And they have also done this, Senator: They have in one case—I cannot think of the name of it right now, where they granted certiorari. The case was argued, and then a reargument was ordered, and after reargument they said they denied it-they said that the certiorari had been given improvidently; they dismissed the case.

Senator MCCLELLAN. Well, that could be true, but I am just asking for the plain statement:

Now, when the Court takes the position, "we won't decide this case it is not politically expedient at the moment, or for some other reason we don't think we will decide, although the issues are before us," do you think that sort of a procrastination—what I think is an abusive discretion, the postponement or delay-don't you think that leads to chaos or confusion?

Mr. SOBELOFF. I think there are many questions the Supreme Court could answer which it does not answer, and as a litigant before the Court

Senator MCCLELLAN. You have an opinion; don't you?

Mr. SOBELOFF. I have the opinion, though, that—and only recently I argued for the validity of the 1950 act which requires the Communist Party to register. Both sides thought that it ought to be decided. They granted certiorari, but finally when the case had been argued and they considered it, they said, "No, this is not the time to decide this. We don't reach that point"; and they decided it on some technical question.

Senator MCCLELLAN. Well, I can appreciate at times, with all of the issues not presented that maybe

Mr. SOBELOFF. No; the issue here was presented and argued. Senator MCCLELLAN. Where the pleadings, maybe, or the record is not ripe for a final decision; but where they arbitrarily act, then I don't think

Mr. SOBELLOFF. I do not defend arbitrariness in a court or any other branch of the Government.

Senator MCCLELLAN. That is the point I am making, that in this case, it gives the impression-and it may be accurately a statement of fact, and I am not challenging it, the Court said that for some reason it hesitated or procrastinated or for some extraneous reason, it says that the time is not ripe to act on this-well now, if it is based on the state of the record, if the record is not complete and the record does not justify a final decision, then that is something different; but just arbitrarily to say, "We don't want to pass on this now, we will defer it until some other time", I don't agree with that.

Mr. SOBELOFF. And I agree that the court ought not to act arbitrarily-but, there again, different people have different views on arbitrariness.

Senator MCCLELLAN. I agree, each case stands on its own standards. Mr. SOBELOFF. Yes; I myself have applied to the Court as Solicitor General and they granted ceriorari in Government cases, in, I would say, about 40 percent of our cases, roughly-I have not checked these figures, but it used to be much higher.

I am informed that it is 60 percent now. It dropped down as low as 40 percent a few years ago and it is now 60. It has been as high as 70 percent or more.

Private litigants are perhaps not as scrupulous as the Government in the selection of cases, because they are not responsible for future

development of the law, they are all constantly thinking only of their

own cases

Senator MCCLELLAN. That is, he may take a long chance.

Mr. SOBELOFF. Yes; he may take a long chance, and if a lawyer feels that his client can afford it and that he can get the fee, then he comes to the Supreme Court in Washington and he takes a shot at it, and I believe that they succeed in about 6 percent of their applications.

Senator MCCLELLAN. In those particular cases maybe you would not take the chance, representing the Government interests out of deference to the Court

Mr. SOBELOFF. I would not bother them with it.

Now, the Court, in many cases where they rejected it, there is perfectly good reason, although I might think that it was not justified; but I think I can say abstractedly that arbitrary conduct I do not defend, but I caution that what one man calls arbitrary another man calls correct and inevitable.

Senator MCCLELLAN. But this statement implies here arbitrary conduct.

Mr. SOBELOFF. I do not sanction or defend arbitrary conduct by anybody.

Senator MCCLELLAN. But do you agree, the statement implies that? Mr. SOBELOFF. No; I don't think it implies that they act arbitrarily. I would not be so presumptious.

Senator MCCLELLAN (reading):

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

Now, as I said, of course the records may reflect that it is not ripe. Mr. SOBELOFF. That is right.

Senator MCCLELLAN. And, therefore, it would not ask the question as to whether the issue is important or unimportant.

Mr. SOBELOFF. That is true.

Senator MCCLELLAN. But if that record is complete, then I take the position that the Court has no right to defer and procrastinate and refuse to make decision.

Mr. SOBELOFF. The Government, as I say, being a litigant, has the usual disappointments of a litigant when the Court refuses to grant certiorari and sometimes when we oppose certiorari and they grant it in cases where we feel that they ought not to entertain it, we have that experience, too

Senator MCCLELLAN. Well, I know, as a legislator-I know that I wish many times that certain issues would not come up in the form of bills that had to be voted on, but I cannot defer them, I have to vote.

I think it is the duty and responsibility of the courts and legislators, too, to act when they are really faced with the issues.

