real power, a power of advise and consent, which the Senate did not feel that it should

Senator GRIFFIN. Who was the majority leader of the Senate then? Senator FONG. At that time it was Lyndon Johnson. And Nils Tavaras was not confirmed, although his name was presented during 1960, which was the last year of President Eisenhower's term-although the term did not terminate until January 20, 1961.

Nils Tavaras, because the Senate wanted to wait until a new President was elected-so they waited, and, it was not until 2 years afterward that Hawaii received the services of a district judge.

So the District Court of Hawaii was vacant for 2 years, and in that time no less than 16 borrowed judges came to Hawaii to preside over the cases in Hawaii.

And when Senator Kennedy finally came into office, because Nils Tavaras had taken an interim appointment, he was one of three regions out of 115 judges which were appointed by President Kennedy who finally took office.

Now, to show you another—

Senator GRIFFIN. Before the Senator goes on from that point, there was a situation where there was not only a vacancy, but no judges at all?

Senator FONG. Yes.

Senator GRIFFIN. And I know of many other instances, including instances in my own State of Michigan where very able, qualified individuals were nominated during that period for judgeships, and there was just a complete block on confirmation as far the the Senate majority led by Lyndon Johnson was concerned.

Senator FONG. But in regard to your statement, there were seven unfilled circuit judges, judgeships, at the time that President Eisenhower went out of office, and there were 35 district court judges, altogether there were 42 unfilled judges.

The Judicial Council had recommended that there be 45 new judges-new judgeships-on August 27, 1969, Attorney General William P. Rogers, in an attempt to overcome Democratic resistance, urged Congress to create 45 new Federal judgeships to carry out the recommendations of the Judicial Conference. He said that he had been authorized by the President to tell congressional leaders

The CHAIRMAN. Just a minute. Policemen, would you close those doors.

Senator FONG. Attorney General William Rogers said he had been authorized by the President to tell congressional leaders that he would fill the new posts on a 50-50 basis, from the two political parties, no matter how many new judgeships the Congress eventually voted to create. This pledge of Attorney General Rogers was amplified in February 1960, when a House Judiciary subcommittee held hearings on the judgeship bills. Chairman Emanuel Celler indicated that Democratic opposition to the bills had decreased since Attorney General Rogers had made his 50-50 pledge. But he asked Deputy Attorney General Lawrence E. Walsh whether the Democratic appointments to be true Democrats, or Democrats across party lines.

Walsh assured Celler that by Democrats the administration did not mean Eisenhower Democrats.

But no final approval was given any of the judgeship bills when the Congress recessed for the national convention in 1960.

When the Congress reconvened in August, Democratic leaders, gambling that Democrats would win the presidential congressional elections in November 1960, and would thus be able to fill the new judgeships, decided not to bring any of the bills to the floor.

So S. 912 passed the Senate on May 3, 1961, after President Kennedy came into office. This bill was originally passed April 19, 1961. That bill created 10 circuit judges and 63 district judgeships. So with the 73 circuit judges and district judgeships which were created, plus the 42 which were unfilled, which when we add 73 and 42 we had 115 judgeships which were filled by President Kennedy, and which were sadly needed when President Eisenhower was in office. And out of the 115 filled by President Kennedy, only three were Republicans. So this shows how real the power of advise and consent is in the Senate.

Now, there was an allusion made to the question of postmasters. I am a member of the Civil Service and Post Office Committee.

During the Eisenhower administration he submitted quite a number of names for postmasterships to the committee. But the committee, again because of political purpose, held up the postmasterships until after President Kennedy was nominated and elected. And all these names were thrown out, and new appointments were made by the President.

So you can see, even in a question of postmasterships, the question of advise and consent in the hands of the Senate is very, very real. So I want you to add that to your research papers.

Now, Senator Griffin, you suggested that there seemed to be no separation of powers between Justice Fortas and the President. In fact, from the various elaboration of things that have happened, activities that have existed between the two, you almost seem to say that there is a conflict of interest.

Can you give us specific instances in which there has been such conflicts?

Senator GRIFFIN. Well, Senator, I believe that the purpose of my statement is to focus the committee's attention on the very real and widespread reports that have been made by responsible news reporting agencies about this relationship, and to relate these reports to the very important principle of separation of powers.

Now, I do not come before the committee testifying as one who personally is privy to what goes on between Mr. Johnson and Mr. Fortas. But I do not think this committee should fail to take notice of what is reported in the press. It is my suggestion that the committee has a responsibility to ascertain whether or not those reports are

accurate.

Now, I suggest that the committee ought not be satisfied with any perfunctory answers on a question so fundamental and basic as this. Without meaning any disrespect, I think that it justifies calling more than just the nominee himself to testify on this matter. There must be others who could testify with personal knowledge as to the things that I have called attention to.

For example, did Mr. Fortas write the speech that Mr. Johnson delivered in connection with the Detroit riots. I think that is a very

important question-not only to ask Mr. Fortas, but to explore fully with other witnesses.

Senator FONG. And you feel it is improper if he wrote it for him? Senator GRIFFIN. I certainly do.

Senator FONG. Do you feel that a Justice of the Supreme Court should not be placed in such a position, that he does things for the Executive so that when a matter comes before him, he will be biased in that respect?

Senator GRIFFIN. In most instances that we know about, where someone is elevated to the Bench and later disqualifies himself because of his involvement in some way in a matter that took place before he went on the Bench, his activity and reasons for disqualification are known. He may have been an official of some kind or worked in the Justice Department, as did Thurgood Marshall.

