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from the same State. So that I don't believe that that raises any question of conflict with States' rights.
The CHAIRMAN. Could I ask you a question right there?
The CHAIRMAN. Didn't you recognize that custom on the Judiciary Committee when the nominee from Texas was sent up?
Senator O'MAHONEY. I don't recall that case nor whether I was on the Judiciary Committee at that time but I am told on the best authority that the custom was recognized in the case of the protest of Louisiana against being overlooked in the nomination but in this case, it seems to me that the Department of Justice can remove that particular objection without any trouble whatsoever. And in view of the fact that the very distinguished and able Judge Parker who was once nominated for the Supreme Court is coming to the end of his term and will presently be retiring I think the question of the distribution of these places among the States can be easily settled.
Senator DIRKSEN. Mr. Chairman, may I ask one more question at this point?
I am not aware that Senator Neely or Senator Laird any where in the proceeding has asserted the cause of West Virginia. They may have done so before the subcommittee.
Senator O'MAHONEY. No.
Senator DIRKSEN. It has never come to my attention. The claim of West Virginia would be moot unless they assert it in this scheme of rotation so if the claim of South Carolina is met by an additional appointment, it would seem to remove from the area of conflict all of the statements that have been made on that point.
Senator HENNINGS. Mr. Chairman, that brings us up to a subsidiary but to an even more far-reaching consideration. The attorney General has publicly requested a number of times certain additional judges, both district and circuit court of appeals. Here we have a very important circuit where a vacancy has existed since last February-is it February, Senator Butler?
Senator BUTLER. Yes.
Senator HENNINGS. It would seem to me
The CHAIRMAN. Does he need it if he hasn't made an appointment? There is some reason why he hasn't made an appointment. Does he need another judge on that court?
Senator HENNINGS. That raises another question. We have now before this committee-and I will ask that it be recommitted until such time as the subcommittee on improvements in the judicial machinery can convene because I think there are many things in that so-called omnibus bill upon which we will require the testimony of the Attorney General of the United States himself.
There are many things to be considered.
It so happened if I may digress with the Senator's indulgence just a moment and we all know how things are on this Judiciary Committee the difficulty of getting a quorum at the subcommittee meetings. I happen to serve on 8 or 9 of the subcommittees and other Members do as well, in addition to other committees of the Senate.
Senator WELKER. Mr. Chairman, may I be excused? I have to go to the Supreme Court this morning.
Senator HENNINGS. I am not satisfied, Mr. Chairman, at all with the bill as reported. We had a number of hearings. We heard only from the Judicial Conference. We heard from Judge Biggs. We heard from others. We had a very distinguished representation from Maryland, the bar of the city of Baltimore I believe, Senator Butler. Senator BUTLER. And the Maryland State Bar.
Senator HENNINGS. And the Maryland State Bar. But this would seem to me to rather point up again the question. I read in the New York Times the Attorney General has made a trip to Denver to discuss during the President's illness shortly after the President's unfortunate heart attack, he had gone out to discuss the need for Federal judges with him, that was on page 1 of the Times and apparently the Presi dent went over all that with the Attorney General very thoroughly and they decided that they needed certain judges, certain places and did not need judges other places. We have not as yet heard from the Attorney General and here is an example where again we don't seem to know if the Attorney General thinks that he has indicated that we need more judges, it would seem to me that this vacancy should not have been allowed to continue over this length of time.
It might have prevented this unfortunate controversy over the nomination of Judge Sobeloff.
Senator JOHNSTON. It is not really a vacancy. We have to have 3 courts, 3 judges on the court of appeals. Chief Judge Parker who is getting up pretty close to it.
Senator BUTLER. He is 71 right now.
Senator JOHNSTON. Then you have Judge Dobie who has handed in for retirement. He is still serving on the court. Then Judge Morris Soper. He is still serving on the court.
Senator BUTLER. He is very anxious to leave it and he has been serving for a year.
Senator JOHNSTON. He is anxious to get off, I will say that.
Senator DIRKSEN. I hope my distinguished friend from Missouri will not ask to recommit this bill. That would mean the end of the bill for this session.
Senator HENNINGS. This is not done for the purpose of delay, nor is it in my opinion anywise dilatory. My distinguished friend from Illinois knows that he himself after the bill was reported, which he had every right to do and did very properly in accordance with his own best judgment and understanding offered several amendments which the subcommittee has not considered.
I give my assurance to this committee that it is not my purpose to have any unseeming delay of this if this thing is considered to be important; but I do not feel like taking the sole responsibility because at each of the meetings we have had no more than two-Senator Welker has attended several and Senator O'Mahoney has attended several and Senator Watkins I believe has attended one or two.
Senator WATKINS. I did not attend them all.
Senator HENNINGS. I don't mean this critically of any of the members of this committee. But I am far from satisfied about the requirements and needs. And particularly I hear from Senators from some of these districts who say they don't need another judge.
Senator DIRKSEN. The reason for the observation I made is that I went to the trouble of having the senior district judge of Chicago
breakdown and send in all the data on the caseload.
The caseload in
that area is larger and heavier then in any place in the country.
It would occur to me if additional information is required of the Attorney General certain questions could be directed to him with respect to caseloads in certain areas and probably before next Monday that information could be available in letter form so it could be considered by the full committee.
Senator HENNINGS. We have had the experience with the distinguished Attorney General repeatedly that he does not answer mail. He does not come when you ask him to come. I think this matter is sufficiently important. There are a number of things that are constantly suggested by other Senators, not members of this committee about some of the things which I think are of great interest to us. For example, the number of cases filed, the number of cases dismissed and many other statistics and observations. With all respect to the gentlemen here this morning representing the Attorney General, on other instances and occasions the Attorney General has repudiated the testimony of his assistants. I happen to know that in one instance of another committee of which I happen to have been chairman.
