I would be prepared by Tuesday to interrogate him in respect to his philosophy and concerning the Constitution, and in request to his past opinions. I am not prepared at this time to do so, further, in fairness to him, and in fairness to the country, and in the proper discharge of what I conceive my duties as a Senator. I think the most solemn duty that devolves upon a Senator is that of passing upon nomination of a person to be a Justice of the Supreme Court. I say this for the very simple reason that it is manifest that constitutional government cannot endure in this country unless Supreme Court Justices are able-both able and willing to interpret the Constitution according to its true intent. I do not believe that either our country or any human being within its borders has any security against tyranny on the one hand or anarchy on the other unless Presidents and Congresses and Supreme Court Justices are faithful to the precepts of the Constitution. So I am going to ask unanimous-consent that in case we reach the interrogation of Mr. Fortas this week, that he be requested to return next Tuesday and I hope at that time I can complete my study and be in a position to question him in respect to his philosophy of the Constitution, and also in respect to some of the judicial opinions he has participated in. Senator HART. Mr. Chairman

The CHAIRMAN. Senator Hart.

Senator HART. Mr. Chairman, I wonder if the unanimous-consent request is even necessary.

The CHAIRMAN. It is a matter that the Chair thinks should be discussed in executive session. Now, the committee voted to call the Attorney General today on the question of whether or not a vacancy exists. The Attorney General is here at the request of the Judiciary Committee. I will call an executive session when we are through with the testimony, and we will make a decision on Senator Ervin's request. Senator SCOTT. Mr. Chairman, we could discuss this further in executive session. But I would hope that if there is any question of delay, it could be decided on Monday rather than Tuesday, for reasons which are known to the chairman.

The CHAIRMAN. Yes, sir. It is a matter we will discuss in executive session.

Senator DODD. Mr. Chairman, I assume we will all have an opportunity to question the nominee.

The CHAIRMAN. Yes, sir.

Senator SMATHERS. Mr. Chairman, is it the intention of the Chair to question the Attorney General, and thereafter have an executive session with respect to the unanimous-consent request?

The CHAIRMAN. That is right. The matter of the Attorney General was requested by the committee.

Senator ERVIN. I would have no objection to hearing the Attorney General or anything else, as far as I am concerned, at this time, provided I have an opportunity after studying the matters that I mentioned a little further, to examine Mr. Fortas next week. But I do not want to waive my right. Under the rules of the committee I have a right to demand this matter go over in its entirety. I do not want to do that, I do not want to postpone it. But I would like to have unanimous consent

Senator DODD. The Chairman has said we will all have an opportunity.

Senator ERVIN. After I am thoroughly prepared or before I am thoroughly prepared?

Senator SMATHERS. This will be determined in the executive session. The CHAIRMAN. That is the judgment of the Chair. I do not think it is a matter that requires unanimous consent.

Senator ERVIN. Mr. Chairman, I have a stack of opinions I am reading and I would like to make it certain that I can ask questions next Tuesday.

Senator SMATHERS. After we have finished with the Attorney Gencral, it is not the intention of the committee to then go forward even though the distinguished Senator from North Carolina is himself not yet ready to ask questions of Justice Fortas, there are others who

are.

The CHAIRMAN. Well, we have two Senators-Senator Gore, are you going to present the nominee, or do you desire to testify?

Senator GORE. I will present the nominee, sir.

The CHAIRMAN. Well, we have a Senator who desires to testify, and we have five witnesses. I thought we would take them today, or we can get together this afternoon on Senator Ervin's request if we do not this morning.

Senator SMATHERS. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Attorney General.

STATEMENT OF HON. RAMSEY CLARK, ATTORNEY GENERAL OF THE UNITED STATES

Attorney General CLARK. Good morning, Mr. Chairman, members of the committee.

The CHAIRMAN. You were requested for your views on whether or not a vacancy exists for Chief Justice of the U.S. Supreme Court. Now, what are your views?

Attorney General CLARK. Mr. Chairman

The CHAIRMAN. Do you have a prepared statement?

Attorney General CLARK. Yes, I have a prepared statement, and a memorandum which has been filed with the committee. The statement is briefer, and if it is the pleasure of the committee, I will read it into the record.

