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Senator O'MAHONEY. Well, you may file a list with the clerk of the committee. The directors' names will be inserted in the record, but the other list will be in the files of the committee.
Do you desire to testify?
Mr. HERRICK. I should like to be heard very briefly.
Senator O'MAHONEY. It is the plan of the Chair, after consultation with Senator Watkins, to recess at 1 o'clock for an hour; then we shall return to this room and hear others who may wish to testify. We will hear you now, sir. What is your name?
STATEMENT OF PHILIP F. HERRICK, REPRESENTING THE FAIRFAX CITIZENS COUNCIL
Mr. HERRICK. My name is Philip F. Herrick. I am a member of the bars of the District of Columbia and Virginia. I appear here in representation of the Fairfax Citizens Council, which opposes the nomination of Mr. Sobeloff.
I should like to say, Senator, that this is an unpleasant task for me to oppose another attorney. Sometimes lawyers have to do unpleasant tasks.
I have filed on behalf of the Fairfax Citizens Council a written statement, and I shall not read that but shall digest it briefly. The citizens council opposes the confirmation of Mr. Sobeloff for the following reasons:
First, they do not believe that he is in a position to be impartial in the important cases involving integration which will necessarily come before this court. There are many issues involving integration which are still unresolved. Those issues may be resolved by the courts. We don't know how they will be resolved.
The problem of integration is probably the most important issue presently before the people of the Commonwealth of Virginia. Its resolution will not be easy. There are still some issues which will be before the court, such as the time when compliance with the Supreme Court decree will be necessary, and such as whether contemplated steps in some of the Southern States which include the use of public funds to place scholars in private schools, or perhaps even the abolition of the schools themselves-those issues may come before the courts, and my clients do not feel that Mr. Sobeloff is in a position to be impartial, he having expressed himself not only as the Solicitor General speaking for the United States, but also in his private utterances.
Senator O'MAHONEY. Did you mean it when you said your "clients"? Mr. HERRICK. I meant it when I said my "clients," Senator.
Senator O'MAHONEY. Then you are appearing here on behalf of clients?
Mr. HERRICK. On behalf of clients; yes, sir.
Secondly, the Citizens Council does not approve of Mr. Sobeloff's conduct in refusing to participate before the Supreme Court in the Peters case. They feel that he should either have played ball with the rest of the team, or gotten off the team.
Allied with that is the question
Senator O'MAHONEY. Do you mean by that that a judge should surrender his own convictions
Mr. HERRICK. No, sir.
Senator O'MAHONEY (continuing). If the team does-
Senator O'MAHONEY (continuing). If his convictions do not agree with the captain of the team, should he set them aside? meaning?
Mr. HERRICK. No, sir.
Senator O'MAHONEY. All right.
Mr. HERRICK. By no means is that my meaning. Let me make myself clear.
Senator O'MAHONEY. You said he should play ball with the team. Mr. HERRICK. I respect Mr. Sobeloff's convictions. I don't believe that he should change his convictions. But when the time comes when the boss says, "We have got to go ahead with this," perhaps it should be his duty to resign. That is all I say. More power to him for his convictions.
I have got some, too, that I would not give up for anything. Allied with the Peters case is the case of Lester versus Parker, the so-called Coast Guard case, which also involved confrontation of witnesses in a security case. There the Solicitor General refused to ask
It was an important case. It involved the validity of regulations of the Coast Guard.
My clients, and I again use the word advisedly, feel that the Supreme Court should have had the opportunity to pass on the validity of those regulations. They were declared invalid by the Circuit Court for the Ninth Circuit.
Thirdly, and I will be very brief on this, Mr. Sobeloff has expressed his disagreement, I believe, with the philosophy of the McCarranWalter Act. The members of the Fairfax Citizens Council are in accord with the philosophy of the McCarran-Walter Act, and they oppose him for that reason.
Fourth, and last, there has been given to you a quotation from Mr. Sobeloff with respect to the timing of issues, apparently deliberate timing of issues, by the Supreme Court.
His quote, the quotation is such that it indicates to me that he subscribes to that. Î shall not read that. It is in my statement.
My clients disagree with the philosophy that a court can play politics or withhold justice in a given case by selecting cases on a "timely" basis. They feel that the court should take cases as they come; that is, the important cases.
I think that is all I have, sir. I appreciate being heard. (Mr. Herrick's prepared statement is as follows:)
STATEMENT OF THE FAIRFAX CITIZENS COUNCIL THROUGH ITS COUNSEL PHILIP F. HERRICK IN OPPOSITION TO CONFIRMATION OF SIMON E. SOBELOFF AS A JUDGE OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT
My name is Philip F. Herrick. I am a member of the bars of the District of Columbia, Virginia, and Puerto Rico. I represent the Fairfax Citizens Council whose membership is drawn from the whole State of Virginia.
