NOMINATION OF SIMON E. SOBELOFF

MONDAY, JUNE 11, 1956

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D. C.

The committee met, pursuant to call, at 11 a. m., in room 424, Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, Johnston, McClellan, Langer, Jenner, Watkins, Dirksen, and Butler.

Also present: Joseph A. Davis, chief clerk.

The CHAIRMAN. We will now take up the Sobeloff matter.
Proceed, Senator Johnston.

Senator JOHNSTON. Mr. Chairman and members of the committee; I agree with the observations made by several members of the committee on June 4 that there is little justification for the Attorney General to have withheld sending up the nomination for the other vacancy now existing on the Fourth Circuit Court of Appeals to fill that created by the announced retirement on February 1, 1956, of Judge Dobie.

Sending up a nomination now, following the nomination of Mr. Sobeloff, even from South Carolina, does not satisfy the rightful requirements of the custom or precedent which I say we must maintain for two reasons: First, custom or precedent would still be violated; and secondly, the immediate nomination carries with it the seniority which will enable the immediate nominee to become chief judge on Judge Parker's anticipated retirement.

This fact makes this present appointment of greater than ordinary value.

If South Carolina loses its rightful turn, then it loses its possibility of having one of its citizens become chief judge.

The CHAIRMAN. Let me ask you a question. The statement was made at the last meeting that most of the cases that the State of Maryland furnished more cases than South Carolina or any other State.

Senator JOHNSTON. I go into that this morning.

Senator BUTLER. May I read into the record at this point the figures in support of that?

Senator JOHNSTON. I have it here in my statement a little bit.. Senator BUTLER. Do you have it? I thought it ought to be in the record.

Senator JOHNSTON. Yes, I have got it here, and I will want to read them.

Then, too, what becomes of the right of West Virginia, lost under such circumstances?

To send a nomination from South Carolina while the present one is pending is a distinct violation of the precedent, so far as West Virginia is concerned. The demands of ordinary, everyday justice require that the nomination of Mr. Sobeloff be withdrawn by the Department or voted down by the Judiciary Committee.

Only by taking one of these courses can complete justice be accomplished and satisfaction be realized.

While I consider that the volume of business from a particular State in a circuit has little bearing on the proposition that each State in a circuit is entitled to have representation in its turn upon the court, the question was asked the other day concerning the comparative amount of business from South Carolina and Maryland.

Whether the volume is large or small, the precedent and custom should prevail. Let me cite the relative populations. The census of 1950 shows Maryland with a population of 2,343,001 and South Carolina with a population of 2,117,027.

Thus, according to population, South Carolina and Maryland are about equal. Maryland has had a representative on the court for the past 25 years. For the past 31 years South Carolina, with an equal population, has had no appointment since 1913.

I consider the number of people affected by such a nomination of greater dignity than the amount of litigation involved.

Let us look at the judges who have served since the court was created. Here is the list of judges:

From the foregoing, it is clear that it is South Carolina's turn to be recognized. The foregoing list also shows that each State in the circuit has had two judges except Maryland, which has had three.

If Mr. Sobeloff's nomination is reported out of this committee and confirmed, Maryland will have had four judges-Bond, Rose, Soper, and now Sobeloff-since South Carolina's last appointment in Judge Woods in 1913.

Is this fair to the people of South Carolina? Is this the democratic way of doing business? Is this a recognition of a principle of States rights?

Does not this appointment do gross violence to our representative form of government? Does not this appointment negate every principle in our representative democracy?

Senator BUTLER. Will the Senator yield at that point?
Senator JOHNSTON. Who can gainsay that it does not?

Senator BUTLER. I think if the Senator will go back just a few more years, he will find that South Carolina has had two judges, as has every other State in the circuit.

Senator JOHNSTON. As you will notice

Senator BUTLER. You went back 50 years. I think if you will go back another couple of years, you will find in South CarolinaSenator JOHNSTON. Yes, 1891.

Senator BUTLER. Yes, 1891 and 1892.

Senator JOHNSTON. Yes.

Senator BUTLER. They have had two judges, as has every other State in the circuit.

Senator JOHNSTON. If you have that, I will be glad to put everything in the record on that.

Senator BUTLER. I imagine this colloquy is going in the record, and I think those figures are accurate, and I would like to be a part of this record.