Senator SMATHERS. Do you have copies of that?

Attorney General CLARK. Yes, I believe they have been distributed. Senator SMATHERS. Thank you.

Attorney General CLARK. From the earliest years of the Union, Presidents have nominated and the Senate has confirmed persons to high office where no vacancy existed at the time. Now these powers of the President and the Senate have been questioned.

The CHAIRMAN. I do not have a copy of your statement. Yes: I see it. Thank you.

Attorney General CLARK. Now these powers of the President and the Senate have been questioned.

The Constitution, the laws made in pursuance thereof, the decisions of courts construing both, the time-honored practice of virtually every President and the Senate then serving, and the basic needs of effective government demonstrate beyond question the power does exist.

Article II, section 2, clause 2 of the Constitution provides the President:

**** shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; ***"

Since ratification of the Constitution, Presidents have frequently and as a preferred method in the interest of continuity in government nominated persons to every position so defined in the Constitution while an incumbent served until his successor could relieve him of the duties of office. The Senate has not questioned its power to confirm.

Every sound principle of political science compels the conclusion that interruption of government is wrong and inimical to the public interest. It was never more so than in our time. Is the post of ambassador to a major power so insignificant that our system should inflict upon itself the necessity of periods perhaps months in duration without Presidential representation?

I might point out here that this year General Westmoreland was confirmed by the Senate many days before his predecessor, Harold Johnson, retired as Chief of Staff of the Army. That George Ball was confirmed as Ambassador to the United Nations many days before his predecessor, Arthur Goldberg, retired from that office.

And what of the Chief Justice of the United States? What theory of government would require vacancies in that high post, and for what purpose? Is justice of so little value that we force ourselves to wait longer than nature ordains? Senator Hruska is right, "There must always be a Chief Justice."

The Congress has provided methods by which justices and judges of Federal courts may elect to retire. By letter dated June 13, 1968, Chief Justice Warren notified the President:

Pursuant to the provisions of 28 U.S.C., section 371 (b), I hereby advise you of my intention to retire as Chief Justice of the United States effective at your pleasure.

The Chief Justice chose as a matter of right thus to retire. The statute creating this right provides:

The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice or judge who retires.

President Johnson, noting his deep regret, advised the Chief Justice by letter of June 26, 1968:

With your agreement, I will accept your decision to retire effective at such time as a successor is qualified.

By return telegram, the Chief Justice acknowledged the President's "letter of acceptance of my retirement," expressing his appreciation of the President's warm words.

The same day the President sent to the Senate the nomination of Associate Justice Abe Fortas to be Chief Justice of the United States, vice Chief Justice Warren, and of Judge Homer Thornberry to be Associate Justice of the Supreme Court, vice Justice Fortas.

A major part of all the actions of our Government through its history in both the executive and judicial branches have been under the authority of persons nominated and confirmed for offices still occupied

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by their predecessors, at the time of confirmation. Scores of judges have ruled on the rights of our citizens, affecting their life, liberty, and property, who were confirmed by the Senate for judicial position while their predecessors still held office. Will anyone be heard to say all of these acts are void?

The most recent, as an illustration, is the Honorable James McMillan, U.S. district judge for the western district of North Carolina. Judge Wilson Warlick of that district advised the President by letter of February 24, 1968, of his election to retire upon the appointment and qualification of his successor. With the strong recommendation of Senator Ervin, President Johnson nominated James McMillan to succeed Judge Warlick on April 25, 1968. The Senate duly confirmed and President Johnson appointed Mr. McMillan on June 7 of this year. Judge Warlick continued to serve as the active U.S. district judge until his successor qualified by taking the oaths of office on June 24, 1968.

This procedure has been clearly understood and practiced throughout our history as a nation. In Marbury v. Madison, 1 Cranch 137, 155– 157, in 1803 the constitutional appointment process was explained as consisting of three major steps:

The nomination by the President;

The senatorial advice and consent; and

The appointment by the President, of which the commission is merely the evidence.

Each is essential to assumption of authority, as is the final step to qualification, taking the oath of office.

