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ALPHABETICAL LIST OF WITNESSES

Callas, Charles, former research assistant, Subcommittee on Internal
Security...

Christopher, Warren, Deputy Attorney General of the United States.
Clancy, James J., attorney for the executive board, National Organiza-
tion Citizens for Decent Literature, Inc...

Clark, Hon. Ramsey, Attorney General of the United States.
Courtney, Kent, national chairman, Conservative Society of America
Fortas, Hon. Abe, nominee to be the Chief Justice of the Supreme Court_ _

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Griffin, Hon. Robert P., U.S. Senator from_Michigan_

Hicks, W. B., executive secretary, Liberty Lobby.

Lewis, Marx, chairman, Council Against Communist Aggression

Pago

83

315

291

8

75

103,

164, 176, 212

89

100

41

283

77

69, 255, 271

65

Thornberry, Hon. Homer, nominee to be an Associate Justice of the Supreme Court

Yarborough, Hon. Ralph, U.S. Senator from Texas..

DOCUMENTS IN THE RECORD

Letter, dated July 8, 1968, from Alfred E. Jenner, Jr., American Bar
Association, in regard to the nomination of the Honorable Abe Fortas
to be Chief Justice of the United States
Letter, dated July 2, 1968, from W. T. Gossett, American Bar Association,
in regard to the nomination of the Honorable Abe Fortas to be Chief
Justice of the United States____

Telegram, dated July 10, 1968, from law school professors in regard to the
nominations of the Honorable Abe Fortas to be Chief Justice of the
United States and the Honorable Homer Thornberry to be Associate
Justice of the Supreme Court

Notice of hearing, dated July 12, 1968.

Telegram, dated July 8, 1968, to the American Bar Association

Letter, dated July 8, 1968, from Albert E. Jenner, Jr., American Bar
Association, in regard to the nomination of the Honorable Homer
Thornberry to be Associate Justice of the Supreme Court
Biographical sketch of Homer Thonberry

Biographical sketch of Abe Fortas.

Letter, dated July 19, 1968, from the Honorable Abe Fortas to the
Honorable James O. Eastland, chairman, Committee on the Judiciary,
U.S. Senate__.

Letter, dated July 26, 1968, from Paul A. Porter to the Honorable James
O. Eastland, chairman, Committee on the Judiciary, U.S. Senate_ - - - - -
(V)

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Exhibit

No.

SCHEDULE OF EXHIBITS

1. Department of Justice, memorandum, power of the President to nominate and of the Senate to confirm Mr. Justice Fortas to be Chief Justice of the United States and Judge Thornberry to be Associate Justice of the Supreme Court.

2. Associated Press news story, "Warren To Stay if Fortas Nixed,"
Asheville Times, July 6, 1968

3. Warren-Johnson letters, New York Times, June 27, 1968.
4. "Mansfield Warns Foes on Court Fight," Washington Star, June 28,
1968, news story by Lyle Denniston...

5. Editorial, "The Court and the Men," New York Times, June 30, 1968.
6. Title 28, section 371, United States Code, "Resignation or Retirement
for age" and title 28, section 294, United States Code, “Assignment
of Retired Justices or Judges to Active Duty".

7. Supreme Court nominations made during the last year of a President's last term in office, information supplied by the Library of Congress Legislative Reference Service.

8. The Gallup Poll, "High Court Gets a Low Rating," the Washington Post, July 10, 1968.

9. Letter, dated June 28, 1968, from Page Keeton, dean, University of Texas School of Law, to Hon. James O. Eastland on the nomination of Judge Thornberry

10. Letter, dated July 1, 1968, from David W. Dyer, circuit judge, U.S. Court of Appeals, Fifth Judicial Circuit, to Hon. George Smathers on the nomination of Judge Thornberry.

11. Letter, dated July 1, 1968, from Charles O. Galvin, dean of law, Southern Methodist University, to Hon. James O. Eastland on the nomination of Judge Thornberry..

Page

365

395

395

396

398

399

400

401

402

403

403

12. Letter, dated July 6, 1968, from Kenneth L. Black, professor of law, University of Florida School of Law, to Hon. James O. Eastland on the nomination of Judge Thornberry.

