Page 34. Supreme Court decision, 1966, Harper v. Virginia Board of Elections_ 855 879 907 938 38. Address by Hon. Sam J. Ervin, "The Role of the Supreme Court as the Interpreter of the Constitution," May 6, 1966 39. Address by Prof. Phillip B. Kurland, University of Chicago Law School, "The Court of the Union or Julius Caesar Revised," reprinted from the Congressional Record, August 10, 1964. 980 986 40. Article by David Lawrence, "Famous Judge Rebukes Supreme Court," U.S. News & World Report, March 7, 1958__ 992 41. Article, "How U.S. Judges Feel About the Supreme Court," U.S. News & World Report, October 24, 1958. 994 42. Supreme Court decision, 1967, Warden, Maryland Penitentiary v. Hayden 997 43. Supreme Court decision, 1968, Sibron v. New York 44. Supreme Court decision, 1967, Terry v. Ohio.......... 1029 1072 45. Judicial restraint in the opinions of Mr. Justice Fortas.. 1110 46. Article by Marquis Childs, "Law Industry," Washington Post, May 22, 1946. 1114 47. Memorandum, re judicial performance of Mr. Justice Fortas, submitted by Hon. Philip A. Hart. 1115 1124 48. Supreme Court decision, 1937, Breedlove v. Suttles, Tax Collector__ 50. Decision, U.S. District Court, Western District of Texas, 1968, 51. Exhibits, submitted by James J. Clancy, National Organization, Citizens for Decent Literature.. 1132 1155 1159 52. Supreme Court decision, 1968, Joseph Lee Jones, v. Alfred H. Mayer Company 1182 53. Article, "Advise and Consent," from the Statesville, N.C., Landmark, submitted by Hon. Sam J. Ervin__ 1251 54. News story, "Fortas Condemns Columbia Protest," New York Times, May 24, 1968__ 1252 55. Address by Hon. Owen J. Roberts, former Associate Justice of the Supreme Court, "Now Is the Time: Fortifying the Supreme Court's Independence," American Bar Association Journal, January 1949. 56. "The Appointment of Justices to the U.S. Supreme Court," statement by Hon. Sam J. Ervin__ 1253 1258 57. Proposed constitutional amendment relating to the appointment of 1259 1259 59. Municipal licenses, city of San Diego, Reed Enterprises, Corinth Publi cations 60. Executive Report 7, 80th Congress, 1st session, 1947, Committee on 1264 1268 1279 ALPHABETICAL LIST OF CASES IN EXHIBITS Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Green v. United States, Mr. Justice Frankfurter's concurring opinion, exhibit 32_ 847 Harper v. Virginia Board of Elections, exhibit 34. 855 Page Jones v. Alfred H. Mayer Company, exhibit 52 1182 Katzenbach v. Morgan, exhibit 36 907 Keyishian v. Board of Regents, exhibit 27. 690 Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union Local 590, exhibit 23.. 486 Miranda v. Arizona, exhibit 26 580 National Labor Relations Board v. Allis-Chalmers Mfg. Co., exhibit 24. 492 University Committee to End the War in Vietnam v. Lester Gunn, exhibit 50. 1155 997 NOMINATIONS OF ABE FORTAS AND HOMER THORNBERRY THURSDAY, JULY 11, 1968 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to call, at 10:45 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland (presiding), McClellan, Bayh, Ervin, Dodd, Hart, Burdick, Smathers, Hruska, Fong, Scott, 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 this morning has been scheduled for the purpose of considering the nomination of Associate Justice Abe Fortas to be Chief Justice of the United States. Notice of the hearing was published in the Congressional Record July 1, 1968. By letter of July 8, 1968, the Standing Committee on Federal Judiciary of the American Bar Association states that "The committee. is of the view that Associate Justice Fortas is highly acceptable from the viewpoint of professional qualifications." I place in the record a letter from the American Bar Association, dated July 8, 1968; a personal letter from Mr. William P. Gossett, president-elect of the American Bar Association, dated July 2, 1968, endorsing the nominee; and a telegram from various law professors endorsing the nominee. (The letters and telegram referred to for incorporation in the record at this point follows:) Hon. JAMES O. EASTLAND, Chairman, U.S. Senate Judiciary Committee, AMERICAN BAR ASSOCIATION, DEAR SENATOR EASTLAND: Thank you for your telegram affording this Committee an opportunity to express an opinion or recommendation on the nomination of Honorable Abe Fortas to be Chief Justice of the Supreme Court of the United States. Our Committee is of the view that Associatie Justice Fortas is "highly acceptable from the viewpoint of professional qualifications". As the past distinguished chairman of our Committee, Robert W. Meserve, Esquire, of Boston, Massachusetts, wrote you under date of September 7, 1962 in respect of the report of the Committee concerning the qualifications of Honorable Arthur J. Goldberg to be an Associate Justice of the Supreme Court of the United States, we conceive it to be, in respect of the qualifications of a nominee to serve as a Justice or Chief Justice of the United States Supreme Court, our responsibility to express our opinion only on the question of professional qualification, which includes, of course, consideration of age and health, and of such matters as temperament, integrity, trial and other experience, education and demonstrated legal ability. It is our practice to express no opinion at any time with regard to any other consideration not related to such professional qualification which may properly be considered by the appointing or confirming authority. This position is, of course, not in any way confined to Associate Justice Fortas' case, nor is it in any respect stimulated by or related to his nomination. We are gratified that you and your distinguished Committee continue to ask for our opinion respecting the qualifications of nominees for appointment to lifetime federal judgeships and otherwise to permit us to assist your Committee in the discharge of its important constitutional function. With best wishes. ALBERT E. JENNER, Jr., Chairman. AMERICAN BAR ASSOCIATION, Hon. JAMES O. EASTLAND, Chairman, Hon. EVERETT M. DIRKSEN, Ranking Minority Member, DEAR SENATORS EASTLAND AND DIRKSEN: I am writing to express to you my personal opinion that Mr. Justice Abe Fortas is eminently qualified to be Chief Justice of the United States. That he has singular intellectual equipment has been amply demonstrated by scholarly achievements both in his academic life and in the legal profession. For several years he was a well regarded professor of law at Yale University Law School, of which he is a graduate with honors. His experience as lawyer has been as varied and extensive as it has been distinguished. Before his appointment as a Justice of the Court in 1965, he enjoyed a large independent law practice, being widely respected as a practicing lawyer; and he represented corporations and impoverished individuals with equal skill and devotion. Earlier he had acquired broad professional expertise as counsel for various government agencies, all of which he served with great distinction. Mr. Justice Fortas has had intensive experience in the work of the Supreme Court, both as judge and as an advocate, wholly sufficient, I think, to qualify him as Chief Justice. But I would remind you of a comment made by Mr. Justice Frankfurter in 1953: "I think that when the President of the United States comes to select someone to fill a vacancy on the Supreme Court, no single factor should be the starting point in his deliberation. He should not say, 'I want a man who has had experience as a judge,' or, 'I want a man who hasn't had experience as a judge.' I shall say more about this in a moment, but to me it is important that if you blot out the names of those who came to the Supreme Court without any prior judicial experience, you blot out, in my judgment, barring only two, the greatest names on its roster." This is, as you know, a time of great turbulence in our society. We are faced with a movement of social protest that questions the efficacy of the law as an instrument of social justice; indeed, it asserts that the law is being used as a device to frustrate the legitimate aspirations of those seeking to participate in the benefits of American society. At such a time we need a strong, enlightened Chief Justice, one of large vision and deep insight, whose conception of the role of the judicial process in our society would command the support of the country and especially of minority groups in the Supreme Court as an institution, one who could inspire their confidence in the law and our system of jurisprudence as a positive force in our society. Mr. Justice Fortas would, I think, be such a Chief Justice. He would, moreover, preside over the Court with great dignity and precision and would, I am sure, be a skillful moderator inside the conference room. As Chief Justice, he would have the confidence and support of the