The Fairfax Citizens Council opposes the confirmation of Mr. Sobeloff. His nomination is not acceptable to its members nor, they believe, to the people of Virginia. Their reasons are the following:
1. Mr. Sobeloff could not be expected to be impartial in some of the most important cases which will be coming before the fourth circuit during the next few years. Not only in his official position as legal spokesman for the United States but also in his private utterances Mr. Sobeloff has shown that his mind is made
up with respect to the issue of enforced integration in the public schools. Thus, Mr. Sobeloff stated in a speech on September 16, 1954:
"Despite distracting commotions and confusion crosscurrents notable gains for constitutional rights are presently being achieved. *** A statute which prohibited discrimination on account if race in the restaurants of our Nation's Capital has been rescued from long years of desuetude and made effective by the Supreme Court. The age-old, humiliating policy of discrimination along color lines in the Armed Forces has been practically eliminated. It is noteworthy, and deeply reassuring to us as we contemplate other areas, that despite numerous warnings that this policy would not work, it is working, and there have been no untoward incidents. Within the past year, a committee headed by Vice President Nixon, and on which Deputy Attorney General William R. Rogers represents the Department of Justice, has implemented a policy banning racial discrimination by contractors engaged in Government work. Just a few days ago, President Eisenhower gave added strength to this policy by approving a revised clause for all contracts with the Federal Government. Even more importantly, racial segregation in public schools has been declared unconstitutional by the Nation's highest Court in a history-making unanimous opinion * * *" Also, on April 28, 1954 he stated:
"Yet the picture is not altogether somber. There have been notable gains in important sectors in the struggle for civil liberties, particularly the establishing of equal rights. This has become a prime concern of Government. I can speak freely of these things without being suspected of boasting, for they happened before I came into office.
"The Supreme Court has recently made illegal discrimination on account of race in restaurants in our Nation's Capital. More significant still, the age-oldhumiliating policy of discrimination along color lines in the Armed Forces has, in the year just ended, been largely eliminated and will soon be a thing of the past. I am proud that President Eisenhower has given the force of his leadership to this end. It is noteworthy and deeply reassuring that despite ominous warnings that this policy wouldn't work, it is working, and there have been no untoward incidents. Within the past several months, a committee headed by Vice President Nixon, and on which the Deputy Attorney General William P. Rogers represents the Department of Justice, has implemented a policy banning racial discrimination by contractors engaged in public work."
The doctrine of enforced integration is a burning issue in Virginia at the moment. It is the most important issue presently before the people of that Commonwealth. Its resolution will not be easy, and to a large degree it may be resolved by the action of the Federal courts. To have a man on the fourth circuit who is not and could not be expected to be impartial on this issue is not acceptable to the people of Virginia. The members of the Fairfax Citizens Council join in the statement of Senator Thurmond of July 15, 1955, wherein he states that Mr. Sobeloff could not sit in impartial judgment in cases involving the constitutional rights of the States, specifically mentioning the integration problem. 2. The members of the Fairfax Citizens Council disapprove of Mr. Sobeloff's conduct in refusing to participate before the Supreme Court in the Peters case and in refusing to ask for certiorari in the so-called Coast Guard case of Parker versus Lester, both of which cases involved the delicate problem of adjusting the Nation's security with individual rights. It will be recalled that Dr. Peters was discharged from his Federal position under the Government's loyalty program. Mr. Sobeloff's position was that while the concealment of witnesses might sometimes be necessary the Government should have to prove such necessity before an impartial board. My clients feel that he did not do his duty as Solicitor General in those cases. They feel that in the Coast Guard case he should have requested certiorari of the Supreme Court and left to that Court the decision of the important question whether the litigant was entitled to be confronted with the witnesses against him; they feel that in the Peters case he should have gone along with the Government's position or resigned. They do not disagree with his right to assert his own convictions, but feel that he should have either played ball as a member of the team or gotten off the team.
3. The members of the council oppose Mr. Sobeloff because of his disagreement with the philosophy of the McCarran-Walter Act. On September 16, 1954, Mr. Sobeloff stated:
"I am convinced that departures in our immigration laws from the traditional role of America as a haven for the oppressed will before too long be corrected, as the President has urged. While recognizing the good motivations of those who enacted the present laws, I respectfully submit that these provisions are
working unnecessary hardships without compensating advantage to the Nation. They go far beyond the needs of security or economic protection. When realization of this enters the heart of America, the American conscience will bring about a restoration of the wiser and more beneficent policies of an earlier day. These policies were not only more generous and humane, but they served the highest interests of the Nation. People of diverse antecedents who were afforded the opportunity responded by adding their genius and talents, their labors and devotion, to the common store, to the enrichment of the cultural pluralism which is both a source and a distinguishing mark of America's greatness. These things, too, have a bearing on the climate of freedom ***”
4. On June 29, 1954, speaking before the Judicial Conference of this same Fourth Circuit, Mr. Sobeloff stated:
"*** The Court may reject a case, not because the question is unimportant, but because it thinks the time not ripe for decision. In our system the Supreme Court is not merely the adjudicator of controversies, but in the process of adjudication it is in many instances the final formulator of national policy. It should therefore occasion no wonder, if the Court seeks the appropriate time to consider and decide important questions, just as Congress or any other policymaking body might. For example, for several years before taking the school-segregation cases the Court repeatedly turned away opportunities to decide questions in that area, perhaps because they deemed them premature. Lately it declined to review a ruling on segregation in public housing, perhaps because the Court thought it best, after deciding the school cases, not to say more on other aspects of segregation at this time. Or the Court may think the record in the case at hand not adequate or otherwise unsuitable to raise and decide the point. We can only speculate. In the decision of great constitutional questions, especially those which are in the realm of political controversy, timing can be of supreme importance * * *”.
