adjourn. It had been my intention to serve until that particular session of Congress adjourned, so that the people in the district which I had been privileged to represent would not be without representation in the House. When it became apparent that that would not happen, I think it was within 2 months I wrote a letter to the Governor of Texas resigning as a Member of Congress, made it effective December 20. He immediately called an election to fill that vacancy, effective that date. And the issuance of the commission has nothing to do with that at all.

Senator ERVIN. Why wasn't the commission issued after your confirmation by the Senate.

Judge THORNBERRY. I am unable to answer that question.

Senator ERVIN. Well, I would have gotten a little restive if I had that kind of a situation.

Judge THORNBERRY. Well, sir, I had no doubt the President would tender the commission when I tendered my resignation, I made it effective.

Senator ERVIN. I was just struck this is not too much of a separation of powers. Here is a man who has been nominated and confirmed as a district judge, who was eligible to receive an immediate commission, and for some reason, passing strong, or very unusual, does not receive a commission for 5 months, and continues to function as a legislative officer while he has been selected and confirmed as a judicial officer. I do not see too much devotion to the doctrine of separation of powers during that 5-month period.

Judge THORNBERRY. Well, sir, you may be right, Senator. I thought that I exercised my responsibility as a Member of the Congress, and I had not taken a judicial oath, I tendered my resignation, without any thought that President Kennedy would withhold the commission. Of course, he did not issue the commission because, unfortunately, he was assassinated. But the commission was issued.

Senator ERVIN. Well, it certainly is refreshing to run into a man who at any time since about 1960 anticipated that Congress would adjourn on an early date. I have long since abandoned that hope. Thank you.

Judge THORNBERRY. Yes, sir; thank you.

The CHAIRMAN. Senator Thurmond.

Senator THURMOND. Thank you, Mr. Chairman. Judge Thornberry, I shall not ask you any questions. Chief Justice Warren has never submitted a firm resignation. The President of the United States has never made a firm acceptance. So in my opinion, there is no vacancy. I see no need to propound questions to a nominee where there is no vacancy.

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I would hope that the chairman of the committee would ask to come back later in the event that favorable action should be taken on Justice Fortas nomination for Chief Justice.

Thank you very much.

Judge THORNBERRY. Thank you.

The CHAIRMAN. Thank you, sir.

Judge THORNBERRY. Thank you.

The CHAIRMAN. Any questions?

Senator HART. Mr. Chairman, several letters that have been addressed either to you or to others of us on the committee

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The CHAIRMAN. Any questions for the nominee?

Senator HART. NO.

The CHAIRMAN. You may stand aside.

Judge THORNBERRY. Thank you, sir.

The CHAIRMAN. Thank you.

Senator YARBOROUGH. Mr. Chairman, may Judge Thornberry be excused at this time?

The CHAIRMAN. Yes.

Senator YARBOROUGH. And he will not be required to come back except on order of the Chair. He has been waiting in the city day after day to be called. Is he free to go back now?

The CHAIRMAN. I know he has. Now, if some Member of the Senate, of the committee wants to ask him some questions, I would hold it until plane time today, until this afternoon.

Senator YARBOROUGH. But after today, he would be free to return to his home?

The CHAIRMAN. Yes.

Senator YARBOROUGH. Thank you, Mr. Chairman. Thank you members of the committee.

Senator HART. Mr. Chairman, may I, in connection with the consideration of Judge Thornberry, read just a very brief portion of the letter from the chief judge of the Fifth Circuit?

The CHAIRMAN. That has been put in the record.

Senator HART. In it, the chief judge expresses the strong conviction that both as a man and a judge "Judge Thornberry would make a distinguished Associate Justice of the Supreme Court," from the background of experience and association with Judge Thornberry on that very busy, demanding circuit. I think it very hard to find a more reliable source for evaluation of a man's ability to go on the Court than one who had been serving daily with him and observing his manner, his writing style, his intellect, and his decency.

The CHAIRMAN. Mr. W. B. Hicks.

