WE SHOULD RESUME DIPLOMATIC RELATIONS WITH CUBA - IT IS TO OUR ADVANTAGE TO DEAL DIRECTLY INSTEAD OF THROUGH THE SWISS EMBASSY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP70B00338R000300180011-4
• Release Decision: RIFPUB
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• Document Page Count: 4
• Document Creation Date: December 19, 2016
• Document Release Date: July 15, 2005
• Sequence Number: 11
• Publication Date: July 23, 1968
• Content Type: OPEN

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Senate
The Senate met at 1Z noon, and was
called to order by the Acting President
pro tempore.
The Chaplain, Rev. Frederick Brown
Harris, D.D., offered the following
prayer:
Eternal God, who art righteous in all
Thy ways and holy in all Thy works,
whose kingdom is an everlasting king-
dom, and whose dominion endureth
t:h.roughoiit all generations, and yet who
art nigh unto all them that call upon
Thee in truth. ?
All that Is highest and deepest in our
own lives finds its source in the living
fountain of Thine own being:
For every virtue we possess
And every victory won,
And every thought of holiness
TUESDAY, JULY 23, 1968
public building or public work of the District
of Columbia be accompanied by a perform-
ance bond protecting the District of Colum-
bia and by an additional bond for the protec-
tion of persons furnishing material and labor,
and for other purposes; and
S. 8458. An act to provide that the prosecu-
tion of the offenses of disorderly conduct and
lewd, Indecent, and obscene acts shall be
conducted in the name of and for the benefit
of the District of Coluptisfa. : "
13.122i,/An act to establish a register of
blind yyyyyy++++++brsons in the District of Columbia,
to pde for the mandatory reporting of in-
for tion concerning such persons, and for
other purposes; and
1220. An act to authorize projects grants
construction and modernization of hos-
pItals and other medical facilities in toe .Uis-
Speak to our hearts when courage fails tract of Columbia.
and men faint for fear and the love of The message further announced that
many grows cold and there is distress the House had agreed to the amendment
among the nations of the earth. J of the Senate to the bill (H.R. 25) to au-
temporal things unseen and eternal.
We ask it in the Redeemer's nam
Amen.
THE JOURNAL,
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that the reading of
the Journal of the proceedings of Mon-
day, July 22, 1968, be dispensed with.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
MESSAGES FROM THE PRESIDENT
Messages in writing from the President
of the United States submitting nomi-
nations were communicated to the
Senate by Mr. Leonard, one of his secre-
taries.
As in executive session,
The ACTING PRESIDENT p
thorize the Secretary of the Interior, in
cooperation with the States, to conduct
an inventory and study of the Nation's
estuaries and their natural resources,
and for other purposes.
The message also announced that the
House had agreed to the amendments of
the Senate to the bill (H.R. 10673) to
yaI'c Act, 1921, as amended.
The 'q age further announced that
the Housse-dls?agreed to the amend-
ments of the SenatO-?-ta_,the bill (H.R.
13781) to amend title II of e arme the unemployment trust fund to State ac-
Resources and Engineering Dove loplri&IIt counts may be used by the States for pay-
Act of 1966, asked a conference with the ent of expenses of administration;
Senate on the disagreeing votes of the .6816. An not for the relief of Lt.
two Houses thereon, and that Mr. LEN- Com William W. Gentry;
NON, Mr. ROGERS, of Florida, Mr. DOWN- H.R. 923. An act to authorize the Secre-
ING, Mr. M sfER, and Mr. PELLY were tary oft Interior to convey the Argos Na-
appointecl..frianagers on the part of the tional vas n hatchery in Indiana to tbo Izaak
House,0 the conference. Walton Lea uo;
making appropriations for public works other rposes;
for water and power resources develop- H. .16024. An act to extend for 2 years
ment, including certain civil functions t act of September 30, 1965, relating to
administered by the Department of Dc- gh-speed ground transportation, and for
fense, the Panama Canal, certa other purposes; and
agencies of the Department of + e H.R115340.,An act Lto,amend section 212
(For nominations this day received, see Delaware River Baglff'~C~ommission, the end of Senate proceedings.) terstate Commission on the Potomac
MESSAGE FROM THE HOUSE
A message from the House of Repre-
sentatives by Mr. Hackney, one of its
reading clerks, announced that the
House had passed, without amendment,
the following bills of the Senate:
S. 1582. An act to require that contracts
for construction, alteration, or repair of any
River Basin, the Tennessee Valley. Au-
thority, and the Water Resources Coun-
cil, and tire Atomic Energy Commission,
for the fiscal year ending June 30, 1969,
and for other purposes; agreed to the
conference asked by the Senate on the
disagreeing votes of the two Houses
thereon and that Mr. KIRWAN, Mr. EVINs
of Tennessee, Mr. BOLAND, Mr. WHITTEN,
Mr. MORRIS of New Mexico, Mr. MAHON,
Mr. RuoDEs of Arizona, Mr. DAVIS of Wis-
consin, Mr. RoBISON, and Mr. Bow
were appointed managers on the part of
the House at the conference.
