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Senator BUTLER. I have it as of March 31, 1956, the pending caseload: The Maryland caseload, 351 civil, 65 criminal. In the eastern district of South Carolina, 171 civil, 109 criminal. And in the western district, 52 civil and 15 criminal.
Senator JOHNSTON. That is the district.
The CHAIRMAN. Those are district court?
Senator JOHNSTON. Those are not cases on appeal here. They may never reach this court of appeals.
Senator BUTLER. They are appeals from this court to the district. Senator JOHNSTON. I know, but very few cases are appealed to the district.
Senator BUTLER. I say they are cases on appeal from the district court to this court.
Senator JOHNSTON. Therefore, populationwise and from the standpoint of the volume of business, South Carolina merits an appointment to the present vacancy. Add to these reasons the fact that South Carolina has had no representative on the court since the appointment made in 1913, and you can readily see how this neglect cuts us to the quick.
The Senator from Maryland made another observation which may leave an erroneous conclusion. He said something about appeals from the District of Columbia adding to the burden of the caseload. in Maryland. That may account for a very few tax cases in the district court of Maryland, but that has not kept progress with the increase of cases originating in South Carolina.
Then, too, the great mass of cases in the district go to its own circuit court of appeals which consists of 15 judges, as compared to the 3 judges from the 5 States in the fourth circuit.
I submit that these interjections are interesting but not helpful in our effort to settle a principle of State representation.
I now come to my third objection. I want to incorporate here by reference and to affirm in person the objections made by the distinguished Senator from the State of North Carolina, Mr. Ervin.
And here I would like to state, since the Member from West Virginia has come in, the 2 Senators from Virginia, the 2 Senators from South Carolina, and you will also find that in North Carolina the 2 Senators, that is 6, and then the Senator from West Virginia, Mr. Neely, is incapacitated at the present time--I have not discussed the matter since this has arisen concerning the appointments-but if that be so, then it would be all the States except Maryland are taking the same position that I am taking.
The great majority of the people of Virginia, North Carolina, and South Carolina are opposed to the nomination of Mr. Sobeloff because they lack respect for his philosophy; they lack confidence in any man who espouses such a philosophy; they lack respect for the courts which, as he has illustrated so convincingly, are willing to usurp the functions of the State courts, overrule established decisions and precedents, and usurp the constitutional power of the States and Congress to legislate within their respective spheres.
I have here something which I think fits right into this in regard to this matter, a statement from Dean Clarence E. Manion, and this is
warning us in regard to the way the court is drifting at the present time.
This is something to give every one of us a turn. It is something to be thinking about, as I see it:
For instance, consider the current concern over the subject of States rights. For more than 25 years, rabid advocates of international socialism have sustained a skillful propaganda campaign to discredit and destroy popular respect for our constitutional doctrine of States rights.
This vital principle of our Federal Republic is spelled out clearly in the Constitution's Bill of Rights. Nevertheless, long ago, the international Socialists marked the doctrine of States rights for destruction, because, literally enforced, this unique freedom formula is a complete barricade against the subjugation of our country by socialism, communism, and/or world government.
Ceaselessly and sedulously, therefore, the American people were fooled into the belief that the States rights doctrine was a hampering hangover from our 18th century pastoral society. Over and over we were assured that the reason for States rights had disappeared with the advent of mass production and rapid transportation.
Printed copies of the Bill of Rights were distributed which omitted the 9th and 10th amendments altogether.
Senator JENNER. That is right.
With these sedatives of reassurance, the American people were enabled to digest the startling discovery that the President could destroy any reserved State right by the simple expedient of a secret international agreement.
Meantime, with a flood of laws and Executive orders, Congress and the Presidents proceeded to wash the reserved rights of the States down the drain of constitutional law, and to accommodate the forces of international socialism by concentrating more and more power in the bulging bureaucracy at Washington. By and large, the American people were induced to believe that this new centralism was just as good as it was inevitable.
It was a mere coincidence, of course, that during this centralizing transformation of our constitutional system, we officially recognized the then collapsing Soviet Government of Russia (1933) and later saved that gangster government from complete destruction by our timely intervention in the most devastating war of all history.
In the course of this centralizing, States rights-destroying program, we doled out our record-high American tax collections as outright gifts to all the Socialist governments on earth. In the process of this prodigality, we ran our national debt up to the point where it now exceeds the value of all the tangible property in the country.
I hope, if nothing else, that this hearing will really let the people at least stop, look, and listen, and see in what direction we are drifting. It is a fact, of course, that the language of the Constitution was expressly designed to protect the decentralized Federal structure of our Government against this kind of wanton destruction.
Specifically, the 10th amendment was set up as a precautionary legal safeguard for just such periods of popular apathy and misunderstanding as we ourselves have witnessed in our own lifetime. But, standing alone, without intelligent patriotic assistance, the language of the Constitution cannot preserve the libertyprotecting Federal system that it designed for the American people.
