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NOMINATIONS OF ABE FORTAS AND

HOMER THORNBERRY

MONDAY, JULY 22, 1968

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess, at 10:15 a.m., in room 318 Old Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Ervin, Hart, Burdick, 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. Senator Ervin.

Senator ERVIN. Mr. Chairman, I would like to make a unanimous consent request at this time, and that is that the staff procure a complete copy of United States of America v. The State of Texas, 252 Federal Supplement, at page-beginning at page 2-34, and put it in the record at this point.

The CHAIRMAN. It will be admitted.

(The material referred to for inclusion in the record was marked "Exhibit 49" and appears in the appendix.)

STATEMENT OF HON. HOMER THORNBERRY, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES Resumed

Senator ERVIN. Judge, I asked you yesterday if you did not agree with me that the imposition of poll taxes as a prerequisite to voting was considered to be constitutional prior to your decision in the Texas poll tax case.

Judge THORNBERRY. Yes, sir; you asked me that, and I answered. Senator ERVIN. You answered in the affirmative.

Judge THORNBERRY. Yes, sir.

Senator ERVIN. Mr. Chairman, I would like to read this which corroborates the judge. 18 American Jurisprudence, Subject: "Elections," section 72, starting on page 226.

The state in its constitution or the legislature, if its powers in this respect have not been restricted by fundamental law, may require the payment of taxes as a condition to the right to vote.

That is sustained by all of the cases cited, which are multitudinousabout as thick as the leaves in the brooks of Vallhombrosa. And among

the multitude of cases sustained is one of Friescleben v. Shallcross Delaware case, reported in 2 Houston 1, 19 Atlanta, 576, 8 LRA 337.

Contribution to the support of the government may be made a condition of the privilege of voting. This idea was early prevalent in our scheme of government, and only those who paid taxes, that is only those who helped to support the government, could vote. Those who had real estate or other property were rated upon it, and those who had none were assessed upon the poll.

Now I would like to read from your opinion in the case of United States v. Texas at page 255:

The State of Texas contends that the 1937 Supreme Court case, Breedlove v. Suttles, 1937, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252, controls the questions raised in this suit. The only issues, however, discussed by the Court in that case were whether the Georgia poll tax violated the equal protection clause, since it applied only to persons between the ages of 21 and 60 and to women who registered to vote; whether payment of the poll tax as a prerequisite of voting denied any privilege or immunity protected by the Fourteenth Amendment; and whether the poll tax requirements abridged the provisions of the Nineteenth Amendment. Although dicta may be found in the opinion supporting the validity of the poll tax as a prerequisite to voting, we do not believe that the holding in Breedlove applies to the issues raised here or that the dicta, in the light of more recent Supreme Court pronouncements concerning the right to vote (see e. g., Wesberry v. Sanders, supra; Reynolds v. Sims, supra), should guide our decision.

Before I continue with questions I will read you a sentence from the Breedlove case. It was by a unanimous count, something which very rarely happens nowadays in the Supreme Court. It used to happen very frequently.

Breedlove v. Suttles is reported in 302 U.S. 277. I will read this from page 283:

The payment of poll taxes as a prerequisite to voting is a familiar and reasonable regulation, long enforced in many states, and for more than a century in Georgia.

Now, wouldn't you read that and say that Breedlove v. Suttles held that a State poll tax as a prerequisite for voting is within reasonable regulation of the Constitution?

Judge THORNBERRY. You read that statement, Senator, and it speaks for itself. I endeavored to meet the issue in the opinion, Senator. Senator ERVIN. Let us read this, and see how you reconcile this with what you said in the opinion.

I will read from page 279:

The appellant contends that the privilege of voting for federal officials is one to which he is entitled unrestricted by tax unreasonably imposed through state invasion of his rights as a citizen of the United States. As such citizen, he is entitled to participate in the choice of electors for the President and the Vice President of the United States, and of Senators and Representatives in Congress, and no state may exercise its taxing power so as to destroy this privilege. If the tax imposed by Georgia were increased to a high degree as it can be, if valid, it could be used to reduce the percentage of voters in the population to even less than 8 percent as at present, or to destroy the franchise altogether.

