that Mr. Fortas can become one of the great Chief Justices of this country.

Justice FORTAS. Thank you, Senator.

Senator ERVIN. I will interject myself at this point.

Has anybody connected with the Supreme Court compiled any record which shows the number of cases which could not be prosecuted on account of the newly invented rules in the Miranda and the Wade and the Gilbert and the Stovall cases?

Justice FORTAS. No, Senator. As you know, a vast literature has grown up on the subject. There are statements by prosecuting attorneys and trial judges saying that Miranda has had little effect, and there are statements by prosecutors and trial judges saying Miranda has had a great effect. I know of no study that I consider to be very reliable, even studies that come out to the effect that Miranda has had very little effect. I do not think they are very complete or scientific. Senator ERVIN. The thing that puzzles me, and it is beyond my power of comprehension, that if the Constitution means what it was held to mean in the Miranda case, why one of the smart judges who had sat on the Court during the preceding 176 years did not discover that, and if the Constitution means what it was held in the Wade and the Gilbert cases, why one of the smart judges that sat on the Court during the preceding 177 years did not discover that meaning. And if the Constitution means the things that were announced in the opinions handed down on May 20, 1968, why one of the smart judges who served on the Supreme Court during the preceding 178 years did not discover it?

Justice FORTAS. Senator, again, much as I would like to discuss this, I am inhibited from doing it. I respectfully note, if I may, sir, that the granddaddy of these cases, in my judgment, and as reflected in the opinions of the Court, is a case that was decided in 1932. That case was decided by a Court that was subjected to criticism of a virulence and intensity that we had not theretofore encountered. That was the "Court of the Nine Old Men." They were criticized for being too reactionary. And the result was that this decision in 1932, this opinion written by Mr. Justice Sutherland—a much maligned Justice of the Court in those days- went without anything except a very temporary notice by the public. But it has affected subsequent judicial decisions in this field profoundly. That was the case of Powell v. Alabama. It was the famous Scottsboro case. It was in that case that Mr. Justice Sutherland said that the critical period in a criminal prosecution is from arraignment to trial-arraignment to trial. I think that can fairly be characterized as dictum. But it was that statement that I think has been sort of the granddaddy of all of this.

Now here I have done something I should not have done. I am sorry, sir.

Senator ERVIN. If Miranda, Wade, and Gilbert and those cases are descendants of that dictum, they are illegitimate descendants. They were not born in holy wedlock.

Justice FORTAS. The same thing was said about Alexander Hamilton. Senator ERVIN. Excuse me for trespassing on your time.

The CHAIRMAN. We will recess until 10 in the morning to meet in the caucus room in the morning.

(Whereupon, at 12:30 p.m. the committee was recessed, to reconvene at 10 a.m., Thursday, July 18, 1968.)

NOMINATIONS OF ABE FORTAS AND

HOMER THORNBERRY

THURSDAY, JULY 18, 1968

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess at 10 a.m., in room 318, Old Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, McClellan, Ervin, Dodd, Hart, Burdick, Tydings, Dirksen, Hruska, 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 will come to order.

Senator Hruska.

STATEMENT OF HON. ABE FORTAS, NOMINEE TO BE CHIEF JUSTICE OF THE UNITED STATES-Resumed

Senator HRUSKA. Thank you, Mr. Chairman.

Mr. Fortas, 3 years ago next month you were the honored guest of this Judiciary Committee. And at that time, before I asked questions, I indicated that I had been requested by my colleagues to ask a few questions. Some of the questions I propounded were inventions of my own thinking, others were as a result of these requests. Whenever it is a pertinent question, and when it is relevant, I like to comply with these requests.

That same background will attend a few questions that I have today-not more than one or two-because a good many of the questions I have been asked to propound to you already have been asked by other members of this committee. There is something to be said for asking questions requested by colleagues. It is fair to the colleague who makes the request, it is fair to those who are interested in the question, to our colleagues in the Senate, and also to the nominee, because he gets a chance to comment upon things which are current in the press and in the thinking of people generally.

Now, on yesterday you referred to the occasion when you said that there were two things that have been vastly exaggerated with respect to you-I am reading now from the hearings of August 1965-"One is the extent to which I am a Presidential adviser, and the other is to the extent to which I am a proficient violinist." And then you stated, "I am a very poor violinist, but very enthusiastic."

Justice FORTAS. That is true, Senator.

Senator HRUSKA. There are some people who think you are good as well as enthusiastic.

Justice FORTAS. I appreciate that.