STATEMENT OF W. B. HICKS, JR., EXECUTIVE SECRETARY, LIBERTY LOBBY; ACCOMPANIED BY MICHAEL JAFFEE, GENERAL COUNSEL

Mr. HICKS. Mr. Chairman, I am W. B. Hicks, Jr., executive secretary of Liberty Lobby. With me today is Michael Jaffe, our general counsel. We are appearing to present the views of our nearly 200,000 supporters, including 15,000 members of our board of policy.

I would like to depart here from my prepared statement and make it clear to this committee we are not here today opposing the appointment of Judge Thornberry. We are here in connection with the appointment of Justice Fortas.

We oppose the nomination of Associate Justice Abe Fortas to the position of Chief Justice of the United States. The reasons for our opposition to his confirmation can be summarized as follows:

1. We are deeply concerned about the effects of the philosophy of "permissiveness" on the right of the people to live in safety-free from the fear of the ever-increasing wave of crime, licentiousness, and pornography that is today inundating the United States-a right that

is far more precious to man than any of the "rights" that have monopolized the attention of the Supreme Court and the Congress recently. We feel that the confirmation of Justice Fortas as Chief Justice will accelerate the ascension of this philosophy of permissiveness which he has publicly advocated.

2. Our second concern is our feeling that the position of the Supreme Court as an institution would be irreparably damaged. Liberty Lobby has the highest regard for the Supreme Court as an institution and as a vital, separate part of our system of government. We feel that the role of the Supreme Court in our governmental system is seriously threatened by the growing public cynicism concerning the independence and stature of the Supreme Court; and we feel that the independence and stature of the Supreme Court demand to be strengthened in the minds of the American people, rather than weakened, as we feel they will be if Justice Fortas is confirmed.

3. Our third objection is that the Congress of the United Statesthe ultimate repository of the power of the people to govern themselves-is itself threatened by a subordination of the judicial branch to the will of the executive. Liberty Lobby believes that the Congress should jealously guard the position of power assigned to it by the Constitution since the beginning of our Nation; and we think that this power should be reinforced and strengthened rather than weakened by what amounts to a merger of the other two branches of government in opposition to the Congress. We urge this committee and the Senate to begin the process of reasserting the power of the people by rejecting the selection of Mr. Fortas to be Chief Justice.

Is the Senate obliged to concur?

There are those who argue that the power of the President to select members of the Supreme Court should not be interfered with by the Senate, even though the power of the Senate to reject such selections is just as clearly spelled out in the Constitution as is the power of the President.

There are those who would attribute base motives to any who oppose this particular nomination. We say that no Senator should fear such arguments. In the first place, the Senate has already confirmed Justice Fortas on one occasion, to be an Associate Justice. If proof were needed that the Senate is willing to grant great latitutde to the President in such appointments, the previous act of confirmation should serve as such proof. Justice Fortas has been accepted as a member of the Court. It does not follow that he must be accepted as Chief Justice. There is no reason why this committee should deal with the nomination of a Chief Justice in the same manner in which it deals with the nomination of an Associate Justice of the Supreme Court. After all, the Chief Justice decides the direction of the Court. This is particularly true of a court that is preoccupied with the making of new law, such as the present Court. Supreme Court Justices have a norma! human desire to leave their mark on history. To accomplish this it is virtually necessary that they be permitted to author majority decisions of the Court. This is an honor accorded to very few men. More important it is an honor accorded only to those who are personally selected by the Chief Justice.

The CHAIRMAN. When you say the Chief Justice decides the direction of the Court, I know what you mean by the power to assign when in the majority who shall write the opinion. How else can he determine the direction of the Court?

Mr. HICKS. There are several ways, sir, in which-which follow in our statement here.

The CHAIRMAN. Yes. Proceed.

Mr. HICKS. Through the use of this power to dictate who shall and who shall not be allowed to write the new law that issues from the High Bench, a Chief Justice can exercise influence over his fellow members of the Court that is not available to the other Justices.

There are other powers exclusive to the Chief Justice, such as the power to extend time for oral argumentation before the Court, and the vast administrative power that he exercises in his capacity as chairman of the U.S. Judicial Conference, the semiannual gathering of the top Federal judges of the Nation's circuit and district courts. In this capacity, the Chief Justice can have a far-reaching effect on the administration of the justice throughout the Federal court system.