Now

Whatever property and other economic restrictions on the franchise may have been upheld in the earlier periods of our history, the admission today that a state has the power to prevent its poor inhabitants from participating in the choice of federal officials would be totally contrary to the contemporary spirit of American institutions, and inconsistent with the purposes which are announced in the preamble of the United States Constitution.

Now, it appears a little later in the opinion that they also attacked the poll tax in the Breedlove case as a prerequisite for voting in State elections in Georgia.

Now, isn't that last thing, that this poll tax would be totally contrary to the contemporary spirit of American institutions and inconsistent with the purposes announced in the preamble to the U.S. Constitution-isn't that broad enough to assert it was unconstitutional on all grounds, including not only the Constitution, but its preamble?

Senator ERVIN. Well, now--as a lawyer, the only thing I can draw from your opinion on the Breedlove case is that you hold that the Breedlove case did not decide the question-although the Supreme Court expressly said it did. You base your conclusion that it did not decide the case-although that was the only point before it—because the plaintiffs may have alleged in the complaint not only the facts constituting their cause of action, but also drawing certain conclusions of law, and that they insisted particularly on the argument that it violated the equal protection clause of the 14th amendment, and that it violated the 19th amendment.

I will go away from that case, but isn't it true that the pleadings of a party, the position of a party, the view of the party in its pleadings is to set out the facts constituting its claim. And although we lawyers usually put some conclusions of law in it, the conclusions of law have no proper place in a pleading. Isn't that true?

Judge THORNBERRY. Ordinarily we say that; yes.

Senator ERVIN. Well, in the Breedlove case, didn't the plaintiff set out the facts constituting their claim, instead of setting out the law? Judge THORNBERRY. They may have.

Senator ERVIN. And yet you hold the Breedlove case has no application simply because they did not pass on the claim that the poll tax in Georgia was invalidated by the due process clause of the 14th amendment. Is not that the sole basis of that?

Judge THORNBERRY. Senator Ervin, you read the opinion, you read the opinion very carefully, and you are entitled to draw your conclusions from it.

Senator ERVIN. I am trying to draw your conclusions.

Judge THORNBERRY. I know you are, sir. As I tried to state the other day, and I do this in all deference, Senator, perhaps you know, nobody likes to be disagreeable, and certainly I am one of the least that does. But the opinion is the opinion of the Court, and I have to stand on it, and I will.

Senator ERVIN. Well, when the question confronts the Senate committee, as to whether or not they should confirm you, and they have got to judge that on the basis of your actions in the past, I think you would render a service not only to me but to the Senate and to the country if you would be willing to explain what you meant by the decision.

Judge THORNBERRY. You may be right, Senator. But I stand on the opinion.

Senator ERVIN. It was said here the other day by one of my fellow Senators that the courts did not question the votes of Senators, which of course was not absolutely factual, because I have found they question our votes very frequently. They do it every time an act of Con

gress comes before them. And I have noticed whenever an act of Congress relating to Communists comes before them, the majority of them always find we voted unconstitutionally. So they question our votes. But that is beside the point so far as you are concerned.

The CHAIRMAN. Let me ask a question.

Judge, how long were you district judge?

Judge THORNBERRY. A year and a half.

The CHAIRMAN. I want to ask you a question in all seriousness. Did you permit any witnesses on the stand to refuse to answer questions as you have refused to answer them in this hearing?

Judge THORNBERRY. I don't recall-that the occasion ever arose, Senator. But I expect you are right.

The CHAIRMAN. You know I am right. Now, I think, in all candor, that a Member of the Senate cannot try you out as to how you are going to decide a case. He cannot-he should not put you in a position as to how you would decide a case. But I think that is the extent of it. And I am certain that Senator Ervin has got a right to ask you the questions and I think you should answer them, about decisions that you have made. After all, we have a responsibility. And this argument of separation of powers just does not do, because the Supreme Court has constantly gone into the powers of the Executive and the Congress. Senator ERVIN. A good case can be made for the proposition that judicial nominees ought to answer questions about their past judicial labors when the question before the committee is whether it is going to permit them to go to a greater judicial position. The refusal of nominees for judicial posts to discuss former opinions in which they participated has virtually created a new right not found in the Constitution, which might well be designated as the judicial appointee's right to refrain from self-incrimination.

I want to read something on this point that has some appeal to me. It is a North Carolina newspaper and was written by a very fine editor, Jay Huksins. It is entitled "Advice and Consent.

