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judge of the Fifth Circuit Court of Appeals. I recall the case from the press accounts of it at the time. The late Senator John H. Overton and the present senior Senator from Louisiana, Mr. Ellender, carried on a determined and successful opposition to the confirmation of former Governor Allred on this sole ground. No question was ever raised in that case concerning the personal fitness of the nominee for membership on the Fifth Circuit Court of Appeals.
Senator DIRKSEN. What year was it?
Senator JOHNSTON. I can look that up. It was in the thirties. Senator HENNINGS. He was a former Governor of Texas.
Senator JOHNSTON. It was in the late thirties. I was Governor at the time.
He had been a good district judge. He had made an acceptable record as Governor of the great State of Texas. He was not charged with any misconduct. The sole issue involved was the failure of the President to recognize and follow the precedent and custom of giving to each State in rotation a representative when a vacancy occurred.
I think the Senator from Maryland kind of agrees with me on that. I know the position he is in. He certainly would be saying that if South Carolina has one judge and another was appointed. In the rotation of appointments, a vacancy should be allocated to the State entitled to such a vacancy. The same situation prevails today with respect to the State of South Carolina as prevailed at that time with respect to the State of Louisiana. It is South Carolina's turn to be recognized.
Senator DIRKSEN. This is just a custom.
The CHAIRMAN. It is a custom that has been recognized by the Senate.
Senator JOHNSTON. It has been recognized by the Senate.
I protest against this slight on my State. It constitutes a grave reflection on the ability and integrity of many worthy constituents of mine.
There are now three judges on the United States Circuit Court of Appeals for the Fourth Circuit.
They are Chief Judge Parker from North Carolina, Judge Dobie from Virginia and retiring Judge Morris Soper from the State of Maryland.
Why the Attorney General and the President are willing to overlook the hundreds of good lawyers and the many fine judges in the State of South Carolina and nominate a lawyer from the State of Maryland when the State of South Carolina is entitled by custom and rotation of appointments to have one of its citizens nominated for the vacancy is a question they should be made to answer. The net result, of course, is an abrogation and violation of the precedent and a reflection upon the integrity and ability of the many able lawyers in South Carolina qualified to be nominated.
Senator HENNINGS. I don't want to interrupt the Senator except to ask a question. Is a South Carolina judge now sitting in Puerto Rico?
Senator JOHNSTON. Not that I know of.
Senator HENNINGS. You have had one. Judge Cooper.
Senator JOHNSTON. There was one down there; Judge Cooper. He is dead now.
Senator HENNINGS. I knew that. Who was appointed to succeed him?
Senator JOHNSTON. I don't recall. I just don't recall. I don't remember exactly who. At one time I think Senator Chavez' brother was down there for a while.
Senator HENNINGS. He was down in one of the courts, whether it. was in the United States court I don't know.
Senator JOHNSTON. He came home and ran for an office. They have just 1 court there, 1 district court.
Senator BUTLER. Is it not true that there are two additional vacancies now in our fourth district court?
Senator JOHNSTON. My understanding is that two are serving on it at the present time.
Senator BUTLER. But they retired and are awaiting replacements?
Senator JOHNSTON. They will serve until someone is appointed and qualified in their place.
Senator BUTLER. Isn't it reasonable to assume that if South Carolina has the valid claim you speak of, she will be recognized in 1 of those 2 vacancies, those 2 cases?
Senator JOHNSTON. You will also hear the same cry from West Virginia, and when she raises the cry I will be with her. I think it ought to go to South Carolina and then to West Virginia.
The CHAIRMAN. Under the custom who is entitled to this specific appointment?
Senator JOHNSTON. South Carolina. That is the position I am taking. When you are blocking us out you are blocking West Virginia out for the next appointment if you should appoint one from South Carolina.
Senator HENNINGS. What percentage of the caseload of the circuit court of appeals comes from the State of South Carolina as against the State of Maryland?
Senator JOHNSTON. I don't know. I haven't looked into that. I couldn't answer that without having the facts before me. Do you have them, Mr. Butler?
Senator BUTLER. No; I don't, Senator.