Senator DIRKSEN. For the purpose of the record I should disclaim that. I am not an official representative of the Attorney General. (Discussion off the record.)
Senator O'MAHONEY. There was a motion made that the chair communicate with the Attorney General about the nomination of another person for this Circuit Court. I think that ought to be done. I think it ought to be done formally.
The CHAIRMAN. It has already been done.
Senator HENNINGS. When did the chairman write the Attorney General?
The CHAIRMAN. I talked to the officials from the Department 2 months ago.
Senator HENNINGS. You got no satisfaction and no reply.
The CHAIRMAN. I have not been told anything officially.
Senator O'MAHONEY. Let's send a written communication and find out why the delay.
The CHAIRMAN. All right, sir.
Senator DIRKSEN. All that the committee is voting on is the motion of the Senator?
Senator HENNINGS. To communicate with the Attorney General. The CHAIRMAN. We will do that.
Senator BUTLER. This is in connection with the Dobie vacancy, mainly.
Senator O'MAHONEY. Yes, sir.
Senator JOHNSTON. Mr. Chairman, I will withhold my consent to confirmation when the President of the United States without rhyme or reason violates this time-honored custom and this well-established precedent in the appointment of judges to preside over the destinies of those peoples who have among their number good and worthy eligibles for appointment.
The precident alone, I repeat, is a sufficient challenge to the propriety of this nomination. The question then resolves itself simply to this: Is the Judiciary Committee prepared to give its consent to the President's violation of an established precedent?
This committee was sufficiently bold and rightfully so in withholding its consent to the confirmation of Governor Allred in the heyday of the popularity of Mr. Roosevelt. The nomination never reached the Senate floor. Why should we then report out this nomination? Are there no available men in the State of South Carolina? West Virginia is next in line. I call that to the attention of the senior Senator from West Virginia. I dare say that when the next vacancy. occurs and the wheel of custom rotates to West Virginia, the distinguished Senator from that State on this committee can very well feel aggrieved should the judges and lawyers from that State be glossed over in favor of some pet from one of the other States in the circuit. I shall help him to prevent such a slight. I trust he will now see the merit of my objection to Mr. Sobeloff.
Recent press reports indicate that efforts are underway at the present time to secure the appointment of District Judge Albert V. Bryan of Alexandria for the vacancy which Judge Dobie's retirement will
After the present vacancy is filled and the rightful demand of South Carolina is honored, it will then become West Virginia's turn to have one of its lawyers appointed to the Fourth Circuit Court of Appeals.. West Virginia should be recognized when its turn comes. I shall be consistent and I shall oppose any nomination which fails to honor this precedent. The Senate functions under rules and precedents. We have faith in them. We seek to sustain and maintain them. Public honor, stability of government, and the orderly dispatch of the business, the public business require that we give full faith and credit to our precedents and customs.
Why should we exempt the President? His is only part of the responsibility. Ours is the balance of it.
For my own part, I shall not depart from this principle. This is not a popularity contest. A principle is involved. The sharing of a great responsibility is a present challenge to every member of this committee. I am hopeful that for this reason the Judiciary Committee will seriously reflect upon the propriety of changing the precedent. While such a change adversely affects the sovereign rights of the State and the good people I have the honor to represent in the immediate nomination before the committee, tomorrow or the next day, or in the days to come, it may adversely affect the prerogatives or rights of the citizens of every State who has an honored Senator serving on the present Judiciary Committee.
You will not have to appeal to me as I am now appealing to you to uphold this precedent if the President chooses to violate it so far as your State is concerned. You may rest assured that no amount of argument as to the worthiness or fitness of a candidate whose nomination is detrimental to your State need be made to me.
I shall vote with pleasure with you to sustain the precedent and to give your State the representation that is its due pursuant to the custom and precedent of appointment for the vacancies that are to occur.
I am making that statement because I want you all to remember that too and just come and let me know when you are in the same condition I am in today.
Time and time again, I have heard with interest and great sympathy, the senior Senator from North Dakota-I am sorry he is not here this
morning-bemoan the fact that his State was being ignored in appointments for judges and in the executive branch of the Government.
I have heard him rail against the slights of his constituency. We who sympathized with the merit and justice of his complaints were powerless to help him. He knows, however, that when it becomes North Dakota's turn to have a judge on the Eighth Circuit Court of Appeals and North Dakota is bypassed, I shall not fail him. I shall hear his plea. I then will do my part to see that the custom which I now plead to be maintained will so far as I am able be maintained for him.
He will not have to argue or labor the point with me. Suffice it for him to say, "The vacancy on the Eighth Circuit Court of Appeals belongs now to North Dakota. It is my State's turn to have this appointment."
Senator HENNINGS. May I interrupt you? There are two judges on the Eighth Circuit Court of Appeals from the State of Nebraska. You would not follow that precedent to give Nebraska two more.
Senator JOHNSTON. No, sir. I shall vote with the Senator from North Dakota to sustain this same custom should the President seek to evade or violate it.
I don't know how long you will run here. I have just gotten through 4 pages and I have 16 pages in all.
Senator BUTLER. Mr. Chairman, would it be possible to meet at some time later in this week?
The CHAIRMAN. I will try to get a quorum later this week. I would like to hear Senator Johnston further.
(Whereupon at 12 noon the committee proceeded to further business.)