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There would be a more wholesome feeling in the community if some intelligent, impartial, efficient, disinterested, outside inquiry were made by some lawyer skilled in that line of inquiry whose judgment has been accepted in the community as fair and impartial, with the understaning that that be done unostentatiously and conservatively and that the reports and the conclusions that he reaches be made to the counsel for the receiver, and to no one else, to be by the counsel for the received analyzed, interpreted, qualified and acted on, in their judgment, and as they see fit.
In other words, it would be primarily a court report, but one not brought to the court direct, but brought to the officers of the court, who are yourself (the receiver), and Mr. France, and Mr. Armstrong, and Mr. Wright; as counsel for the receiver. Only when they see fit to take action on it and advise the receiver of what action they believe ought to be taken on it, is action to be taken.
That leaves the matter entirely free and open to individual outside lawyers personally take any action they want. The appointment of a particular officer of the court seems desirable primarily to do that in the public interest, and to check back and report to the counsel for the receiver. This at least gives official standing to his conclusion, and the receiver's conclusion tacked on to his. Outside lawyers do not have to agree. To that end because of the particular qualifications Mr. Simon Sobeloff has, experienced as an eminent United States district attorney (and Judge Chestnut has said he was the best that Baltimore has ever had), I select him. At a testimonial banquet on his retirement from office I heard all present refer to his impartiality and his devotion to public duty-the court wants Mr. Simon Sobeloff to make this inquiry, with the understanding that his compensation may be considerably circumscribed. The court reserves the right to relieve him from further activities, as and when the court thinks a proper time to do so has come.
If the question of his impartial activities and inquiry results in disclosures that the receiver upon advice of counsel, thinks litigation ought to be instituted, why, then, there may be further opportunity and justification for his continued services.
We will adjourn until Monday morning, September 16, with the idea of resuming the hearing. Draw the order for such appointment, and start the inquiry today.
Mr. FRANCE. May I add that he incur no expense without the authority of the court?
The COURT. He shall incur no expense without the authority of the court.
Supplementing oral opinion and reasons stated therein, directed to the written up and filed in these proceedings, it is this 11th day of September 1935, by Circuit Court No. 2 of Baltimore City,
ORDERED, that Simon E. Sobeloff, Esq., be and he is hereby authorized and directed to make such investigations as will enable him to ascertain whether there is any probable cause for holding the officers and/or directors of the Baltimore Trust Co., or any of them, liable (and if so, the nature and extent of such liability), as the result of their conduct of the business of the Baltimore Trust Co. with particular reference to the deposition and administration of the assets of said institution in connection with which serious losses were suffered. EUGENE O'DUNNE.
Mr. SOBELOFF. Senator, if I may proceed with this memorandum. Senator O'MAHONEY. Please do.
Mr. SOBELOFF. I shall not undertake to refute all the inaccuracies that it contains, but some of the major things that seem to me require denial, at least.
There is a paragraph No. 2 on page 3 in which it is said:
referring to me
did use the confidences and information obtained from these former employersmeaning the receiver
to his subsequent advantage * *
I deny that. There is no shred of testimony to support it and no responsible witness has come forward or could come forward to sustain this allegation.
I would be interested to know upon what that was based.
* under a judicial masquerade, through a series of legal manipulations, he obtained control for a subsequent client of one of the most valuable assets, *** the Mathieson Building * * *.
You have already heard that I had nothing to do with this man obtaining control of the building. There is not a shred of truth in his charge.
There is a paragraph here which says that I violated certain canons of ethics, namely, by representing an interest against a client. You have already heard the refutation, and I need not go further than to say that there is no basis for it.
So far as confidences and information are concerned, I was not in the receiver's confidence, I received no information, I represented him only in the one matter of this suit against the directors. I had nothing to do with any other claims.
Now, I would like to take this opportunity, Senator O'Mahoney and Senator Watkins, to disassociate myself from something that was said by one of the witnesses appearing ostensibly in my behalf, and not at my instance, this gentleman who drew some invidious distinctions between me and the present members of the court.