You have a situation here where it is alleged in the press that there is an undisclosed activity going on. Nobody knows the extent of this involvement.

Is this to be condoned by the committee, and if it is to be condoned by the committee with respect to one Justice, is it to be condoned by the committee with respect to any number of Justices? What happens to the doctrine of separation of powers if the committee does not look into this?

You have used the term conflict of interest. I am going to use the term propriety. I do not have to pose as an expert on this particular subject. The Supreme Court of the United States in 1793, as I pointed out in my statement, addressed itself to the question of whether even on an open basis the Supreme Court or Justices of the Supreme Court should provide advice to the President. And even on that basis, the Supreme Court said "No," under the doctrine of the separation of powers. The Court said this was not their function, but the function of the Attorney General.

Obviously, if Mr. Johnson wanted Abe Fortas to be his legal adviser. he should have appointed him to be Attorney General. That would have been the appropriate thing to do.

Senator FONG. Thank you.

The CHAIRMAN. Senator Griffin, Senator Thurmond has left a memorandum which he requested me to read and ask you two questions on his behalf:

Senator Griffin, I am going to read a passage from No. 76 of the Federalist Papers which was written by Alexander Hamilton:

To what purpose then require the cooperation of the Senate? I answer, that the necessity of their consurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended that a man who had himself the sole disposition of offices would be governed much more by his private inclinations and interests than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and. in the case of an elective magistrate, to his political existence, from betraying a

spirit of favoritism or an unbecoming pursuit of popularity to the observation of a body whose opinion would have great weight in forming that of the public could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personnally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Question No. 1: There has been much criticism concerning the opposition of many of us in the Senate, yourself included, to these nominations. Do you not think that Alexander Hamilton's reasoning very much applies to the circumstances we are facing today?

Senator GRIFFIN. The answer is "Yes."

The CHAIRMAN. Question No. 2: Senator Griffin, there has been considerable discussion in the news media and otherwise of pressure originating in the White House to compel the Senate to confirm this nomination. I should like to read to you a further passage from No. 76 of the Federalist Papers:

To this reasoning it has been objected that the President by the influence of the power of nomination, may secure the complaisance of the Senate to his view. *** But it is as little to be doubted that there is always a large proportion of the body which consists of independent and public-spirited men who have an influential weight in the councils of the Nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the Senate, yet the supposition that he could in general purchase the integrity of the whole body would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate to rest satisfied, not only that it will be impracticable to the executive to corrupt or seduce a majority of its members, but that the necessity of its cooperation in the business of appointments will be a considerable and salutary restraint upon the conduct of that magistrate.

Question: Senator Griffin, would you not agree that Alexander Hamilton showed great foresight in dealing with the problems surrounding Presidential appointments, particularly in view of the President's lame duck status, would serve as a valuable precedent to prevent further misuse of the President's power to nominate Supreme Court Justices?

Senator GRIFFIN. Mr. Chairman, my answer is "Yes."

The CHAIRMAN. Any further questions?

Thank you, Senator Griffin.

Judge Homer Thornberry?

Senator Yarborough, you may proceed, and try to be brief, Ralph.

STATEMENT OF HON. RALPH YARBOROUGH, A U.S. SENATOR FROM THE STATE OF TEXAS

Senator YARBOROUGH. Thank you, Mr. Chairman. You lay upon me a hard injunction when you say do not be too long when I am here to present a fellow Texan, and a man with outstanding judicial and legal qualifications of this nominee. And considering the length of time that I have known him.

I have known him, Mr. Chairman, for over a third of a century. I was a young district judge in Texas, the youngest in the State, in the

important question-not only to ask Mr. Fortas, but to explore fully with other witnesses.

Senator FONG. And you feel it is improper if he wrote it for him? Senator GRIFFIN. I certainly do.

Senator FONG. Do you feel that a Justice of the Supreme Court should not be placed in such a position, that he does things for the Executive so that when a matter comes before him, he will be biased in that respect?

Senator GRIFFIN. In most instances that we know about, where someone is elevated to the Bench and later disqualifies himself because of his involvement in some way in a matter that took place before he went on the Bench, his activity and reasons for disqualification are known. He may have been an official of some kind or worked in the Justice Department, as did Thurgood Marshall.

You have a situation here where it is alleged in the press that there is an undisclosed activity going on. Nobody knows the extent of this involvement.

Is this to be condoned by the committee, and if it is to be condoned by the committee with respect to one Justice, is it to be condoned by the committee with respect to any number of Justices? What happens to the doctrine of separation of powers if the committee does not look into this?

You have used the term conflict of interest. I am going to use the term propriety. I do not have to pose as an expert on this particular subject. The Supreme Court of the United States in 1793, as I pointed out in my statement, addressed itself to the question of whether even on an open basis the Supreme Court or Justices of the Supreme Court should provide advice to the President. And even on that basis, the Supreme Court said "No," under the doctrine of the separation of powers. The Court said this was not their function, but the function. of the Attorney General.

Obviously, if Mr. Johnson wanted Abe Fortas to be his legal adviser, he should have appointed him to be Attorney General. That would have been the appropriate thing to do.

Senator FONG. Thank you.

The CHAIRMAN. Senator Griffin, Senator Thurmond has left a memorandum which he requested me to read and ask you two questions on his behalf:

Senator Griffin, I am going to read a passage from No. 76 of the Federalist Papers which was written by Alexander Hamilton:

To what purpose then require the cooperation of the Senate? I answer, that the necessity of their consurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment. or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended that a man who had himself the sole disposition of offices would be governed much more by his private inclinations and interests than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a