NOMINATIONS OF ABE FORTAS AND HOMER THORNBERRY SATURDAY, JULY 20, 1968 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to recess, at 11 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland (presiding), Ervin, Hart, and Scott. 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. On yesterday the Chair asked Mr. Justice Fortas to explain his testimony about steps that the Court should take to disseminate public information about the decisions of the Supreme Court. He was requested to submit a letter, which he did. That will now go in the record. (The letter referred to follows:) Hon. JAMES O. EASTLAND, SUPREME COURT OF THE UNITED STATES, Chairman, Senate Judiciary Committee, MY DEAR MR. CHAIRMAN: During the hearings on my nomination as Chief Justice. I affirmed my belief that the Supreme Court should be subject to open, full public discussion and criticism. I said that "If the Senate agrees and I become Chief Justice, there is only one thing that *** has thus far occurred to me very strongly and that is that we must carefully explore some means of communicating to the public more information about what the Court does, so that the public can undersand and the public can more openly and more effectively criticize what we do" (p. 271). It has been suggested that I should elaborate this statement. The subject is not a new one. It has received the attention of the Court, the legal profession, and the press and media for some years. There are many difficulties in the way of working out specific improvements, but as public interest in the Court's decisions has increased, the need for finding some solutions to these problems seems to me to have increased. As you know, the Supreme Court functions as a body on all matters relating to the Court's work, so that anything that might be proposed would have to have the approval of the members of the Court as a whole. I must say at the outset that I have not had occasion or opportunity to consult my brethren on the Court as to their views, although I know that the problem has been given considerable attention by the Chief Justice of the Court and various of the associate justices. With this reservation, I list some of the avenues that I think might be considered in connection with the objective of improving public information about the Court's decisions: (1) A few years ago the Court began announcing and releasing its decisions and opinions on any day in the week when the Court was sitting. This superseded the previous custom of announcing decisions only on Monday. This change resulted in relieving to some extent the tremendous burden placed upon the press of receiving the opinions only when the decisions are announced from the bench and writing or dictating their accounts of the decisions for publication forthwith or promptly. Even with the change, the burden is still extremely heavy. The opinions are frequently long and complex. The time pressure is very great. Some of the media have specially qualified personnel who are assigned to cover the Court. All of the reporters, in my opinion, do a commendable job-sometimes even a superlative job-in the circumstances; but I think that all concerned would agree that if some way could be worked out to facilitate their task, the stories that appear in the press would be more informative-particularly in the sense that they could more adequately convey to the public the substance and tenor of the Court's opinions. (2) The broader problems, however, are, first, to increase public education with respect to the Constitution and the Court-a matter which is substantially outside of our province but as to which there have been some good developments in recent years, and second, to devise some system by which the media can arrive at a better understanding of the work of the Court and its opinions, and to convey that to the public. A group under the auspices of the Association of American Law Schools a few years ago adopted a program by which it provides analytical material to the press before the arguments of cases, in order to aid the media in obtaining a quick mastery of the issues to be presented and in understanding the decisions and opinions when handed down. It might be that the Association and representatives of the media which are interested in this service could explore its possible expansion, perhaps into the post-decision phase. I should say that participation by Court personnel, other than the Justices, in this sort of service has been discussed from time to time, but it involves additional and significant problems of propriety and procedure. (3) It has been suggested that means should be found of preparing statistical and other information about the Court's work in a form which would be usable by the media and informative to the public. For example, the bulk of the Court's work is concerned with cases which are handled at the level of petitions for certiorari and jurisdictional statements. This work is substantially unavailable to the public for examination and criticism because of its vast volume. It has been suggested that statistical analyses, tabulations, and other methods of presentation might be worked out which would make this information available to the media and the public. For example, you will recall my reference to the fact that between 92 and 93 per cent of all the criminal cases which were presented to the Court during its last term were either affirmed or allowed to stand. This type of information is not presently assembled by the Court as a routine matter nor is it readily available to the public. (4) Some members of the bar of this Court have discussed from time to time the desirability of forming an organization of practitioners before this Court. It may be that this idea, if realized in fact, would assist in accomplishing the purpose under discussion. If such an organization were formed, it would of course be entirely on a private basis, separate and independent from the Court itself. There are many examples of specialized bar associations which have functioned extremely well and with benefit to the public and the profession. (5) I am sure that other problems and possibilities exist which can be fruitfully explored, including-as an example-the special question of television and radio reporting of Court decisions. I should hope that the cooperative effort of all concerned would open many avenues