Chairman Eastland. He testified that he took the recommended course that the Court followed.

Senator ROBERTSON. I don't follow you, sir.

Chairman EASTLAND. He testified that he recommended that he had three alternatives. One, the 90 days. Two, give the States as long as they desire. Third was a reasonable period of time of whatever the Court recommended, the Court decision stated, and he followed that, which was middle ground.

Senator ROBERTSON. Well, I don't want to do him any injustice. My information, and that is what this is based upon, is that he did recommend 90 days and he said before this committee when testifying on the subject of 90 days that he also told the Court that that time should be extended for anybody who came in with a definite plan which the Court could accept or reject with full instructions of what comes next.

Even in the District of Columbia, where haste to comply with the Court's order has been the watchword, no such time table as that was feasible and Mr. Sobeloff's suggestion as applied to the deep Southern States was totally unrealistic, as the Court itself recognized in its decision.

If he now says it wasn't 90 days that it was as long as necessary or a reasonable time, then I am willing to say that that was the objection.

But, finally, Mr. Chairman, and most importantly, the people of Virginia object to the nomination of Mr. Sobeloff because his stated views on the functions of the judiciary in our system of government are contrary to the principles which our own forefathers took such pains to imbed firmly in our Federal Constitution.

Not only once, but on several occasions, as has been noted during these hearings, Mr. Sobeloff referred to the Supreme Court of the United States as "the final formulator of national policy," and said the Court properly seeks the appropriate time to consider and decide important questions "just as Congress or any other policymaking body might."

When questioned about those statements he has affirmed them, quoting context which does not in any way change the basic and obvious meaning, and has said that this was

as orthodox as any expression that has ever been made in the long legal history of this country.

We in Virginia do not recognize that kind of orthodoxy.

We recall that Thomas Jefferson, a Virginian, said that to give judges the right to decide what laws are constitutional and what are

not

not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.

We recall that Woodrow Wilson, another Virginian, said:

The integrity of the powers possessed by the States from the first depended solely upon the conservation of the Federal court.

And, even though John Marshall, also a Virginian, is recognized as the individual most responsible for the prestige and authority of the Supreme Court, we have heard a member of the present Court, Mr. Justice Frankfurter, admit that if Marshall were now alive "nothing would be bound to strike him more than the enlarged scope of law since his day."

We remember also that Abraham Lincoln, who was not a Virginian or even a Democrat, said:

If the policy of the Government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned the Government into the hands of that eminent tribunal.

We cannot, Mr. Chairman, reconcile those views, which to us are the orthodox ones, with Mr. Sobeloff's contention that although the Court must respect policies specifically fixed by the Congress and not in violation of the Constitution, that whenever it can find an area where the Constitution is silent or indeterminate and where Congress has not spoken "in terms" it is the privilege of the judges to step in and make policy for themselves.

Mr. Chairman, back in 1783 when the States were still under the Articles of Confederation but when the need for a Constitution was becoming apparent, George Washington sent a circular to the States in which he said:

There are four things which, I humbly conceive, are essential to the well-being, I may even venture to say, to the very existence of the United States as an independent power:

First, an indissoluble union of the States under one Federal head.

That is the reason I said the conflict of 1861 was most unfortunate. It was not necessary. It was brought on by hotheads on both sides. We need an indissoluble union. I hope we always have it. I regret that we were pushed to the point where we thought there was nothing we could do except to try to break it up.

Now, as God in his infinite wisdom deems, he didn't see fit to let us succeed.

Second, a sacred regard for public justice.

Think of what they call in the Communist countries the people's club. In all these international meetings I attend, they say they have a democracy but they call it a people's democracy. What is a people's court? It would be what would be called in one of our jails a kangaroo court. Does anybody have any confidence in Stalin's type of court where they make them confess, torture them to confess, and then take them out and shoot them and they call that justice. The people's court.

Could anybody have confidence in that? Not a bit in the world. We fortunately have tried to have judicial courts which Washington said the public could have confidence in the kind of justice they would dispense.

