the proper function of the Supreme Court to interpret the Constitution of the United States and acts of Congress and that such interpretation is often the final formulation of national policy has been recognized so long that it has never occurred to me there could be any doubt about the matter. Chisholm v. Georgia, Marbury v. Madison, Gibbons v. Ogden, the Standard Oil case, the Appalachian Coals case, the Washington Minimum Wage case, the Mortgage Moratorium case, the Steel Seizure case, and many others, which will doubtless occur to you without my mentioning them, illustrate what I mean and what I am sure Judge Sobeloff had in mind in the passage of his speech which is criticized. I see nothing in what he said that would justify the holding up of his confirmation and I sincerely trust that we may have the benefit of his services on our court as soon as is reasonably possible. With high personal regards and great respect, I am,

Sincerely yours,


I think, Senator, the judge wrote you a letter on May 2, 1956, and if it has not been made part of the record, perhaps it should be. Senator O'MAHONEY. It will be made a part of the record. (The letter referred to follows:)


Senate Office Building, Washington, D. C.

MAY 2, 1956.

MY DEAR SENATOR O'MAHONEY: I thank you for the invitation to make a statement before the subcommittee of the Senate Judiciary Committee considering the nomination of Hon. Simon E. Sobeloff to be one of the United States circuit judges for the fourth judicial circuit.

I have known Judge Sobeloff for more than a quarter of a century and have the highest opinion of his character and ability. He made a splendid record as United States attorney for the district of Maryland and following his experience in that office established himself as a successful practitioner of high standing at the bar of Baltimore City. His standing with the people of his native State is attested by the fact that he was chosen as chief judge of their court of appeals, a position which he filled with distinction and which he left to become Solicitor General of the United States. He is a careful and learned lawyer, a man of high principle and he has had wide and varied experience as a lawyer and a public servant. I feel that he will add strength to the judiciary of our entire country as well as to the judiciary of this circuit.

I shall be glad to have this letter filed with the proceedings before your subcommittee.

With high personal regards, I am,

Sincerely yours,


Mr. SOBELOFF. I think, unless the committee has questions, I have nothing further.

Senator O'MAHONEY. Any further questions, Senator Watkins? Senator WATKINS. I have no questions. I am wondering, however, if Judge Sobeloff has said all he cares to say on the speech called to his attention by Senator Ervin.

Mr. SOBELOFF. I think I have said all that has to be said. I have read what my views are, and I have read excerpts from that speech which show the sense in which I was speaking.

I may repeat, I made that speech in the presence of all the judges in the circuit court, including the Chief Justice of the United States and about 300 lawyers mostly from the South--from Virginia, North Carolina, and South Carolina.

There was not a single breath of criticism about it. The speech was later published in the American Bar Journal, and I received commendation for it. No one wrote me any comments about it, and I have never heard any criticisms until it was attempted to be used in, I think, an unwarranted misinterpretation in connection with these hearings. Senator WATKINS. And you don't care to repeat those comments that you made on the

Mr. SOBELOFF. No, I think it would encumber the record unnecessarily, but I may say that I illustrated the truth of my remarks by cases which have been decided by the court-I could go on, but I think it is a very orthodox doctrine, I think lawyers will confirm this, for 150 years, since John Marshall decided Marbury v. Madison.

Senator WATKINS. I have no further questions.

Senator O'MAHONEY. Senator McClellan?

Senator MCCLELLAN. Mr. Sobeloff, will you point out to me the portion in your speech respecting "appropriate time"?

Mr. SOBELOFF. I may repeat what I said while the Senator was out of the room. I was discussing the

Senator MCCLELLAN. I do not have the exact quotation. I would like to have it, just so that I may have it before me.


Senator MCCLELLAN. Well, don't delay, just go ahead and discuss it.. Senator O'MAHONEY. May I interrupt?


Senator O'MAHONEY. I think that Mr. Hogan was getting it.
Mr. SOBELOFF. I have it.

Senator O'MAHONEY. Yes, but I wanted to put it in the hands of the Senator.