Senator HENNINGS. I ask that question because I undertook to suggest to the President in the case of appointment of a replacement for Judge Whitaker that a Missourian be appointed to succeed to the United States circuit of the appeals for the reason that we had 50 percent of the caseload of that circuit when he retired as judge. Senator JOHNSTON. I don't have that.
As a lawyer I respect precedent; I respect custom. The great body of our law is built on custom and precedent. Whether, as Senator Ervin pointed out so well on Monday, May 21, the Supreme Court is willing to abide by precedent, and he cited well-reasoned cases establishing those precedents, or whether they prefer to establish a new philosophy and a new way of transacting their court business, I feel very strongly that we in the Senate, and particularly those of us on the Judiciary Committee, each of us being a lawyer, should stand by these established precedents, guard and defend them and whenever anyone seeks to abrogate them or violate them we should promptly put our stamp of disapproval on such a departure.
The CHAIRMAN. Could I ask you a question?
Senator JOHNSTON. You may.
The CHAIRMAN. In the fifth circuit doesn't Texas have a much greater caseload than the State of Louisiana, yet the Senate refused to confirm Judge Allred in Texas and served notice on the White House that they would have to nominate someone from Louisiana, and that was done.
Senator JOHNSTON. I would certainly think that is true. Although again I do not have the records before me but the State of Texas being as large as it is and as much business as they have and as much wealth as it has, I would certainly think it has probably twice the amount that you might have in Louisiana. I would think that would be a reasonable assumption.
The CHAIRMAN. Three times.
Senator JOHNSTON. The custom is a salutary, a democratic one, and we of all Senators should follow it to the letter.
Mr. Chairman, I feel very strongly that if there were nothing else in this entire case except this fact alone, this fact in and of itself would be a just and sufficient reason for the Judiciary Committee to refuse its assent to this nomination. It is our responsibility as members of the Judiciary Committee in the performance of our duty to uphold these precedents. The Constitution gives us the power in sharing with the President the responsibility for our lifetime Federal judges. Senator BUTLER. Is it the Senator's suggestion that Maryland have no representation on that court?
Senator JOHNSTON. You had it for how many years?
Senator BUTLER. All the important litigation from Washington is brought in Maryland, all of the Collection Division of the District of Columbia is in Maryland. A great majority of the work of the court is Maryland work and we have historically had a judge on that court. I think Maryland is entitled to a judge on that court, myself.
Senator JOHNSTON. We share it to the extent we give or withhold our consent to confirmation.
Answering the Senator from Maryland, I naturally would take a different viewpoint to his and would certainly think that someday, sometime, South Carolina should have some representation. She has not had any representation for the last 20 years.
Senator BUTLER. That may be perfectly true but that should not deprive Maryland of a judge on that court. That is where the majority of the business originates and she should have representation.
The CHAIRMAN. We should determine what the custom is and if South Carolina is entitled to it, are we going to change the custom? Senator JOHNSTON. If we try all these civil rights cases that somebody is anticipating having, I will assure you that South Carolina will have more cases in the court than Maryland.
The CHAIRMAN. I see here from former Senator Charles E. Daniel this statement:
Since South Carolina last had an appointment (1913) Maryland and Virginia each had 2, while West Virginia and North Carolina have each had 1.
Senator DIRKSEN. I wonder if you would clarify that so far as active membership is concerned and those that are in a retirement status. What is the total number?
Senator JOHNSTON. We have three members of the court.
Senator DIRKSEN. You are entitled to how many?
Senator JOHNSTON. Three. They are just acting until their successors are appointed and confirmed.
Senator O'MAHONEY. There is another vacancy in fact on this court. I see no reason why the President is holding up the selection of a nominee for that other vacancy. The judge whose place Mr. Sobeloff has been nominated to take is a Maryland judge. There is no question about the fact that there is a substantial proportion of the work of the circuit originating in and around Maryland. There is no question either about the fact that all of the States in the circuit at one time or another should be represented and I feel that since another judge is beyond the age of retirement and is retiring and is serving only until his successor is appointed, that the President should not delay longer in sending up a nomination.
The President should no longer delay in sending up of another nominee or nomination for this court. That would completely take out of the case the argument of States rights and the right of South Carolina to be represented with which I agree.