Third, the adoption of a proper peace establishment, and

Fourth, the prevalence of that pacific and friendly disposition, among the people of the United States, which will induce them to forget their local prejudices and policies, to make those mutual concessions which are requisite to a general prosperity, and in some instances to sacrifice their individual advantages to the interest of the community.

Off the record, Mr. Chairman; I am going to be through in about 2 minutes. I am sorry to have run over my time but I will hurry. (Discussion off the record.)

Senator ROBERTSON. Those four cornerstones of our Federal Union remain basic today, and I beg you not to undermine two of them by

forcing Simon E. Sobeloff on the bench of the Fourth Judicial Circuit against the wishes of a majority of the people who would fall under his jurisdiction.

"A sacred regard for public justice" implies confidence in the judges which, for the reasons I have outlined, this candidate does not have and could not obtain.

The people of Virginia and the Carolinas will not be encouraged to "forget their local prejudices and policies" or to make "mutual concessions" by the imposition of force from the outside dictated by political pressure groups and enforced by the chosen instrument of those groups. Given evidence of "pacific and friendly disposition among the people of the United States," you will find us ready to make sacrifices to the interest of the Nation but we must have the patience and understanding of those who have not sat where we have sat nor carried our burdens.

And in conclusion I ask unanimous consent to have inserted in the record at the conclusion of my prepared statement this editorial from the Richmond News Leader of June 19, a little of which I read at the outset of my talk.

Senator DIRKSEN. Without objection.

(The document referred to is as follows:)

[From the Richmond News Leader, Tuesday, June 19, 1956]

INTERPOSING AGAINST MR. SOBELOFF

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 do, and if we should, and he should answer us, we should despise him for it. Therefore, we must take a man whose opinions are known."

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.

Lincoln's comment comes to mind anew in the nomination of Simon Sobeloff, Solicitor General, for a seat on the Fourth United States Court of Appeals-the Maryland, Virginia, and Carolinas circuit. Members of Congress cannot, with propriety, ask Mr. Sobeloff exactly how he would rule on such pending cases as those involving segregation on buses, the lease of State park property, and the like. But in passing on this nomination, southern Senators certainly can ask themselves if they should take a man whose opinions in this field are quite well known.

Mr. Sobeloff favors racial integration in the schools. As Solicitor General, his opinions on the question are of record. And while he has been making some moderate noises lately, in a desperate effort to get himself confirmed, he is about as moderate on the subject, we should imagine, as Thurgood Marshall, chief counsel to the NAACP.

More than this. Two years ago Mr. Sobeloff made a speech in which he expressed his own view of the judicial function. "In our system," he said, "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." The court should consider the timing of its pronouncements, said Mr. Sobeloff, "just as Congress or any other policymaking body might."

Now is it true, as the Roanoke Times pointed out last week, that this conception of the court's role is not new. A good many other jurists-some of them pretty good jurists have taken the same view of the judicial function, that courts make not only law but policy also. Yet it is clear that the sort of leftwing "policymaking" Mr. Sobeloff would bring to the circuit court is not the sort of policymaking that advocates of States rights and a strict construction of the Constitution would desire.

On February 1, Virginia's Assembly adopted a resolution interposing this State's sovereign powers against the Supreme Court's illegal action in the school cases. The assembly pledged itself, at the time, to resist the encroachments by every legal, honorable, and constitutional means.

We are moved to observe that one such legal, honorable, and constitutional means lies in opposing Mr. Sobeloff's confirmation with all the vigor and influence our Senators can command. It should not be forgotten that while Representatives represent people, Senators represent States. Mr. Boyd and Mr. Robertson are "Senators from Virginia." Congressmen must be residents of the district "in which" they are chosen, but the preposition, in the case of Senators, requires them to be residents of the State "for which" they serve in Congress.

The known liberality of Mr. Sobeloff's opinions most certainly makes him objectionable as a Federal circuit judge in the Old South. Our Senators have fought his nomination for more than a year now, and should keep right on fighting it until the President abandons the effort and names a jurist more acceptable to this region.

Senator DIRKSEN. Let me, Senator Robertson, ask you one question about formulation of policy by the Supreme Court.