for achieving the desired result. Mr. Chairman, permit me to say that the hearings before your Committee have impressed upon me anew the acute interest and concern that exist with respect to the work of this Court. While there are many aspects of the functioning of a court that must necessarily be carried on in privacy in order to encourage the freest exchange of views, I believe that it is our duty constantly to seek means for exposing to the public as fully and realistically as possible the aspects of this Court's work which are of necessary and proper concern to the public. I repeat that the continuation of the effort to develop ways and means of accomplishing this result is not within the power or responsibility of any single justice or of the Chief Justice alone. It is the function and prerogative of the entire Court, and it is also a task and a responsibility in which the Bar, the teaching profession and the media all share. I appreciate your kindness and your courtesy and I submit this communication for the record if you deem appropriate. Respectfully yours, The CHAIRMAN. Judge Thornberry? ABE FORTAS. STATEMENT OF HON. HOMER THORNBERRY, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES The CHAIRMAN. Senator Hart? Senator HART. I just welcome Judge Thornberry back, and hope we will be able promptly to move on the nomination, which, of course, I indicated last week I certainly favor. I indicated the high regard Judge McCree holds his colleague in, and that is just about enough for me. Judge THORNBERRY. Thanks, Senator. The CHAIRMAN. Senator Scott? Senator SCOTT. I have nothing, Mr. Chairman. The CHAIRMAN. Gentlemen, we are going to have several rollcall votes, and we cannot get attendance of the committee. I think it proper I hate to ask you to stay over until Monday, but I think it proper that you do that. Now, when the hearings first started, the Liberty Lobby and another group had requested to testify. I asked them to wait because we could not take all of the out-of-town witnesses with those who live in Washington that day. I closed the hearings on yesterday without realizing my commitment to these two organizations. Now, we will also hear them on Monday. I judge that it won't take long to get through. Senator SCOTT. Mr. Chairman, I am glad to see Judge Thornberry here. He and I were associated together in the House Rules Committee for a number of years. I found him a very gracious, competent, amiable, and extremely fine legislator. I am told that he is equally excellent as a judge. He knows the climate of Washington, and now that the heat wave is broken, I hope the weekend will not be too difficult. Judge THORNBERRY. Thank you, S Senator. Senator HART. Mr. Chairman-do I understand, then, that the record on the Fortas nomination is not closed until after▬▬ The CHAIRMAN. Those two witnesses, whom I am committed to. I forgot it yesterday when I closed the hearings. Senator HART. In that event, Mr. Chairman, I would offer for that record a memorandum reviewing in some detail a large number of decisions in which Mr. Justice Fortas participated. I sensed that as the questioning of Justice Fortas proceeded, because of constitutional restraint under which he found himself, he was not able to respond to a great many of the questions that bore on decided cases. I do not represent this memorandum in any wise as his attitude. toward those cases, but I asked the Justice Department if they could have some of their staff make some comment on a number of the cases in which he participated. That memorandum was given to me. I think it is helpful to all who want to see a balanced reflection of the quality of Justice Fortas' work on the Court. I offer it for the record. The CHAIRMAN. It will be admitted. (The document referred to was marked "Exhibit 47" and appears in the appendix.) The CHAIRMAN. Senator Ervin. Senator ERVIN. Judge, how long were you in Congress? Judge THORNBERRY. Fifteen years. Senator ERVIN. Did you practice any law during that time? Senator ERVIN. Did you study law during that time? Judge THORNBERRY. Well, sir, I imagine I did; yes, sir. Senator ERVIN. Did you study the decisions of the courts as distinguished from bills of Congress proposing to make new laws? Judge THORNBERRY. I did not understand you, Senator. Senator ERVIN. Did you study the decisions of the courts in addition to studying legislative proposals for making new laws? Judge THORNBERRY. Yes, sir. Senator ERVIN. You wrote the opinions for the three-judge district court in the case of United States of America v. the State of Texas and others, which is reported in 252 Federal, starting at page 234? Judge THORNBERRY. Yes, sir. Senator ERVIN. Wasn't that the first decision of any court, Federal or State, in this Nation which held that the imposition by a State of a poll tax as a qualification for voting was unconstitutional? Judge THORNBERRY. I think that is correct, Senator. Senator ERVIN. And you held it was unconstitutional under the due process clause of the 14th amendment, did you? Judge THORNBERRY. Senator, I guess I am at that stage where I have to say that that opinion speaks for itself. I would be happy to disenss it with you. That case was assigned to me for tentative writing of an opinion by my colleagues after we had heard the arguments, studied the briefs. I undertook to propose the opinion. It was submitted to my colleagues. They concurred. And I will have to say, sir, if I may, that it speaks for itself. Senator ERVIN. Well, you do agree with me in my view that Members of the U.S. Senate who are required to pass upon appointments to Supreme Court Justiceships have a perfect right, indeed an absolute duty, to ascertain the constitutional philosophy of any person nominated for that position? Judge THORNBERRY. I certainly do, sir. Senator ERVIN. But as I take it from your statement, that you are unwilling, because of your belief of either the limitations or the privileges of a judicial office, to explain your own constitutional philosophy as expounded by you in a decision you wrote. Judge THORNBERRY. I would not say judicial privilege, Senator. If I may say—I must say, Senator, that I believe that under the separation of powers, under the provisions of the Constitution, under my judicial oath, after once having expressed my views for a court, I ought not to try to amend it, take back, add to, or anything else. |