I can only say that I hope that, if confirmed, I can attain a measure of the stature as judges that the present members of the court have ably demonstrated for a generation. I do not relish that kind of support, and I am not responsible for it.
I don't know whether you want me to go into some of these other matters or not. I am prepared to answer any questions, sir.
Senator O'MAHONEY. Mr. Sobeloff, I think it would be well for you to give the fullest response that you can, in general, before the questions are asked. Some will be asked, no doubt.
Mr. SOBELOFF. Yes, sir.
Senator O'MAHONEY. Any other points that you care to make?
Mr. SOBELOFF. May I address myself, then, to, first, the speech that I made to the Fourth Circuit Court of Appeals at Hot Springs, Va., in June 1954.
I spoke in the presence of the Chief Justice of the United States and all the judges of the Court of Appeals of the Fourth Circuit and the district judges of that circuit and, I may add, about 300 lawyers, mostly from the South. In all conscientiousness, I can say that I heard no criticism of that speech. It was later printed in full in the American Bar Association Journal.
I received letters, some in commendation, some merely commenting on various phases of the speech. Nobody has put the interpretation on it that is sought to be put on it in these hearings.
Senator WATKINS. Mr. Chairman, at this point, it seems to me it would be well to have that speech in the record for the information of the members of the committee and the Senate.
Mr. SOBELOFF. I should be glad to have it.
Senator WATKINS. It is printed in the March 1955 issue, volume 41, page 229, and I ask that it be made a part of the record.
Senator O'MAHONEY. The speech will be made a part of the record at this point.
(The document referred to is as follows:)
An Address by Simon E. Sobeloff, Solicitor General of the United States, before the Judicial Conference of the Fourth Circuit, Hot Springs, Va., June 29, 1954 When Judge Parker graciously invited me to address this conference of judges and lawyers of the fourth circuit I accepted with appreciation and alacrity, but as the time drew near I was filled with deep misgivings. What could I say in the presence of the Chief Justice and other Federal judges, many of long experience and skilled in American jurisprudence and procedure, that would not sound presumptuous or trite?
Moerover, some of the most interesting ideas that came to me had to be scratched at the post, as it were, because for one reason or another they were on the lengthy list forbidden by considerations of discretion.
Obviously you would expect me to speak about the work of the Solicitor General's Office. Even so, I feel some diffidence in lecturing, out of the fullness of 4 months' experience, to men whose daily business is Government litigation. The dignity and importance of this Conference entitle it to a more mature presentation than I fear I am able to make. It is hazardous to give expression to views which ought not to be more than tentative at this stage. So, instead of undertaking to supply the answers I shall share with you my early impressions, and indicate some of my uncertainties and perplexities.
Here in my home circuit, among old and cherished friends, I will perhaps be permitted to speak more freely about these things than I would dare when I go abroad in the land.
One can hardly cross the threshold of the Solicitor General's Office without instantly sensing the wide range and entrancing interest of its business. A lawyer could spend a lifetime in active practice in Baltimore and never have occasion to think about the so-called aboriginal land rights of the Alaska Indians or the conflicting water claims of cities and States. He might never be called upon to decide whether the marriage of a 14-year-old girl in Arkansas is void or only voidable; or to consider a railroad's liability for burning a national forest, or what type of evidence is sufficient to prove the paternity of a Chinese claiming American citizenship; or whether giving away calves involves realization of taxable income. Hardly would he find it necessary to consider whether the Government is liable for the killing of Indian ponies and driving the Indians off certain grazing lands in Utah; or whether a forced sale of radar equipment to the American Army in the Philippines involves a condemnation for which just compensation is due. He might never give thought to what practices are appropriate in weighing cattle arriving at the Chicago stockyards; or whether the waters between the island of Catalina and the mainland are a part of California; or what is the authority of the Federal Power Commission over natural-gas production; or whether Congress has admitted liability of the United States to the State of California for recruiting expenses in the Civil War.
Nor is he likely to be called upon to try his hand at drawing a decree in anything resembling the segregation cases.