404

13. Editorial, "The President's 'Cronies' Are Both Outstanding Men," the Wichita Eagle, June 28, 1968.

404

14. Letter, dated July 1, 1968, from Wade H. McCree, Jr., circuit judge, U.S. Court of Appeals, Sixth Circuit, to Hon. Philip A. Hart on the nomination of Judge Thornberry....

405

15. Excerpt, hearings, part 10, Internal Security Subcommittee, 1952.
16. Excerpt, page 26, "Statement of Charles Callas in Hearings on the
Nomination of Abe Fortas," August 5, 1965----

405

409

17. Letter, dated April 1968, by Martin Luther King, Jr., on the basis for the poor people's campaign...

410

18. "What 36 State Chief Justices Said About the Supreme Court," U.S. News & World Report, October 3, 1958.

411

19. "How Constitution Is Amended," excerpt from Cooley's Constitutional Limitations, eighth edition, volume 1, page 70.

435

20. Excerpt from George Washington's Farewell Address_

435

21. Address by Hon. Sam J. Ervin, "Nomination of Thurgood Marshall to be Associate Justice of the U.S. Supreme Court," Congressional Record, August 30, 1967

435

22. Supreme Court decision, 1967, Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.

23. Supreme Court of Pennsylvania decision, 1967, Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union Local 590, opinion and dissent

451

24. Supreme Court decision, 1967, NLRB v. Allis-Chalmers Mfg. Co...
25. Supreme Court decision, 1967, United States v. Billy Joe Wade..
26. Supreme Court decision, 1966, Miranda v. Arizona...
27. Supreme Court decision, 1967, Keyishian v. Board of Regents-
28. Supreme Court decision, 1967, Gilbert v. California.

29. Supreme Court decision, 1967, Theodore Stovall v. Wilfred Denno
30. Supreme Court decision, 1967, Gary Duncan v. State of Louisiana
31. Supreme Court decision, 1967, S. Edward Bloom v. State of Illinois.
32. Mr. Justice Frankfurter's concurring opinion in Green v. United States -
33. Address by Hon. Sam J. Ervin, "Miranda v. Arizona, a Decision
Based on Excessive and Visionary Solicitude for the Accuse,"
August 22, 1956__

486

492

535

690

731

761

848

34. Supreme Court decision, 1966, Harper v. Virginia Board of Elections_
35. Supreme Court decision, 1967, Reitman v. Mulkey - -
36. Supreme Court decision, 1966, Katzenbach v. Morgan_
37. Supreme Court decision, 1966, United States v. Guest

Page

855

879

907

938

38. Address by Hon. Sam J. Ervin, "The Role of the Supreme Court as the Interpreter of the Constitution," May 6, 1966

39. Address by Prof. Phillip B. Kurland, University of Chicago Law
School, "The Court of the Union or Julius Caesar Revised," reprinted
from the Congressional Record, August 10, 1964.
40. Article by David Lawrence, "Famous Judge Rebukes Supreme Court,"
U.S. News & World Report, March 7, 1958...

980

986

992

41. Article, "How U.S. Judges Feel About the Supreme Court, News & World Report, October 24, 1958..

U.S.

994

42. Supreme Court decision, 1967, Warden, Maryland Penitentiary v. Hayden

997

43. Supreme Court decision, 1968, Sibron v. New York_ 44. Supreme Court decision, 1967, Terry v. Ohio....

1029

1072

45. Judicial restraint in the opinions of Mr. Justice Fortas..

1110

46. Article by Marquis Childs, "Law Industry," Washington Post, May 22, 1946.

1114

47. Memorandum, re judicial performance of Mr. Justice Fortas, submitted by Hon. Philip A. Hart.

1115

1124

48. Supreme Court decision, 1937, Breedlove v. Suttles, Tax Collector_
49. U.S. District Court decision, Western District of Texas, 1966, United
States v. Texas__

50. Decision, U.S. District Court, Western District of Texas, 1968,
University Committee to End the War in Vietnam v. Lester Gunn,
Sheriff, et al__

1132

1155

51. Exhibits, submitted by James J. Clancy, National Organization, Citizens for Decent Literature.

1159

52. Supreme Court decision, 1968, Joseph Lee Jones, v. Alfred H. Mayer Company

1182

53. Article, "Advise and Consent," from the Statesville, N.C., Landmark, submitted by Hon. Sam J. Ervin_.

1251

54. News story, "Fortas Condemns Columbia Protest," New York Times, May 24, 1968..

1252

55. Address by Hon. Owen J. Roberts, former Associate Justice of the
Supreme Court, "Now Is the Time: Fortifying the Supreme Court's
Independence," American Bar Association Journal, January 1949.
56. "The Appointment of Justices to the U.S. Supreme Court," statement
by Hon. Sam J. Ervin..