Bar as well as the Court. It is hardly necessary to remind you that Mr. Justice Fortas is a man of principle and of sterling character who is a well balanced, disciplined and responsible person in every respect. Indeed, his attributes as a man, quite aside from his credentials as a resourceful, tough minded legal craftsman, are likely, I think, to add stature and strength to the Court by his appointment as Chief Justice. If I were a member of the Judiciary Committee of the Senate, I would vote without reservation to recommend the confirmation of Mr. Justice Fortas as Chief Justice. The mobilization of his formidable resources as a man and a lawyer in the conduct of the business of the Court would, I am confident, serve the best interests of the people of the United States. Sincerely yours, WILLIAM T. GOSSETT. IOWA CITY, Iowa, July 10, 1968. SENATOR JAMES O. EASTLAND, Senate Office Building, Washington, D.C. DEAR SENATOR EASTLAND: As professors of law, we wish to express our grave concern over the opinion expressed in some quarters that, in view of the fact that President Johnson is not a candidate for reelection, his recent nominations of Justice Abe Fortas as Chief Justice of the United States and Judge Homer Thornberry as Associate Justice of the Supreme Court should not be entertained by the Senate. We find no warrant in constitutional law for the proposition that the concurrent authority and obligation of the President and Senate with respect to the appointment of high Federal officials are in any degree attenuated by a presidential decision not to seek a further term. Indeed, in our judgment the proposition contended for would subvert the basic constitutional plan, for it would substantially erode authority explicitly vested by the Constitution in the President and in the Senate. The Constitution contemplates, and the people in electing a President and Senators expect, that the highest executive and legislative officials of the land will exercise their full authority to govern throughout their terms of office. Acquiescence in the view that a President whose term is expiring should under no circumstances exercise his power to nominate would have deprived our Nation of the incomparable judicial service of John Marshall. And this example precisely demonstrates that impairment of the appointive power would be most fraught with hazard when the post is a judicial one. To lay it down as a general rule that in his last year in office a President should leave judicial posts vacant so that they may be filled by the next administration would frequently disrupt the orderly conduct of judicial business. In addition, such a general rule would have even more serious repercussions. It would imply acceptance of the premise that judges are accountable to the President who nominates and the Senators who advise and consent. Our entire constitutional structure is reared upon exactly the opposite premise. A judicial nominee is to be judged by the Senate on his merits. If confirmed and commissioned, he sits as a judge during good behavior, and he owes official allegiance not to other Government officers but to the Constitution and laws of the United States. Moreover, we submit that any use of the technique of filibuster to frustrate the appointive power would be a further, and equally unworthy, assault upon the integrity of the Presidency, the judiciary, and the Senate. We hope and trust that the Senate, prompted by the Judiciary Committee, will forthwith address itself to the only issues propertly before it-the fitness of these nominees for the posts in question. We respectfully request that this telegram be made a part of the Judiciary Committee's record with respect to the nominations of Justice Fortas and Judge Thornberry. Joint copies mailed to all members of the Judiciary Committee. Respectfully, Albany Law School: Samuel M. Hesson, dean, William Samore. University of Arizona: Charles E. Ares, dean; Robert Emmet Clark, John J. Irvin, Jr., Winton D. Woods, Jr. University of Arkansas: Ralph C. Barnhart, dean; Alberl M. Witte, Robert Ross Wright III. Boston College: Peter Donovan, Robert F. Drinan, dean; Mary Glendon, James L. Houghterling, Jr., Richard G. Huber, Sanford Katz, Francis J. Larkin, Joseph F. McCarthy, Francis J. Nicholson, S.J., Mario E. Occhialino, John D. Rillyn, Jr., Emil Sliwewski, Rames W. Smith, Richard S. Sullivan, William P. Willier. |