My clients disagree with the philosophy that a court can play politics, or withhold justice in a given case, by selecting cases on a "timely" basis. They feel that the Court should take important cases as they arise.
5. The members of the council have been advised that the nominee's actions in connection with the so-called Baltimore Trust Company case may be investigated in detail. They believe that any action on his nomination in advance of such investigation would be premature.
For the first four reasons presented above, the members of the Fairfax Citizens Council oppose the confirmation of Mr. Sobeloff; for the fifth reason expressed they counsel further investigation.
Senator O'MAHONEY. Senator Watkins, any questions?
Senator O'MAHONEY. We will stand in recess until 2 o'clock, when we will reassemble here to continue the hearing.
(Whereupon, at 1 p. m., the subcommittee recessed, to reconvene at 2 p. m. of the same day.)
Senator O'MAHONEY. The committee will come to order.
Mr. Dunston, will you identify yourself for the record?
STATEMENT OF BRUCE DUNSTON, RICHMOND, VA.
Mr. DUNSTON. Bruce Dunston, 8712 Broad Street Road, Richmond, Va.
Senator O'MAHONEY. What is your occupation?
Mr. DUNSTON. My occupation is private real estate.
Senator O'MAHONEY. Are you a lawyer?
Mr. DUNSTON. No, sir. Private real estate, not as agent, but I have no license; buying, selling real estate, but buying personal real estate. Senator O'MAHONEY. You have no license to buy or sell real estate, but just buy and sell your own?
Mr. DUNSTON. That is right.
Senator O'MAHONEY. You may proceed.
Mr. DUNSTON. Yes, sir.
The speaker just prior to me urged every member of the subcommittee to get at the bottom of the opposition to Mr. Sobeloff's nomination, and I urge you to do that. I wouldn't mind serving as a guinea pig for that purpose.
I got up this morning at 3 o'clock so that I could be here today. I neglected my business. I have no children attending school, and yet this thing strikes me to the very foundations of my being, and I would like you to analyze just why that is.
I am proud of my heritage of race. I also am a believer in constitutional law. And Mr. Sobeloff, when he expresses judgment for the forced mixture of races, does not assure the existence of the white race.
And also, when Mr. Sobeloff approves of the illegal decision of the Supreme Court of May 17, 1954, he does not show that he believes in constitutional law.
Now, I feel very strongly about this, and it is just not something I have just worked myself up, as you may say, about it.
I want to read you just the first few paragraphs of a letter to my Senator, Senator Harry Flood Byrd, a man for whom I have great respect and confidence. I said to him:
DEAR SIR: In order that we may not eventually lose all semblance and benefit of written law, I write to you as my representative in the Congress of the United States to do all within your power to keep Simon E. Sobeloff off the bench in Virginia, the Fourth Circuit Court of Appeals.
He is not only extremely radical in his interpretation of what constitutes law, but is totally unsympathetic with the problems of the white people of the South. Now, I want to read you this from Senator Strom Thurmond:
I shall vote against the confirmation of Mr. Sobeloff to the Fourth Circuit Court of Appeals when his nomination is presented to the Senate. A brief review of his record convinces me he could not sit in impartial judgment as a member of the court which may review cases involving the constitutional rights of the States. He has been a strong advocate of integration of races in the public schools.
I want to read you this from the Baltimore paper. It says:
Simon E. Soboloff has been quoted in the press as declaring in a speech at Baltimore last fall that the Supreme Court of the United States has the power to determine policies in this country as well as the timing of changing policies. That is from the press. Mr. Sobeloff is present, and if he is quoted properly, why, that is what the press says here. If he denies it-just as you want.
Senator WATKINS. Did you ever check that to see whether that is right or wrong?
Mr. DUNSTON. Well, I checked it this way: Since Mr. Stephenson is here, I listened to him while he spoke, and I noticed there that he said in here that Sobeloff's speech before the Judicial Conference of the Fourth Circuit at Hot Springs on June 29, 1954, not only said the same thing that the Supreme Court was to decide the policy of law instead of Congress, as we have always been taught-but he also said that the Supreme Court could take its own time about any fixing of policy.
Senator O'MAHONEY. I assure you, Mr. Dunston-