Television gliberals and their counterparts in the press are doing their best to give Senator Sam J. Ervin, Jr., the Goldwater treatment for having the audacity to question the qualifications of Abe Fortas to sit as Chief Justice of the United States.

And Justice Fortas, like Thurgood Marshall before him, has taken refuge behind the theory of the separation of powers in refusing to answer questions touching upon his understanding of the role of the Court in interpreting and applying the Constitution.

But from some of the admissions he made before the Senate Judiciary Committee, he has not always been too careful to observe this separation of powers in practice.

He admitted having consulted with President Johnson on a number of high policy matters, such as sending troops into Detroit, Vietnam war decisions and the best approach to riot control in the big cities of the Nation.

Thus, Justice Fortas wants to use the separation of powers argument as a one-way street. It is a convenient dodge when Senators, who are charged under the Advise and Consent Clause of the Constitution with approving his appointment as Chief Justice, seek to discover his legal philosophy. But it is quite another thing when he helps to determine Executive policy, such as riot control, which might later have to be settled before the Court on which he sits.

If we were a member of the United State Senate we would automatically vote against the confirmation of any nominee to the Supreme Court who declined to discuss, freely and openly, his philosophy of the role of the Court in the Republic. These are crucial points. Justice Marshall refused to say what he thinks

certain constitutional provisions mean, and Justice Fortas said only recently that "the exact meaning of the words of the Constitution has not yet been fixed." If we are to continue to pack the Court with unknown quantities, with men whose future course cannot reasonably be anticipated from statements they are willing to make publicly, then this compact between the people and their government, the Constitution and its amendments, can be made to say anything five men on the Court want to say at any given time.

So we hope Senator Ervin and his associates on the Judiciary Committee continue to hammer away at all nominees to the Supreme Court. Indeed, we hope that they become a little more selective in the individuals they are willing to confirm.

As distinguished a commentator as the Chief Justice of the Pennsylvania Supreme Court said no later than July 8-"let us face it, a dozen recent revolutionary decisions by a majority of the Supreme Court of the United States in favor of murderers, robbers, rapists and other dangerous criminals, which astonish and dismay countless law-abiding citizens who look to our courts for protection and help, and the mollycoddling of law-breakers and dangerous criminals by many judges-each and all of these are worrying and frightening millions of law-abiding citizens and are literally jeopardizing the future welfare of our country. Let us stop kidding the American people. It is too often forgotten that crime is increasing six times more rapidly than our population. This deluge of violence, this flouting and defiance of law and this crime wave cannot be eliminated by pious platitudes and by governmental promises of millions and millions of dollars. The recent decisions of a majority of the Supreme Court of the United States, which shackle police and make it terrifically difficult to protect society from crime and criminals are, I repeat, among the principal reasons for the turmoil and near revolutionary conditions which prevail in our country, and especially in Washington."

It is time somebody started asking questions about how the Court got that way, for pretty soon somebody is going to have to come up with some answers.

I realize you did not participate in those decisions of the Supreme Court. But do you think that the words of the fifth amendment "No person shall be compelled in any criminal case to be a witness against himself" have any possible application to volnutary confessions made to a police officer having the confessor in custody?

Judge THORNBERRY. Senator, you ask me to comment now on some future decision that I may have to make-if you should consent to my appointment-on the Court on which I am sitting if I am not confirmed as to an interpretation of the Miranda case.

Senator ERVIN. Now, that is a past decision of the Supreme Court. I am asking you about the constitutional philosophy on which it is based in your opinion.

Judge THORNBERRY. Well, you would have me comment on what the Supreme Court said about it, Senator Ervin.

Senator ERVIN. Well, is there any place where you would look to find out what the Constitution means than the opinions of the Supreme Court?

Judge THORNBERRY. I did not understand that question, Senator. Senator ERVIN. Well, is there any better way to test a man's constitutional philosophy than by asking about the opinions of the Court? Do you know any better way? I don't know of any other way to do it. Judge THORNBERRY. Senator, all I can say is that I cannot answer that question. You ask me to comment upon something the Supreme Court has decided, and with which the court of which I am a member is confronted every time it sits.

Senator ERVIN. Well, due to the vast extent of the jurisdiction which it has manifested in recent years, isn't it possible that the Court will have to pass on about everything that happens in the United States?

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