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that when one Southern State turned it down, mind you, and the Army put the pressure on and the carpetbaggers put the pressure on and got control of the legislature, then on the next go-round they ratified it, that that was legal; the first time didn't count. But when Ohio ratified it on the first go-round and then took another look and wasn't decided and then unratified it, the Supreme Court says, "Oh, no, the first time counts with you." That is just the way the Court, backed if you please by President Lincoln to do a job, ruled on how to get this amendment into the Constitution. There are a good many other details. I want to finish this by 12 o'clock, but I could talk about this for quite a while. I wish you would read the article coming out next week in David Lawrence's U. S. News & World Report magazine on how the 14th amendment got into the Constitution in the first place.
I made a speech on the floor of the Senate, taking an hour or more in which I outlined that never on the floor of Congress or anywhere else, ratifying the amendment, did anybody imply that it applied to schools. Congress approved and submitted to the people the 14th amendment and proceeded right then to provide segregated schools for the District of Columbia and there are plenty of people now in the District who haven't had the chance to move out who wish that wasn't the rule. There are about 65 percent colored now in Washington and the number will go up to 80 percent. Whereas the standing of District schools was one of the best in the Nation-I can remember the time when the salary of a schoolteacher in the District was twice what it was in Virginia. Now they say they are going right down to the bottom of the whole Nation. It is a mess and you can't get away from it. We don't want that kind of mess in Virginia.
Senator DIRKSEN. Let me make one comment before we get away too far from the Civil War. We may disagree on terms, but it was a civil war.
Senator ROBERTSON. There were a lot of hotheads. If they had listened to us in 1777, we would have abolished slavery. What stopped us? Massachusetts said if we insisted on putting in an amendment in the Constitution against slavery, they would have walked out. We were for abolishing slavery.
Senator DIRKSEN. You will admit the extraordinary circumstances that developed immediately after the War Between the States was over and that Abraham Lincoln was being denounced by his own party leaders right here in the very Senate where you and I sit, because of the emotionalism that attended this thing at the time. Who shall say now how to refinish the history of that time. In the light of hindsight, we admit he was absolutely correct.
Senator ROBERTSON. Abraham Lincoln was a grand man. He wanted pay the South for the slaves. We had some hotheaded fellows that believed, I believe, with old Colonel Toombs of Georgia, when he said, "Let's secede, we can lick the Yankees with cornstalks; let's secede." General Sherman marched through Georgia and overran them and when he was running for Congress, he said, "Colonel, didn't you tell us you could lick the Yankees with cornstalks?" The Colonel said, "Yes, my friend, but the damn Yankees wouldn't fight us with cornstalks."
Lincoln never did abolish slavery, only in the States which had seceded. Lincoln wanted to heal the wounds and bring the South back
into the Union and rehabilitate the South. He knew we had suffered. He loved the Union. He wanted to preserve the Union. But he knew that the Union, to reach its manifest destiny, had to have the South along with the rest of it. I think it is a terrible thing that the Union Club in Chicago, when news reached it that Lincoln had been assassinated, drank a toast to his assassinator.
Senator WATKINS. I would like to get back, if the Senator will to the question before us. I gather from what you said that the people of Virginia will not be satisfied with any judge that does not sympathize with that point of view.
Senator ROBERTSON. You are just as hundred percent wrong as you can be.
Senator WATKINS. That is the impression I get from what you have been saying.
Senator ROBERTSON. I haven't finished. I have just started to point out that we are not satisfied with a man known to be prejudiced against us. We want an unprejudiced man if it can be had, somebody that can be fair on these hearings and who, by his previous conduct, has not indicated his incapacity to be fair if he is so imbued with the justice of what he has already done that he couldn't think in other terms.
Now you have certainly misunderstood me if you think I meant the people of Virginia wouldn't agree I am trying to point out as I get to it that this man has made very definite commitments in this matter, and while he testified before this committeee, "Sure, I can be fair and I am going to be fair," it is a physical and mental impossibility for him to be impartial in these. He is committed as deeply as a man can be committed and he hasn't changed his position on it. That is why we are going to do all we can to prevent his confirmation. We may run over-you wouldn't do it even to the Virgin Islands. Eighty or ninety percent of the people are colored there and you wouldn't send a man out there that had spent all his public life endorsing something that the colored people objected to. You wouldn't do that even to the Virgin Islands.