Senator MCCLELLAN. Well, it is all right, just so long as I know what he is referring to. I can listen while he reads it.

Mr. SOBELOFF. Here is the paragraph [handing document to Senator McClellan].

When you read the paragraph, Senator, I will proceed.

Senator O'MAHONEY. What is the first sentence of the paragraph? Mr. SOBELOFF (reading):

The Court may reject a case not because the case is unimportant

Senator O'MAHONEY. All right. I can find it.

Mr. SOBELOFF (reading):

*** but because it thinks the time is not ripe for decision.

Senator MCCLELLAN. That is it.

Mr. SOBELOFF. That is the num of it, that has been criticized.

Senator MCCLELLAN. Yes, as I recall.

Mr. SOBELOFF. Yes. Now, Senator; I think that the context should be understood. I was addressing this group of judges and lawyers. I was talking about the work of the Solicitor General's office. It was on June 29, 1954, and I was giving them impression of the office.

The important thing, the most interesting thing to the bar, always, I have found since I went into office, is that they want to know about the work of the Supreme Court, and particularly they like to speculate about what moves the Court to grant certiorari or refuse it in a particular case.

I was illustrating the difficulties of that speculation.

I said to them that:

The Court, as you know, does not customarily declare its reasons for granting or denying certiorari. There are nine minds that have been know to disagree, and none has fully revealed itself. We know that different approaches are possible. One Justice may vote to grant or deny certiorari for one reason, and another may agree with him for an entirely different reason. We are told on the highest authority that denial means nothing more than that four favorable votes were not available. Under these circumstances, how is the Solicitor General to divine an overall plan of the Court in the selection of cases? There is no pat answer, for there are no clear criteria. What is a case for the Court is not precisely measurable. It has to be felt; it cannot be demonstrated. There

are many surprises.

Now then, I illustrated from recent experience. I said:

At the beginning of the last term the Federal Power Commission joined with the Phillips Petroleum Co. in petitioning for certiorari to settle an important question as to the jurisdiction of the Commission in the regulation of the natural gas industry. The petition was denied. Phillips then filed a motion for reconsideration. The Government declined to join in this motion out of deference for the rule which prohibits motions for reconsideration except where new matter is to be presented. The Solicitor General's office is perhaps more scrupulous in observing this rule than are some others. To the surprise of the profession, certiorari, though previously denied, was granted.

Then I went on to say:

Again, a man convicted by the State courts of New York of murdering his parents sought a certiorari to raise the validity of his confession. He claimed that with the connivance of State officers a psychiatrist ostensibly called to treat him had extracted the challenged confession. Certiorari was denied. Nevertheless, most unexpectedly the Supreme Court saw fit to review the same question when it was raised by the same defendant on habeas corpus in a Federal court.

Shortly before coming to Washington I paid courtesy calls on each of the Justices. No two seemed to have exactly the same standards for certiorari; most of them said frankly that the standards defy formulation. One Justice told me that the sum involved had little weight with the Court, but that he personally was influenced by that factor.

I asked him what was the dividing line, and he answered quite sincerely that when he saw the Government lose $20 million he thought the case might be worth looking at. He spoke this as one might confess a personal idiosyncracy. Then I went on:

The Court may reject a case, not because the question is unimportant, but because it thinks the time is not right for decision.

Now, that sentence has got to be taken in that context. I went on to show what the Court does. Now, that has been fixed upon by some people

Senator MCCLELLAN. I want you to understand, I am not questioning the truth or the accuracy of the statement. I think it may be quite accurate

Mr. SOBELOFF. I think it is accurate, I think so, but it has been sought to attribute to me a view which I do not entertain at all; namely, that the Court can decide at any time what the law shall be, what the policy shall be, and I have read this morning from a speech, from this speech various sentences which show that I recognize that

the Court has no such broad powers. That I recognized fully, that the Government is a government of distributed powers, and that each branch of the Government has to respect the functions of the other branches, and I said this in this very speech, that there is the obligation to respect the separation of powers, for the disregard of this principle would itself lead to tyranny, and I added:

Personalized judgments to meet particular cases are, we know, fruitful sourcesof future trouble.