Senator JOHNSTON. The Senator from Maryland suggested on Monday, June 4

The CHAIRMAN. Withhold a minute, please, sir.

I have a letter here, Senator, that I am requested to place in the record, in connection with this nomination. Do you want me to read it?

DEAR SENATOR: The purpose of this letter is to express my opinion regarding the confirmation of Mr. Simon E. Sobeloff as judge of the Fourth Circuit Court of Appeals.

I personally have no complaint against the qualifications or character of Mr. Sobeloff, since I have not yet had an opportunity to thoroughly study his qualifications and fitness for the position. However, it is my understanding that the custom has been to rotate these appointments among the States included in a circuit.

It would appear to me that some consideration should be given the right of South Carolina to be represented at this time, which, in turn, would make West Virginia next in line for consideration for the judgeship vacancy existing, for which no nomination has yet been submitted.

I sincerely hope the Senate Judiciary Committee will take cognizance of the past policy for making such appointments. To deny South Carolina the opportunity of being represented at this time would then set a precedent for such actions which could lead to West Virginia's not being given consideration for the filling of the other vacancy which, by past custom, my State would be eligible to fill.

With kind regards, I am
Most sincerely yours,

WILLIAM R. LAIRD, III.

The committee instructed me to write the Attorney General about sending up a nomination for the other vacancy. I have a letter from the Attorney General which is a straddle.

I would like to place my letter in the record :

Hon. HERBERT BROWNELL, Jr.,

The Attorney General,

Washington, D. C.

JUNE 4, 1956.

DEAR MR. ATTORNEY GENERAL: At a meeting today of the Committee on the Judiciary, the chairman was authorized and directed by action of the committee to inquire of the Attorney General of the United States as to why no nomination has been submitted to the Senate to fill the vacancy existing in the United Sates Circuit Court, Fourth Circuit, occasioned by the retirement of the Honorable Armistead M. Dobie on February 1, 1956, and to urge that a nomination to fill this vacancy be submitted to the Senate.

I will appreciate your reply.

With kindest regards, I am

Sincerely yours,

JAMES O. EASTLAND, Chairman.

His reply, dated June 8, 1956:

DEAR SENATOR EASTLAND: Thank you for your letter of June 4, inquiring for the Committee on the Judiciary of the Senate as to the filling of the vacancy occasioned by the retirement of Judge Armistead M. Dobies last February. I am glad to note the committee's interest and of course am aware of the need for supplying the Fourth Circuit Court of Appeals with a full complement of judges. The matter is under active consideraton and you have my assurance that I will make a recommendation to the President as promptly as possible. May I, in the meantime, respectfully recall that in April 1955, 10 months before the retirement of Judge Dobie, his colleague, Judge Morris A. Soper, applied for retirement, and on July 15 of that year the President submitted the name of Solicitor General Simon E. Sobeloff as his successor. It was resubmitted at the present session in January, before Judge Dobie retired. Anything that the committee does to expedite action on this nomination, which is still pending before it, would considerably alleviate the pressure on the court. With best personal regards,

Sincerely yours,

HERBERT BROWNELL, Jr., Attorney General.

I will place that in the record.

Now, proceed.

Senator JOHNSTON. Thank you.

Senator BUTLER. May I make one brief observation in answer to the contention of the Senator from South Carolina, and also to the contention of the Senator from West Virginia, Mr. Laird.

As far as I know, there is no such precedent; and if there is, it has been more honored in its breach than in its observance in the circuits throughout the United States.

Senator JOHNSTON. The Senator from Maryland suggested on Monday, June 4, that possibly the appointment of Mr. Sobeloff was prompted by reason of the greater volume of business arising from the State of Maryland. I consider the suggestion irrelevant.

I further consider that any such reason, if it existed, does gross violence to a good custom and a valued precedent. If the appointment. were to be made on any consideration of the volume of business, then again this factor favors an appointment from South Carolina.

The statistics prove my point. In the fiscal year of 1954, there were 27 cases from the State of Maryland before the circuit court of appeals. There were 32 from South Carolina.

For the last 5 years the Director of the Administrative Office for the Federal Courts reports as follows:

Therefore, populationwise and from the standpoint of the volume

of business

Senator BUTLER. How about so far this year, Senator?

Senator JOHNSTON. What is that?

Senator BUTLER. How about so far this year, up to March 31?

Senator JOHNSTON. I do not have the report from them. I do not.

know that he made a report this year.