The CHAIRMAN. When did the vacancy occur?
Senator O'MAHONEY. I don't know.
Senator BUTLER. Within 6 months?
The CHAIRMAN. How long has there been a vacancy, Mr. Hogan? Mr. HOGAN. Since February 1, 1956.
The CHAIRMAN. It is very peculiar that the Department is holding that nomination up. It is proof that they don't want to do it, to do the right thing by a little State like South Carolina.
Senator HENNINGS. Much of what Senator Johnston has said about the right of South Carolina to be represented on the court is true. I accordingly would move that the chairman of this committee communicate with the Attorney General to inquire as to why there has been no name sent up and urge upon him that the name be sent up so that this matter may be adjusted to the satisfaction of South Carolina, that she may get her due and that may not be used as leverage against another nomination of which some of us emphatically approve. The CHAIRMAN. The chairman has already asked that question and has not got any satisfaction.
Senator DIRKSEN. Can we determine here now on the basis of all these representations 2 or 3 things. No. 1, is it agreed now that there definitely exists a vacancy on the fourth circuit?
Senator O'MAHONEY. There are two.
Senator DIRKSEN. In addition to the one for which this nominee was nominated.
Senator BUTLER. Isn't Judge Parker now somewhat beyond the date of retirement?
Mr. HOGAN. I believe he is.
Senator BUTLER. He is waiting to retire. So there will be many vacancies.
Senator DIRKSEN. It is agreed there is a vacancy in addition to the vacancy to which Simon Sobeloff has been nominated.
Senator BUTLER. That is agreed.
Senator DIRKSEN. Senator, the whole question of the rotation and the right of States to share in membership on the court would be cured
if another name were sent up and if South Carolina were then given consideration in that respect.
Senator JOHNSTON. You will then hear the same cry from West Virginia.
Senator BUTLER. You heard it before we know when Maryland got the second judge.
Senator O'MAHONEY. Let's make it clear, as Senator Dirksen said, 2 of the judges on this court have already passed the age of retirement and 1 is about to reach that. There will be 3 vacancies on this court within 6 months. There is no reason why the 2 vancancies now existing by reason of the fact that 2 judges who have passed the retirement age and want to retire are holding on because their successors have not been nominated and confimed. The subcommittee which handled the Sobeloff case is satisfied-and so reported that Solicitor General Sobeloff is a competent, able, honest, industrious lawyer, that his record as a judge in Maryland is in the Department of Justice, his record as a practicing lawer accorded with the highest standards of the bar and that there is no reason in his professional conduct why he should not be confirmed. On the contrary, there is every reason to believe that he should be confirmed. We know, however, that there was another judge for whom a nomination can be sent immediately. This session of Congress is drawing to a close. Both the executive branch of Government and the legislative branch of Government are hoping that the day for the adjournment of this Congress will not be too long delayed.
We all know that to be a fact. If the Department of Justice delays longer, in making this second nomination which it can make now, that will just confuse the issue, it will make more disagreement and dissatisfaction.
I can't for the life of me see why that other vacancy should be postponed until a next session of Congress.
The CHAIRMAN. Senator is this true: That the Department the Administration is breaking a custom in giving the State of Maryland this appointment?
Senator O'MAHONEY. I don't think that
The CHAIRMAN. That this is an appointment to which the State of Maryland is not entitled and when you break that custom, and then they send another nominee up, then they provoke a fight between South Carolina and West Virginia.
Senator BUTLER. It is not an invariable custom. It has been broken more than it has been observed in other circuits and indeed in Maryland itself. We have had a judge on that court now
Senator O'MAHONEY. The question was addressed to me, if you will pardon me, Senator Butler.
Senator BUTLER. I am sorry.
Senator O'MAHONEY. In my belief the custom is not an ironclad custom. It is a desirable custom. But there can be no question about the constitutional power of the President to send a nomination to a circuit court from any State in the circuit.
The CHAIRMAN. Certainly that is true.
Senator O'MAHONEY. There is no doubt about that. In the present instance Mr. Sobeloff from Maryland has been nominated specifically for the purpose of succeeding a retired, sitting though retired judge