57. Proposed constitutional amendment relating to the appointment of
members of the Supreme Court, by Hon. Sam J. Ervin__.
58. Article by Prof. Philip B. Kurland, Wanted: A Nonpolitical Supreme
Court," from Nation's Business, May 1968.

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59. Municipal licenses, city of San Diego, Reed Enterprises, Corinth Publications.

1253

1258

1259

1259

1264

60. Executive Report 7, 80th Congress, 1st session, 1947, Committee on the Judiciary, on the use of judges in non judicial offices in the Federal Government

61. Report 1893, 86th Congress, 2d session, 1960, Committee on the Judiciary, expressing the sense of the Senate that recess appointments to the Supreme Court should not be made except under unusual circumstances..

ALPHABETICAL LIST OF CASES IN EXHIBITS

1268

1279

Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., exhibit 22.

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Green v. United States, Mr. Justice Frankfurter's concurring opinion, exhibit 32.

847

Harper v. Virginia Board of Elections, exhibit 34.

855

Page

Jones v. Alfred H. Mayer Company, exhibit 52.

1182

Katzenbach v. Morgan, exhibit 36

907

Keyishian v. Board of Regents, exhibit 27.

690

Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union Local

590, exhibit 23..

486

Miranda v. Arizona, exhibit 26

580

National Labor Relations Board v. Allis-Chalmers Mfg. Co., exhibit 24.

492

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University Committee to End the War in Vietnam v. Lester Gunn, exhibit 50.

1155

Warden, Maryland Penitentiary v. Hayden, exhibit 42.

997

NOMINATIONS OF ABE FORTAS AND

HOMER THORNBERRY

THURSDAY, JULY 11, 1968

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to call, at 10:45 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland (presiding), McClellan, Bayh, Ervin, Dodd, Hart, Burdick, Smathers, Hruska, Fong, Scott, and Thurmond. Also present: John Holloman, chief counsel; Thomas B. Collins, George S. Green, Francis C. Rosenberger, Peter M. Stockett, Robert B. Young, C. D. Chrissos, and Claude F. Clayton, Jr.

The CHAIRMAN. The hearing this morning has been scheduled for the purpose of considering the nomination of Associate Justice Abe Fortas to be Chief Justice of the United States.

Notice of the hearing was published in the Congressional Record July 1, 1968.

By letter of July 8, 1968, the Standing Committee on Federal Judiciary of the American Bar Association states that "The committee is of the view that Associate Justice Fortas is highly acceptable from the viewpoint of professional qualifications."

I place in the record a letter from the American Bar Association, dated July 8, 1968; a personal letter from Mr. William P. Gossett, president-elect of the American Bar Association, dated July 2, 1968, endorsing the nominee; and a telegram from various law professors endorsing the nominee.

(The letters and telegram referred to for incorporation in the record at this point follows:)

Hon. JAMES O. EASTLAND,

Chairman, U.S. Senate Judiciary Committee,
New Senate Office Building, Washington, D.C.

AMERICAN BAR ASSOCIATION,
Chicago, Ill., July 8, 1968.

DEAR SENATOR EASTLAND: Thank you for your telegram affording this Committee an opportunity to express an opinion or recommendation on the nomination of Honorable Abe Fortas to be Chief Justice of the Supreme Court of the United States.

Our Committee is of the view that Associatie Justice Fortas is "highly acceptable from the viewpoint of professional qualifications".

As the past distinguished chairman of our Committee, Robert W. Meserve, Esquire, of Boston, Massachusetts, wrote you under date of September 7, 1962 in respect of the report of the Committee concerning the qualifications of Honorable Arthur J. Goldberg to be an Associate Justice of the Supreme Court of the United States, we conceive it to be, in respect of the qualifications of a nominee to serve

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