Now, that is not the language of one who does not believe, who does not recognize

Senator MCCLELLAN. That is in this speech?

Mr. SOBELOFF. The same speech, and the concluding sentence, Senator, of the same speech says, in summarizing what the Solicitor General's job is:

As the lawyer for the Government and as an officer of the Court acting within the proper limitation of his special function, his constant endeavor must be, without falling prey to his own fetishes, but obedient to the legislative policy laid down by others, to channel this mighty stream so as to strengthen the foundations of our society, to make freedom more secure, and to promote justice between man and man and between the Government and its citizens.

And may I, Senator McClellan, read again the paragraph I read this morning from a speech that I made here in Washington on September 16, 1954, about 3 months after this fourth circuit speech beforethe Ninth Annual National Conference on Citizenship at the Statler Hotel, which was called by the Attorney General, in cooperation with the National Education Association and others, and there were present six members of the Supreme Court and a lot other judges and lawyers and reputable people. It was presided over by Judge Parker, incidentally, and this paragraph is in it.

The theme of the speech was, Who Guards Our Freedoms? And the idea of the whole thing was that everybody has a role, the citizens' role was important, and I was emphasizing that, but I was saying that people sometimes think that the courts can set everything to rights. That is a mistaken notion, that the court has limited jurisdiction, and this is what 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 disapprove, 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 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 said this morning that this is a very orthodox and traditional doctrine, and it was my duty then and it has been my duty and will be my duty if I am confirmed and it has been my opinion ever since I formed any opinion on the subject, and it would be my guide, necessarily


Senator MCCLELLAN. You spoke of unhappiness, or complaining when the courts did not set aside a law that may be a bad law. you share the same anxiety when the court usurps power that the Constitution apparently does not grant?

Mr. SOBELOFF. If you are asking me whether I sanction the Court usurping power, of course I do not sanction the Court usurping power; but there is always argument abo t what is "usurpation."

Senator MCCLELLAN. There is a great deal of concern about that today, as you know.

Mr. SOBELOFF. Yes, sir.

Senator MCCLELLAN. Among those who think that the Court has gone too far.

Mr. SOBELOFF. I am opposed to usurpa ion. What is usurpation is a matter that requires very careful consic eration.

Senator MCCLELLAN. Now, do you ag ee with this philosophy or this practice that you referred to, that the Court may reject a case not because the question is unimportant, but because it thinks that the time is not ripe for decision?

Mr. SOBELOFF. That is true, they do that every Monday---
Senator MCCLELLAN. I am asking you if you agree.

Mr. SOBELOFF. They do

Senator MCCLELLAN. I did not say they do; I said, What was your view?

Mr. SOBELOFF. I agree with that.

Senator MCCLELLAN. You agree with the-what do you mean now by "ripe for decision"?

Mr. SOBELOFF. Well now, let me give you an illustration. You will remember a couple of years ago, Senator, there was some Indian who was refused burial in a white cemetery, and I think President Truman ordered him to be buried in the National Cemetery here because he had served in the war; he was a veteran.

The family sued the cemetery company for damages. They lost in the State court.

They applied, after they had lost all the way, to the Supreme Court of Iowa; they applied for certiorari in the Supreme Court. The Supreme Court denied certiorari.

Later, certain other cases having been decided, they felt that they ought to look at this again and they revoked their denial and granted it.

I don't say they are right in that particular instance. I am only recognizing that it is a correct statement; that they do consider time. Senator MCCLELLAN. Well, I am asking you about the rightness or wrongness of it. You said that you recognized that they do. That being conceded, what is your position? Do you think it is right to refuse to pass on the cases when the issue is squarely before the Court, because they think the time is not ripe?

Mr. SOBELOFF. I suppose they think the time is not ripe; I don't


Senator MCCLELLAN. You stated it is a fact, and I am assuming it is a fact.

Mr. SOBELOFF. They do; I know they do. They don't give their reasons why they do.

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