The first volume of the Executive Journal of the Senate, which covers the years 1789 through 1805, contains a variety of instances in which the Senate confirmed nominees to positions where no vacancy existed at the time. Surely we would not repudiate so wise and beneficial a method in 1968.

The Supreme Court has on a number of occasions approved this interpretation of the Constitution so consistently followed by Presidents and the Senate. There is a series of cases, where the President has nominated and the Senate confirmed appointments to executive positions occupied by others, which hold the office to be automatically vacated upon the appointment of the sucessor. McElrath v. United States, 102 U.S. 426; Blake v. United States, 107 U.S. 227; Mullan v. United States, 140 U.S. 240.

Recently, in connection with a nomination elevating a judge to a higher court and a simultaneously submitted nomination designed to fill the vacancy caused by the elevation, the Senate confirmed the nomination to the lower court before that of the judge who was to be elevated. These were the nominations, dated October 6, 1966, of John Lewis Smith, Jr., chief judge of the District of Columbia court of general sessions, to the U.S. District Court for the District of Columbia, and of Harold H. Greene, vice John Lewis Smith. 112 Congressional Record 25524. The confirmation of Judge Greene occurred on October 18, and that of Judge Smith, whom he succeeded, on October 20. 112 Congressional Record 27397, 28086.

Another interesting illustration of the desired flexibility provided by this historic practice occurred in connection with the retirement of

Circuit Judge Barrett Prettyman. The original letter of retirement, dated December 14, 1961, merely stated:

I simply hereby retire from regular active service, retaining my office. President Kennedy accepted that decision on December 19, 1961. On December 26, 1961, however, the President expressed the hope to Judge Prettyman by letter that he would

continue in regular active service on the Court of Appeals for the District of Columbia until your successor assumes the duties of office.

On January 2, 1962, Judge Prettyman advised the President that he was "glad to comply with your preference in respect to the date upon which my retirement takes effect. My notice to you was purposely indefinite."

The history of the Supreme Court includes a number of examples in which Justices and a Chief Justice were nominated and confirmed for positions on the Court which were not as yet vacant.

Mr. Justice Grier submitted his resignation on December 15, 1869, to take effect on February 1, 1870. President Grant nominated Edwin M. Stanton in his place on December 20, 1869. Stanton was confirmed and appointed the same day, and his commission read to take effect on or after February 1, 1870. However, due to his death on December 24, Stanton never ascended to the bench.

Mr. Justice Shiras submitted his resignation to take effect on February 24, 1903. On February 19, President Theodore Roosevelt nominated First Circuit Judge Day to be Associate Justice of the Supreme Court, vice Mr. Justice Shiras; second, Solicitor General Richards to be Circuit Judge, vice Circuit Judge Day; and third, Assistant Attorney General Hoyt to be Solicitor General, vice Solicitor General Richards. All three nominations were confirmed on February 23, 1 day prior to the effective date of Justice Shiras' resignation.

On September 1, 1922, Associate Justice Clarke tendered his resignation as of September 18 of that year. On September 5, President Harding nominated George Sutherland to succeed Mr. Justice Clarke. The Senate confirmed his nomination the same day. The records of the Department of Justice indicate that Justice Sutherland's commission was dated September 5, 1922, "commencing September 18, 1922.”

On June 2, 1941, Chief Justice Hughes announced that he would retire from active service on July 1. On June 12, President Roosevelt nominated Associate Justice Stone to be Chief Justice, and Robert H. Jackson "to be an Associate Justice of the Supreme Court, in place of Harlan F. Stone, this day nominated to be Chief Justice of the United States." The Senate confirmed Chief Justice Stone's nomination on June 27, before the effective retirement date of Chief Justice Hughes, and Associate Justice Jackson's nomination on July 7.

Mr. Justice Gray notified President Theodore Roosevelt on July 9, 1902, that he had decided to avail himself of the right to resign at full pay, and added:

I should resign to take effect immediately, but for a doubt whether a resignation to take effect at a future day, or on the appointment of my successor, may be more agreeable to you.

In accepting the resignation on July 11, 1902, President Roosevelt stated:

If agreeable to you, I will ask that the resignation take effect on the appointment of your successor.