Isn't it almost inescapable that the Supreme Court in a sense will make policy? For instance, you doubtless remember very well the so-called Schecter case that came up under a provision of the old National Industrial Recovery Act.

Now, there was Congress making policy in an overall law at a time, of course, when we were besieged with an economic dislocation. When it finally went to the Court, the Court struck down that provision.

Wasn't that making policy by the very striking down

Senator ROBERTSON. No. With all due deference the Court in that case said Congress has exceeded its constitutional powers. Senator DIRKSEN. Certainly.

Senator ROBERTSON. Now, whenever the Court said you have exceeded your constitutional power, I will never criticize it even if I don't think the Court is right. That is their function which we have pacifically accepted from the days of John Marshall in Marbury v. Madison. But when they say there is nothing in the Constitution to restrain us, Congress hasn't acted, we will move into that particular void and announce a policy, I say the courts are then engaging in an unjustified legislative function which the Founding Fathers never intended them to exercise.

Senator DIRKSEN. Now, we are speaking about policy. Now, you remember the Bituminous Coal Act. I think you were on the House Ways and Means Committee at the time.

Senator ROBERTSON. I certainly did fight it.

Senator DIRKSEN. You remember President Roosevelt sent a message to the House and your committee. He said

Senator ROBERTSON. If you have any doubts about the constitutionality, however reasonable, reserve them and let the Court pass on them, and he was going to pass on the Court. Did you think I took that? I did not.

There is nothing in the Ways and Means Committee that I condemn more than that, and what did we do on that new one? We

turned it down, and didn't my old friend, Fred Vinson, come to me and beg and plead. I said:

"Fred, I can't see it at all. It is absolutely unconstitutional, and I am not going to take any part of it. I have an oath and I am not going to pass up my responsibility to any court to say whether I advocate the Constitution. When I am convinced it is unconstitutional, I am going to say it right here and now," and I did.

Senator DIRKSEN. Whether the Court actually invalidated it, it was still making policy by doing it, wasn't it?

Senator ROBERTSON. Only making policy to this extent. It put a restraint on Members of the Congress who weren't living up to their oath to uphold the Constitution, who passed that responsibility over to the Court.

When they do that and make a policy which is not supported by the Constitution, the Court in striking that down, of course, reserves that policy; but, in doing it, it exercises what we have considered to be a legitimate function of the Court ever since the days of John Marshall: that, if a legislative body exceeds its constitutional power, the Court has a right to say so.

Senator DIRKSEN. But, no matter what attitude

Senator ROBERTSON. Marshall pointed out-he said, I will never, I will never set aside an act of Congress, however much Í disagree with the policy of it, if it was within their power, and after Marbury v. Madison he never reversed another act of Congress. Do you remember that? And all of his greatness is on the decisions upholding the acts of Congress as being within the Constitution.

He may have stretched the meaning a little bit but he upheld it, don't you see? He never reversed another one.

Senator DIRKSEN. But policy is the thing that becomes the final guideline for economic and social conduct of the country, and when the Court has spoken on it and taken a position, it has made policy.

Now, to take probably an even more illustrative case, we are holding hearings presently in the Monopoly Subcommittee on H. R. 1840 and Senate 11. The reason that bill is before us is because the Supreme Court in 1951, in interpreting the Robinson-Patman Act, took a certain position.

Now, only as late as yesterday in this very room the chairman and one member of the Federal Trade Commission came in and said they disagree with the Court. Three other members of the Federal Trade Commission take an opposite view. But when the Court passed on that Standard Oil case in 1951, it absolutely interpreted and thereby it made policy for the country, and I am quite confident that that is what Mr. Sobeloff had in mind when he said it becomes the formulator of policy, by the very decision which it renders whether it be on one side or the other.

Senator ROBERTSON. When I have more time to amplify my views— he fully endorsed the position of the Supreme Court that it not only could but should be a policymaking body. Now, what the Supreme Court should in my opinion have said in the school cases was this:

"We are wholly unsympathetic to the viewpoint of the South on the subject of segregated schools. We think the law should be to the contrary. But that is a function, a legislative function; for the Congress, acting under power conferred upon it to implement the 14th.