Yet these exemplify the typical nature of matters that arise in the Department. They also illustrate the vast expanse and diversity of our country and its operations throughout the world. The number of certiorari petitions to be consideredours and our opponents'-runs to more than a thousand a year, and the number of requests for review in the courts of appeals is even greater.
Naturally there is a shift in perspective when one changes his position. The work in the Solicitor General's Office is different from that on the bench, or at the bar in private practice.
The judges here will perhaps agree that one of the chief joys of their office is to be able to witness a good stiff fight, sometimes even to participate tangentially, while decorously maintaining strict neutrality with no partisan anxiety over the outcome.
The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory but to establish justice. We are con:stantly reminded of the now classic words penned by one of my illustrious prede
cessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.
When a lawyer in private practice advances an argument, he feels free to drive as far as he can. He is out to win that case. He has, it is true, his professional ethics, but he has no responsibility for the future of the law. He is not fashioning a rule for later cases. Provided only that his contention is not so extreme as to arouse resistance, he is free to go as far as he will. But the judge writing the opinion must, as you know, be more wary. He must proceed with greater moderation and circumspection, realizing that what he says today will have to be faced tomorrow. He is aware that a rule declared in one case may be cited in the next. Unlike the lawyer, the judge is confined by his sense of responsibility for the symmetry of the law and by his obligation to maintain its continuity and conformity to basic principles and traditions.
The Solicitor General, too, though an advocate, must not forget that his client is the United States Government, which is dedicated to the same principles. Under our system he has a special relation to the courts and in particular to the Supreme Court. It is out of this multiple relationship that the Socilitor General's perplexities arise.
A chief problem is how to reconcile legality with decency and justice. He has a delicate and not easily definable function in the development of the law. He must be mindful of all of these things in deciding which cases shall be appealed from district courts to the courts of appeals and which merit presentation to the Supreme Court.
I do not have the exact statistics and they are not necessary. It is sufficient to point out that only a small fraction of the cases lost by the Government are appealed. In the first place, Government lawyers, like those in general practice, may experience that marvelous adjustment of perspective which often comes to the most ardent advocate when he loses—that is, the realization that he really should have lost. Sometimes the realization comes with the suddenness of revelation. In this circuit, as I can testify, it may possibly come before the end of the inevitable inquisition from the bench. Sometimes, when the trial judge or the court of appeals seems to have deviated from the law, and it is nevertheless apparent that this was done in an understandable human effort to square what is legal with what is just, the Solicitor General, finding no great importance in the case as a precedent, may well look the other way and say "no appeal" or "no certiorari."
A Government lawyer was telling me with a show of shock and dismay that in a certain case Judge Parker declared from the bench "well, if that is the law, any judge worth his salt will find some way to overcome it." I wasn't shocked, for if I must make a choice between a judge who is completely orthodox and applies without imagination or feeling a rigid rule-and another judge who is perceptive of the justice and commonsense of the case, even at the expense of some harmless departure from the strictness of the legal formula-I prefer the latter.
I know that you will not misunderstand my meaning. I am not counseling a group of experienced Federal judges to become anarchists: I merely say that if you find a way to do justice in a hard case, sometimes, not always, the Government may find a way not to appeal. I say "not always" for it often happens that despite our personal preferences in the instant case, we deem it necessary to appeal because of the harm apprehended from the operation of the prescribed rule in a wider orbit.
We can submit, in an appropriate case, without appealing or without seeking certiorari where the Government has lost below; but what do we do when we have won a bad case and the opponent carries the matter up on appeal or by petition to the Supreme Court? Do we resist, or do we confess error? In the nature of things we cannot often confess error, for even the passion for justice would not overcome the annoyance of the lower courts if we too often confessed error in cases where they had ruled in our favor. One district judge, reversed on appeal, suggested, when the Solicitor General refused to seek certiorari, that he, the district judge, should have the right to personal vindication by applying for certiorari himself. District judges and appellate judges might view the matter differently.