The Constitution, therefore, contemplates that its clear language will be courageously supported and sympathetically enforced by and in the courts of our country. Regardless of the President, regardless of Congress and regardless even of a politically manipulated and temporarily deluded majority of the voters, the Constitution continues to be the supreme law of the land, which, until it is appropriately amended, it is the duty of the courts to proclaim and defend.
It is to be expected that, being human, Federal administrators and legislators will always strain and stretch their constitutional harness in an effort to expand their authority. In contrast, the judicial branch of our Government is a passive agency, with no natural incentive for the expansion of its power.
To resist the time-honored trend of the administrators and legislators toward tyranny, the people must thus rely upon political reprisals at the polls, while they
enforce the conservation of constitutional limitations by lawsuits in the courts. By and large, the courts have lived up to this important mission of judicial conservation.
Deliberately removed from the vicissitudes of politics, and with a single eye to the preservation of the Constitution, the Supreme Court kept a restraining hand upon the excesses of legislation and administration with only temporary lapses here and there throughout the whole course of our history. For instance, at intervals, between 1860 and 1938 the Supreme Court declared that more than 60 laws of Cogress violated the Constitution and were therefore unenforceable. Since 1937, however, the Supreme Court has faced in the opposite direction. It no longer checks the excesses of Federal legislation and Federal administration in the interest of States rights. On the contrary, its present day constructions almost invariably add velocity to the centralizing forces that have all but destroyed the constitutionally reserved domain of State government.
This revolutionary about-face in the attitude of the Supreme Court toward our States rights Federal system might have been expected to stir a storm of protest from lawyers, law teachers and political scientists. As a matter of fact, however, it did nothing of the kind.
In general, these people, along with all elements of our population, had been so thoroughly conditioned by the propaganda devices of the international Socialists that, instead of criticizing, they commended the refusal of the Court to enforce the 10th amendment.
In one of my first broadcasts over this microphone, just 17 months ago, I pointed out that the supreme architect of centralized power in this country was none other than the Supreme Court of the United States Here is exactly what I said:
"By its decisions during the last 15 years, the Supreme Court, for practical purposes, has removed every constitutional restraint upon congressional and Federal Executive power. At the same time, the court has rebuffed and frustrated every important attempt by the individual States to assert regulatory powers over subjects reserved to them under the 10th article of the Bill of Rights. Constitutionally reserved State powers crystallized by specific judicial constructions for more than 50 years have been swept away.
"The Justices are not content to validate new extensions of congressional regulation into purely local activities. The Court goes further by first disregarding the restraints that Congress has written into its own laws and then extending the scope of that legislation by judicial decree." Criticism of that broadcast ranged from the charge of "diehard reactionary" to "inexcusable disedification."
The reason I read this from Dean Clarence E. Manion's broadcast No. 87 of May 27 of this year, is because it is so fitting at this time to show how we are traveling and why we ought to study each person who comes before us, especially on any court which stands in any kind of appeal, before we confirm them.
For it is my firm opinion that we must stop this trend or else the States will be utterly destroyed as far as their powers are concerned. Going back to where I left off a few moments ago, now, Mr. Chairman, I will deal with my first objection enumerated above because it involves certain charges the committee and the subcommittee cannot well afford to bypass.
I shall go into a few phases of these charges in some detail. I shall relate only brief parts of them because I feel it is the duty and responsibility of the subcommittee to explore them and whatever else the records in these cases in which Mr. Sobeloff participated may demonstrate.
I have seen parts of the transcript of the testimony. I shall refer only briefly to them, but the present testimony taken on the nomination of Mr. Sobeloff bears out to a certain extent the truth of what I am about to say.
The charges involve the same kind of professional conduct, if press reports were true, as were made recently by the Attorney General in a suit in New York against the law firm of Sullivan & Cromwell of
New York City. It involved the alleged violation of certain canons of ethics.
I would like to read into the record at this time from the New York Post and Times of September 21, this article:
JUSTICE CHARGES NEW YORK LAW FIRM BROKE INTEGRITY RULES IN OIL DEAL
The Department of Justice has accused Sullivan & Cromwell, New York law firm, of abusing three rules of integrity in an alleged conflict of interest case. The accusation involved a dispute in which the Government is trying to recover $100 million in alleged overcharges for crude oil sold under the old Marshall aid plan to the Economic Cooperation Administration.
Sullivan & Cromwell represented Standard Oil Company of New Jersey and a subsidiary, Esso Export Corp. The Justice Department is trying to force them to withdraw from the case, because Garfield Horn, a partner in the firm, was once an attorney in the ECA General Counsel's office in New York.
Documents on file in the Federal Court of the Southern New York District reveal the Justice Department had obtained papers which proved, it claims, that Horn either reviewed or helped to draft the pricing policies at issue in the oil claims case.