I knew of one New Dealer who was sent out there earlier. He was just as left-wing as he could possibly be. He was sent out there as a judge to the Virgin Islands. That is a thing that-well, I can read you this little opening of an editorial from the Richmond News Leader, June 19, which says:
Back in 1864, when Lincoln was looking for a successor to Chief Justice Taney, he delivered himself of an aphorism on the matter of judicial appointments that has guided Presidents ever since. What he wanted, confessed Mr. Lincoln frankly, was a judge "who will sustain what has been done in regard to emancipation and the legal tenders." Then he commented: "We cannot ask a man what he will answer us, we should despise him for it. opinions are known."
do, and if we should, and he should Therefore, we must take a man whose
A few years later, in 1870, Grant thought so highly of this advice that when word leaked of the approaching decision in Hepburn v. Griswold, declaring the Legal Tender Act of 1862 unconstitutional, Grant promptly nominated two associate justices whose opinions on legal tender were well known indeed: William Strong, as a member of the supreme court of Pennsylvania, already had upheld the constitutionality of the act in a case there; Joseph B. Bradley of New York, an ardent unionist and railroad lawyer, also could be expected to vote the right way. Sure enough they did, and 15 months later in Knox v. Lee, the decision in Hepburn v. Griswold was unceremoniously reversed, 5 to 4.
Well, that is what I say. There is Lincoln's statement. We don't like to ask a man how he is going to vote before we put him on this. Lincoln said that if he should answer us, we would despise him.
And Grant did the same thing to get reversed a decision he didn't like on legal tenders. He picked one judge from Pennsylvania that had rendered a strong opinion in behalf of the validity of the Legal Tender Act of 1862 when another New York lawyer who was known to be strong for Grant and the administration, the Republican Party, and for legal tenders he put those two men on that and reversed the decision. It was a recent decision-reversed it with the help of those 2 men by 1 majority, and that is just what is being done to us, and let's make no bones about it.
You are picking a man whose views are well known, so well known that it is going to be a particular advantage wherever those votes may be, and that is what we object to, and I will go ahead and point out just where they are well known, and why we object so much.
Senator DIRKSEN. You are going to bring your recital up to date, aren't you?
Senator ROBERTSON. Yes.
Senator DIRKSEN. You were speaking about the Grant administration and Lincoln's administration on the Dred Scott decision.
Senator ROBERTSON. I am going to bring that up if this gets to the floor. I have got a little 35-page dissertation on what the Court has done from time to time. Yes. We got a Court that will uphold business and kick labor in the teeth; yes, sir; for a number of years, and then it got to the other way and President Roosevelt came in and tried to pack the Court, and we in Congress stopped it, and then he put men of known views on and they upheld the wage-and-hour law.
You were in Congress when I said that was a covert way to repeal the interstate commerce provision of the Constitution. You remember that. You remember what a panic Mary Norton got into and asked it be recommitted.
You remember how Cohn and Tommy the Cork then rewrote it and buried that so deep none of us found it until it got to the Supreme Court. Then they pulled it out.
This is the decision of Congress. It influences-if this much would be a part of a building that was made in New York, it influenced all the rest of it, and it was in interstate commerce.
If you lay a plank down in the little country sawmill, that was in interstate commerce Cut a shingle and erect it over this building, the building was in interstate commerce. They repealed everything in it. In the Constitution the distinction is between intrastate and interstate.
This isn't the first court that has engaged in policymaking powers. I am just saying we are fed up with it, and here is the first time we have an opportunity to stop a man who is dedicated to that theory that the Court functions-certainly if there isn't a specific act of Congress to stop him-to move in and legislate, and that is what I am going to show you he believes in, and that is the reason we don't believe in him.
We can't change the Supreme Court if we are going to point out that we are going to do just like the NAACP did for 86 years. They contested and contested and finally they got it reversed. I may not live long enough to see this decision reversed, but it doesn't mean
that I am not going to try, and I am not going to sit by and see somebody destined to be the presiding chief judge of the fourth circuit put on there that I know will block every effort we make to get a fair hearing on the implementation of this unusual issue, and now, Mr. Chairman
Senator WATKINS. Then you would oppose anyone that didn't have views well known in sympathy with your position; is that right?
Senator ROBERTSON. No, I wouldn't. I wouldn't advocate anybody known to be prejudiced for my position. I oppose somebody who is prejudiced against my position. I advocate men of judicial testimony who will consider the law and the evidence and base their decisions on that and not on some preconceived Socialist theories. Senator WATKINS. I take it for granted
Senator ROBERTSON. I want to see confidence in our judiciary restored, and I am telling you there is a little to be done in that behalf, and we certainly don't restore it-I can understand why a President will feel an issue so great that it is just necessary for him to go out and put on the Court a man whose views he knows are so well firm, he doesn't have to ask him are you going to do this or the other. Just put him on that, give him a chance to vote, and it comes out like he wants it.