Senator HRUSKA. Nevertheless, from your avocation with the violin and violin music comes the question which I want to ask. It has to do with your participation in a case that was decided on May 20, 1968, entitled "American Federation of Musicians v. Joseph Carol and others" It is thought by some, because you have a union card-and I presume you have

Justice FORTAS. I do not.

Senator HRUSKA. Did you at one time?

Justice FORTAS. Senator, when I was a boy in high school and in college, I played the violin professionally in Memphis to make my way through school. I was not a union member. The union was virtually unknown there. I have never been a union member. For many years now, my musical activities have been strictly, and perhaps excessively, on the amateur side. My former partner, Paul Porter, used to refer to the quartet with which I play at my own house as the "3025 N Street strictly no refund string quartet." And that was the limit of it.

Senator HRUSKA. At any rate, it has been suggested to this Senator that because you were a union member, or are, or had been, together with the fact that one of your law associates or law partners disbursed some moneys for the 1964 inaugural committee-he was chairman of the music committee, and he paid out the money of the committee to the various bands that played at the different places in Washington during those festivities and I think the amount was about $28,000-it was suggested to this Senator that perhaps that should have been a basis for your disqualifying yourself as a participant in the case of American Federation of Musicians v. Joseph Carrol.

So with those allegations, if you have any further comment, this is the time to make it.

Justice FORTAS. Thank you, Senator, I do. Number one, as I said. I am not and have never been a member of the union. Number two-I do not believe that there is any accuracy whatever in the statement that one of my former partners was head of the music committee for the last inauguration, and paid out money to the orchestras.

Senator HRUSKA. Well, I believe I should call your attention to the letter of James Symington, who does sign himself as chairman of the music committee.

Justice FORTAS. Oh, James Symington

Senator HRUSKA. As I understand it, Jim had the job of disbursing the moneys furnished him by the inauguration committee to those bands who had rendered some professional services.

Justice FORTAS. I am sorry. I did not think of Jim Symington. Jim Symington was never a partner of my former firm-much to my regret, and the regret of my partners then. Young Symington did not stay with the firm long enough to achieve a position of a partner. I just did not think of him in connection with your question.

Senator HRUSKA. Well, would either of those contingencies have resulted in any different treatment of your continuing to participate

in that case? Was there anything in the activities of Mr. Symington that would have laid a foundation for your disqualifying yourself from participating in that case?

Justice FORTAS. Senator, I do not even know whether he was-this would have been 1964

Senator HRUSKA. Correct.

Justice FORTAS. I do not know whether Jim Symington was associated with the firm at that time. If he had been associated with the firm at that time, and if I had recalled, which I did not, or had it been called to my attention, which it was not, that he had paid out money to the musicians' union, I would certainly have pondered that, and probably discussed it with some of my brethren on the Court. I doubt very much that that remote set of circumstances would have justified disqualification.

May I say this about disqualification, Senator?

Senator HRUSKA. I would like to know, because Mr. Justice Marshall and the Chief Justice disqualified themselves in this particular case. Justice FORTAS. I

Senator HRUSKA. That is my understanding if you do not mind— because I have the file here, and you would have to draw on your memory. The reason Mr. Justice Marshall disqualified himself was that he sat on a panel of the circuit court in earlier stages of the litigation, but I do not know what the fact is with reference to the Chief Justice.

Justice FORTAS. Well, I do not know whether I am disclosing a fact from the Chief Justice's past, but he once played the clarinet, I believe. And I believe that he did have an honorary membership-a membership, or an honorary membership-in the American Federation of Musicians. If I had been a member of the federation, I probably would have disqualified myself, too, just out of an excess of caution. It is a lot easier to disqualify oneself sometimes than it is to serve. You get some time off that way, Senator.

Senator HRUSKA. Well, perhaps the statute of limitations has run on the Chief Justice's activities on the clarinet.

Justice FORTAS. Perhaps. I think he still has a honorary membership. But I think he is no longer a clarinet player.

Senator HRUSKA. Have you any further comment on this situation? Justice FORTAS. No, thank you, sir.

Senator HRUSKA. Now, then, the other series of questions has to do with your representation of the government of Puerto Rico at a time following your separation from service of the Government. Your latest post at that time, as I remember it, was Under Secretary in Charge of Territorial Affairs. Is that correct?

Justice FORTAS. No; it is not. I was Under Secretary of the Interior. One of my responsibilities was the supervision of the Division of Territories, which had its own chief. My principal responsibilities at that time were the management of the Department-the budget, the personnel, and that sort of thing.

Senator HRUSKA. How long had you been in that post?

Justice FORTAS. About three and a half years, since 1942, at the time.

Senator HRUSKA. And then at a later time, after you separated yourself, you did, on a retainer basis, represent the government of Puerto