The Government has been preparing the case for trial for 3 years. An affidavit filed by Horn in New York courts said that he first joined Sullivan & Cromwell in the middle 1940's. He left the firm to take the ECA job and rejoined it several years ago.
A Justice Department affidavit pointed out that Sullivan & Cromwell represented Standard during Horn's first period of employment with the firm. A motion filed by Assistant Attorney General Stanley M. Barnes, Antitrust Chief, said that "Horn's analogous position runs afoul of Canons 6, 37, and 36 of the American Bar Association, which in essence forbids attorneys to, first, accept a fee in matters adversely affecting the interest of a one-time client; second, use confidences reposed by a former client to his own advantage; or, third, accept any employment in connection with a matter which he investigated while in Government employ."
Barnes said that Horn, while an ECA employee, received Government confidences and gained a peculiar degree of insight into the case through his access to internal documents.
Sullivan & Cromwell now is headed by Arthur H. Dean, who, incidentally, was counsel for Adolphe H. Wenzell, the Former Budget Bureau consultant involved in the Dixon-Yates controversy.
The question of a New York firm's participation in the claim suit first arose last March when the Justice Department began a study of Horn's ECA duties. In June, Barnes called Dean in to a special meeting and asked him to withdraw his firm as counsel. Dean concluded, however, that there was no basis for complying with the request.
The firm subsequently launched a court fight to establish its qualifications in the case. These facts are set out in the New York court record. Sullivan & Cromwell maintains that Horn had nothing to do with the subject matter of the claims case while with ECA.
Furthermore, Dean charged that the Government raised the conflict of interest question at a time when it was totally impractical for Sullivan & Cromwell voluntarily to withdraw. To do so, Dean said, would inflict painful embarrassment upon his firm and irredeemable prejudice upon the defendant.
The Government's answer to this argument was filed a few days ago. Oral arguments are scheduled for Tuesday.
Dean charged that in numerous conferences to which he was called with Barnes, Robert A. Bix, and Edward H. Foote, he was refused the right to see the Government's alleged evidence against Horn. He said Bix, Barnes' legal assistant, and Foote, Barnes' first assistant, claimed the documents were classified.
Secretary of State, John Foster Dulles, and his brother, Allen W. Dulles, head of the Central Intelligence Agency, formerly were associated with the firm.
The reason I have read that is because it fits right in here with these charges. The charges involve the same kind of professional conduct, if press reports were true, as were made recently by the Attorney General in a suit in New York against the law firm of
Sullivan & Cromwell of New York City. It involved the alleged violation of certain canons of ethics.
They have to do with an attorney representing conflicting interests in the same transaction, or in cases growing out of the same transaction, or in a case where by reason of one type of representation superior knowledge is gained and thereafter used for conflicting interests.
I have no doubt, and I think Mr. Sobeloff is capable of convincing some of us, of his mental agility, his dexterity of though and the ambulatory character of his nature. I hesitate to suggest that he has the ability to convince anyone that he can in propriety represent a contesting defendant in the same case against the receiver and then prosecute for the receiver in that case in subsequent actions.
The CHAIRMAN. Now, repeat that. What was it he did?
Senator JOHNSTON. Let me go back-convince anyone that he can in propriety represent a contesting defendant in the same case against the receiver and then prosecute for the receiver in that case in subsequent actions.
Senator MCCLELLAN. How does that relate to Sobeloff?
Senator WATKINS. That did not happen, the record shows.
Senator JOHNSTON. I think you will find if you will search the record, you will see that he did.
Senator BUTLER. In what respect did he do it?
Senator JOHNSTON. I will bring it out here in a minute, if you will listen to it. I go into it all, and show you just what he did. Senator MCCLELLAN Go ahead.
Senator JOHNSTON. Such is the case, and I cannot find him free of the charge of having been on both sides of the same issues in the
Last fall, Mr. Charles Shankroff submitted to me what I considered very serious charges reflecting upon the professional conduct of the Solicitor General, Mr. Sobeloff. I never saw Mr. Shankroff until after he had written me several letters.
I looked into the charges and I believe that there was sufficient substance to them to require the subcommittee charged with the responsibility of determining Mr. Sobeloff's fitness to go into a detailed analysis and investigation of the bases of those charges.
At the outset, I asked the subcommittee to see the records. I do not understand that the committee has seen the official records to this very moment. Is that so?
Senator WATKINS. I do not think we have seen the records. They go back 120 years, and there was not the slightest evidence to show conflict of interest so far as I could
Senator JOHNSTON. The newspaper accounts show the record. They are not here.
The CHAIRMAN. Is Mr. Shankroff here?
Senator JOHNSTON. I will hand the chairman, which I close with, my initial suggestion, and which will contain other papers I think this subcommittee should study.
The CHAIRMAN. Senator Johnston, is Mr. Shankroff here?
Senator JOHNSTON. Yes, he is.
The CHAIRMAN. Go ahead.
Senator JOHNSTON. We have the power to subpena, and we should use it.