He feels it is in the best interests of the country. I am going to point out, if I am called upon-the committee won't call on me to do it. You don't make me make this long speech on the history of the Court and exercise of policymaking power, but I am going to point out how we are losing the public confidence in the Court when the Court persists in being legislative instead of judicial.
Senator DIRKSEN. I am sure it will be a scholarly speech, and I will be delighted to hear it.
Senator WATKINS. I will join my colleagues in that statement. Senator ROBERTSON. I would rather you keep this nomination where it is, and let me send you just a copy of it privately.
Senator WATKINS. Share it with the world. Don't keep it private. Senator ROBERTSON. Mr. Chairman, to return to some scattered observations, I wish to remind you it should not be forgotten that during all the years when the Supreme Court was saying separate-but-equal schools fully met the requirements of the 14th amendment, the NAACP continued to bring new cases and to seek to have those rulings, which also were the supreme law of the land at the time, overturned. Why, then, Mr. Chairman, should we, who hold a different view, accept the 1954 decision as final?
It is generally agreed that probably a majority of the cases which come before the fourth judicial circuit during the next few years, and perhaps for many years to come, will involve questions touching on racial segregation. Shall we be compelled to try those cases before a judge who has proclaimed his personal views on the subject from lecture platforms throughout the Nation, as well as before the Supreme Court itself? Or, are the people of Virginia and North and South Carolina not entitled to hearings before judges whose views are firmly fixed?
No, I don't ask that they be prejudiced, Senator Watkins, in our favor but somebody we feel
Senator WATKINS. Don't you assume because they have taken a position contrary to your position that they are prejudiced? That is what I get as the logical deduction from what you said.
Senator ROBERTSON. If a man in his official action and his lecture actions says 100 percent that the Constitution means that you cannot legally operate segregated schools, I know that he will not view in an unprejudiced and fair manner any expression of legal sentiment to the contrary.
Senator WATKINS. Let's suppose a hypothetical case. Suppose we had the present Supreme Court before this committee for confirmation. Would you oppose all of those, I take it, because they would be prejudiced?
Senator ROBERTSON. I may make 1 or 2 exceptions, but they would not fare too well with me.
Senator WATKINS. I put it that way to point up what I am trying to make clear here. It seems to me that you are taking the position that if they don't sympathize with your feelings they are bound to be prejudiced.
If they have shown by any act in the past they have that point of view, they are prejudiced.
Senator ROBERTSON. The shearest objection I have to the present Court and Mr. Sobeloff is the belief in the policymaking powers of the Court. I don't believe that. I think they should be governed by law. I don't think they should go out as psychologists and sociologists and people of that kind to find grounds on which to overturn established law of 86 years and to move into a field, a field which is clearly under the 14th amendment under the exclusive jurisdication of Congress and the Congress never saw fit to act.
Chairman EASTLAND (presiding). Wait a minute now. You ought to add another figure. You said psychologists, sociologists. You should have added Communists and pro-communists.
Senator ROBERTSON. Well, I will let the chairman supplement my statement. I didn't want the Senator from Utah and the Senator from Illinois to think I was prejudiced, so I was being sort of restrained. Senator WATKINS. Well, we appreciate the restraint under which you are speaking.
Senator ROBERTSON. I know, Mr. Chairman, that Mr. Sobeloff has assured this committee that he can and will try these cases fairly. My confidence in him would be greater, however, if he had expressed a willingness to excuse himself in cases turning on the decision which he helped to obtain from the Supreme Court. But, of course, I realize that such withdrawal would leave him out of so many cases that his value to the circuit would be quite limited.
My confidence and that of the people of Virginia-in Mr. Sobeloff's ability to handle segregation cases in an understanding manner also is diminished by the proposal he made to the Supreme Court as to its decree in the school cases, and even more by his characterization of that proposal, during these hearings as proving his "understanding and moderation."
You will recall that Mr. Sobeloff suggested that the Southern States, which have had segregated schools ever since the founding of our Nation and which have the separation of races in such activities imbedded in their statutes and constitutions, be given 90 days to comply with an order of the Supreme Court abolishing this whole way of life. I believe he did say to this committee that his intention was that more time might be given if necessary but he felt 90 days was enough for them to come