There have been instances, and doubtless there will be more, where confession of error is not only in order but is a moral necessity. In this connection I may relate the exeprience of a young lawyer on the Solicitor General's staff, who went into court and confessed error, but the court nevertheless gave him an
unwelcome decision for the Government. He came back moaning and gloating simultaneously, and said “I can't lose a case even when I try."
What impresses me, and depresses me, is that so often neither Government counsel nor the court is given the necessary leeway to soften harshness and mitigate aburdities which are inexorably commanded by the law. What Federal judge has not been torn in his heart by the inflexible minimum penalty prescribed in certain statutes? Recently I attended the Judicial Conference of the Fifth Circuit. Half of an entire session was devoted to the recital of instances of unconscionable penalties under the Boggs Anti-Narcotic Act. One judge told of a case where a highly respected pharmacist, with no prior record, violated the law by giving someone a small quantity of a narcotic drug to relieve acute suffering. He did it for no personal gain, but for humanitarian reasons, expecting that a doctor's prescription would follow. The evidence of the violation, however, was entirely clear and the jury was about to bring in a verdict of guilty. The judge related how he sent them back after explaining that if they convicted the defendant he would have no choice but to impose a minimum 2-year sentence. The jury then considered the matter further and brought in a verdict of "not guilty," to the immense relief of the judge. Of course, this is not an edifying story; but who can fail to sympathize with a judge put in such a difficult position by a rigid law passed by men of good motives who fail to foresee and under stand the consequences of their legislation?
Similarly, in some of the immigration and naturalization cases, both the law and its administration have, I fear, gone far beyond what would appear necessary to carry out policy, and needless hardships are being inflicted. Admittedly, the remedy cannot be supplied by judges alone. The Congress has broad powers in this area. Insofar as administration plays a part, Attorney General Brownell is already moving to relieve the abuses in bail procedures and more will be done, I am sure, under the new Commissioner of Immigration and Naturalization, General Swing, who combines with his Army disclipline a warm and understanding heart.
This brings me to the more general, still unresolved problem of the role of the courts in the review of administrative action. This I see exemplified again and again in the steady stream of papers that flow across my desk.
It is a difficult dilemma: On the one hand is the obligation to respect the separation of powers, for the disregard of this principle would itself lead to tyranny. Personalized judgments to meet particular cases are, we know, fruitful sources of future trouble. We must take care that that which satisfies the felt need today shall not breed confusion tomorrow. On the other hand is the limited but still broad role of the judiciary in determining whether fundamental rights guaranteed by the Constitution have been violated by the arbitrary exercise of power.
It has been pointed out that the due process clauses of our fundamental law are unique among national constitutions, even in the English-speaking countries. Yet this is an established feature of our constitutional system. In appropriate cases the power must be exercised with firmness and vigor, albeit with discretion. Experience has shown what is likely to happen when a court declines to interfere, out of deference to the separation of pwers, even though the administrator has acted harshly, cruelly, and outrageously. These are not my adjectives; the Supreme Court used them in a recent case, where it castigated the action under review but upheld its legality. In that case the action was mandatorily required by the statute, but sometimes administrators go to great extremes in what they think is a proper exercise of discretion. Only too often the administrator's ears tune out these denunciations; he hears only that his conduct is legal and he feels that he has been granted a license to continue in his course and go even further till checked. Each branch of our Government is limited by the others, but each must on occasion check the others if justice is to be achieved. In deciding in a given case whether to appeal the action of the reviewing court, these are among the pertinent considerations.
The Southland Manufacturing Company case (201 F. 2d) in this very circuit illustrates well that the Administrative Procedure Act failed to supply the hoped for guiding test as to how the reviewing judge determines whether or not to substitute his judgment for determinations of fact by administrators. As you know, that case evoked sharply divergent views by two of our most respected jurists, Judge Parker and Judge Soper.
A sometimes bothersome feature of the Solicitor General's duty of deciding what business to present to the Supreme Court is in dealing with the Government agencies concerned. His is the task of resisting their tearful importunities to