By adding these considerable powers to the already legendary abilities of Justice Fortas to sway the actions of others, the influence of his philosophy on the Court will be undeniably overwhelming. That is why it is important that this committee not overlook the beliefs and motivations so evident in the public record of Justice Fortas.

It may be well and good for this committee to overlook the political viewpoint of a candidate for the position of Associate Justice. We do not agree, but it can be argued that the positions taken in the past by such a candidate need not dictate his future performance on the Supreme Court.

However, the case of Justice Fortas is different. Not only is he noted for his exceptionally strong positions on issues that are vital to the interests of the American people and the future of our Nation; but, in addition, he has amply proved that his philosophical attitudes have not been changed by appointment to the Court in the slightest degree; and we may conclude, therefore, that they would not change by virtue of his being granted the overwhelming power given only to a Chief Justice.

We therefore say to this committee that if the Senate should concur in this nomination, any reasonable person must conclude that the Senate is placing a stamp of approval on the domination of the Supreme Court by the political and judicial philosophy of Abe Fortas, at a crucial moment in the history of the Court and the Nation.

What is the political and judicial philosophy of Abe Fortas?

It is said by the defenders of Justice Fortas that he is a "man of law." We believe that the meaning of this description is clear, that Justice Fortas personally believes that a law must be adhered to until it can be legally changed or repealed.

However, we note that Justice Fortas himself has qualified his belief in the law in writing a booklet entitled "Concerning Dissent and Civil Disobedience," published this year by the New American Library, and described by the publishers as being "in the tradition of the American revolutionary press."

In this booklet, on page 30, Justice Fortas proclaims that:

Revolutionists are entitled, of course, to the full benefit of constitutional protections for the advocacy of their program. They are even protected in the many types of action to bring about a fundamental change, such as the organization of associations and the solicitation of members and support at the polls.

As we read this statement, it can have only one meaning: It is lawful to advocate the violent violation of the law and even the overthrow of the Government by violent means, just as long as the advocate doesn't take part in the action that he stimulates.

Liberty Lobby submits that it is just this kind of permissive philosophy that has created the Rap Browns and Stokely Carmichaels of America today, and we further submit that no member of this committee or any Member of the Senate-would make such a statement as a part of his platform for reelection, because this kind of thinking is in direct opposition to the will and desires of the American people; and for good reason.

If there is any question concerning the nature of the "revolutionists" referred to by Justice Fortas-whether or not it is the advocacy of violent revolution which he believes is protected by the Constitution—we need only go to his long record of legal defense of violent revolutionaries to discover his true meaning; and perhaps it is best illustrated by a phrase he used as a lawyer in pleading the case of one Milton Friedman before the Supreme Court.

Friedman was appealing his discharge from a top level post on the War Manpower Commission, where he had been fired for disseminating Communist Party propaganda. Now, as we all know, the Communist Party is a foreign-controlled organization which has as its aim the violent overthrow of the Constitution and Government of the United States. Certainly, Justice Fortas was fully aware of this fact at the time.

In the event there should be any question concerning this state, I depart from the record to point out that Justice Fortas has known and has been intimately acquainted with and has worked with some of the top Communist agents in this Nation throughout his career in government and in private life. He was responsible, together with Älger Hiss, and Harry Dexter White, both of whom were Communist agents, for drafting the charter of the United Nations in San Francisco in 1945. In addition to that, earlier, in 1933 and 1934, he served in the Legal Division of the Agricultural Adjustment Administration. Now, this Legal Division contained Alger Hiss, Lee Pressman, John Abt, and Nathan Witt, all of whom were Communist agents.

In addition to that, he was an officer and a national committeeman of the International Juridical Association, which was a Communist Party front group, where Lee Pressman and Nathan Witt and others were also associated. In addition to that, he was affiliated with the National Lawyers Guild, a subversive organization, in the 1930's. In addition to that, he was a member of the Washington Committee for Democratic Action, a subversive organization on the Attorney General's list in the 1940's. In addition to that, he was a member of Harry Dexter White's policymaking circle under Roosevelt. Harry Dexter White, as you will recall, in the Treasury Department was responsible for making many of the policies of this Government, and he did this in connecton with Abe Fortas, Laughlin Currie, amongst others. In