Senator O'MAHONEY. Well, let me say, Senator McClellan, as Mr. Sobeloff testified earlier this morning, the action of the Supreme Court is largely voluntary, it may or may not receive cases and it rejects many cases which litigants feel that it ought to hear; and Congress has not provided by law that the Supreme Court should hear all cases which are brought before it on an appeal from circuits or from any other courts.

The statement of Mr. Sobeloff this morning was that it has been the policy of the Supreme Court, practically throughout its life, to

depend upon the circuit court as the last, as a court of final adjudication unless there are special reasons involved.

Now, as I see and interpret the speech that Mr. Sobeloff made, it was made to the judges and the lawyers of the fourth circuit. He was discussing technical matters, which have been recognized here as being perfectly valid, technical matters where the Court may decide, "Well, this case is not ready, so we will not handle it"--but Mr. Sobeloff has declared over and over and under oath and in this speech, he recognizes the doctrine of the separation of powers and in many responses to my questions he has stated that if he were confirmed to this position he would discharge his duties under his oath of loyalty to the Constitution of the United States, and that would include a complete recognition of the exclusive power of Congress to legislate under the Constitution.

Senator MCCLELLAN. Well, Mr. Chairman, the only concern I have about this statement is that it states as a fact, and I cannot controvert that but the use of the term "time is not ripe" carries with it the implications that they are not associated necessarily with the record of the case, that it might be an extraneous circumstance that causes them to conclude that the time is not ripe, and that is the part that I disagree with.

I think that if the record is before the Court, then I think the time is ripe for decision upon the issues that are joined, and to postpone or procrastinate or defer or refuse to hand down a decision simply because the time is not ripe for some extraneous reason, that does not appeal to me as the proper judicial temperament.

Senator O'MAHONEY. And in the case that you mentioned, where it has come before the Court and there is a postponement of the decision because of political or other reasons, that would not, in my judgment, be justifiable, either.

Senator MCCLELLAN. That is what I am talking about, Mr. Chairman, and that is what is implied here, in my interpretation of it.

Senator O'MAHONEY. I don't believe it makes that implication, bebecause the speech was addressed to lawyers, to technical lawyers.

Senator WATKINS. He is reciting what actually has taken place and speculating upon what the Supreme Court may or may not have in mind when it denies certiorari or grants certiorari.

Senator MCCLELLAN. That is true; I was just getting his view on it. I was trying to get your own personal view.

Mr. SOBELOFF. I believe the Senator was asking about arbitrarily rejecting

Senator MCCLELLAN. What I mean by arbitrariness-that implies that there were extraneous considerations, that are not a part of the record.

Mr. SOBELOFF. I was talking in connection with this time-let me illustrate the sort of thing

Senator MCCLELLAN. Well, I am going to read this speech and study it thoroughly. I have not done it.

Mr. SOBELOFF. The sort of thing that I was talking about, and we have this constantly: We will apply for certiorari in a case involving interpretation of a statute. They will decline. Why?

Well, we don't know. They give no reasons; but we may think it is because there is no conflict between that circuit and another circuit.

Then the same question arises later when another circuit decides this case contrary to the original circuit. You have a conflict. They may, in that case, or they are more likely in that case, to grant certiorari.

Now, there have been illustrations where timing is important

Senator MCCLELLAN. That is an illustration of what might be a valid extraneous matter that is not present in the record.

Mr. SOBELOFF. Yes. There is another illustration, Senator. We frequently feel-well, there is a decision made against the Government by the lower courts, and we do not apply to the Supreme Court to review it because the subject is not of recurring interest, the statute under which that arose has been amended or repealed. We may think it was decided wrong in the lower courts, but the thing is not of permanent importance at that time, and yet, a few years back it might

have been.

Now, that is an illustration of how time affects judgment.

Senator MCCLELLAN. Well, I can appreciate that in your position you are always and should be, I think, properly so, more or less reluctant to take every case decided against the Government, appeal it. I can appreciate that.

Mr. SOBELOFF. I could not; it would be a waste of money.

Senator MCCLELLAN. That is right. Also, you would have to exercise discretion as to those cases that you thought were important, where you feel it was necessary to go to the Supreme Court to correct this wrong that has been committed.

Senator O'MAHONEY. May the Chair say that, believe it or not, there is another nomination of a judgeship to the circuit court to be heard by a subcommittee of this committee. It was scheduled at 10:30, but in deference to the conclusion of this hearing, we have not been interrupted.

Unless there are some pertinent questions, we will adjourn the meeting now.

(Whereupon, at 10:50 a. m., the subcommittee adjourned.)