The message further announced that
the House had disagreed to the amend-
ments of the Senate to the bill (H.R.
15794) to provide for United States
standards and a national inspection sys-
tem for grain, and for other purposes;
asked a conference with the Senate on
the disagreeing votes of the two Houses
thereon, and that Mr. PURCELL, Mr. Fo-
LEY, Mr. STUBBLEFIELD,Mr. BELCHER, and
Mr. TEAGUE of California were appointed
managers on the part of the House at
the conference.
The message also announced that the
House had passed the following bills, in
which it requested the concurrence of
the Senate:
H.R.15678. An act to increase the salaries
of judges of the District of Columbia Court
of General Sessions and the District of
Columbia Court of Appeals and the salary
of the judge of the District of Columbia Tax
Court; and
H.R.18248. An act to amend the act of
August 9, 1955, relating to certain common
carrier operations in the District of Colum-
bia.
ENROLLED BILLS SIGNED
The message further announced that
the Speaker had affixed his signature to
the following enrolled bills:
H.R.272. An act to extend the period dur-
ing which amounts transferred from the em-
HOUSE BILLS REFERRED OR
PLACED ON CALENDAR
The following bills were each read
twice by their titles and referred or placed
on calendar as indicated: .
H.R. 15878. An not to increase the salaries
of judges of the District of Columbia Court
of General Sessions and the District of Co-
lumbia Court of Appeals and the salary of
the judge of the District of Columbia Tax
Court; placed on the calendar; and
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CONGRESSIONAL RECORD -SENATE July 23, 1968
H.R. 18248. An act to amend the act of
August 9, 1955. relating to certain common
carrier operations in the District of Colum-
bia.
REPORT OF A COMMITTEE SUB-
MITTED DURING ADJOURNMENT
Under authority of the order of the
Senate of March 16, 1967, Mr. STENNIS,
from the Committee on Appropriations,
reported favorably, with amendments,
on July 22, 1968, the bill (H.R. 18188)
making appropriations for the Depart-
ment of Transportation for the fiscal
year ending June 30, 1969, and for other
purposes, which bill was placed on the
calendar.
LIMITATION ON STATEMENTS DUR-
ING TRANSACTION OF ROUTINE
MORNING BUSINESS
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that statements In
relation to the transaction of routine
morning business be limited to 3
minutes.
The ACTING PRESIDENT pro tem-
pore. Without objection, It is so ordered.
AMENDMENT OF THE AGRICUL-
TURAL ACT OF 1956
Mr. MONTOYA. Mr. President, I move
to reconsider the vote by which H.R.
10915 to amend section 202 of the Agri-
cultural Act of 1956 was passed yester-
day.
Mr. BYRD of West Virginia. I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
ORDER OF BUSINESS
Mr. BYRD of West Virginia. Mr. Pres-
ident, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tem-
pore. The clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. YOUNG of Ohio. Mr. President, I
ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
RELATIONS WITH CUBA-IT IS TO
OUR ADVANTAGE TO DEAL DI-
RECTLY INSTEAD OF THROUGH
THE SWISS EMBASSY
Mr. YOUNG of Ohio. Mr. President,
almost 10 years ago-January 1, 1959-
the corrupt Cuban dictator Batista fled
from Cuba following his reign as an ab-
solute monarch for a period of years
over our close neighbor to the south.
Since that time he has enjoyed a good
life in exile in Spain and on the French
Riviera drawing out from time to time
money from the huge sum he deposited
in Swiss bank accounts. Fidel Castro,
leading his guerrillas, immediately en-
tered Havana in triumph, and for almost
10 years he has ruled Cuba. Years have
elapsed, and it appears that Fidel Castro
is firmly entrenched and that he has the
steadfast support of the large majority
of the 7 million citizens of Cuba. I ex-
press regret over that fact, but It Is a
historic fact.
It has always been my judgment, Mr.
President, that a mistake was made by
President Eisenhower and our State De-
partment officials in closing the U.S. Em-
bassy in Havana and completely severing
diplomatic relations between the United
States and Cuba. I shall not question,
compare, or even dispute that the tyr-
anny of Castro's avid Communist rule of
Cuba may be worse than Batista's tyran-
nical and corrupt rule of the preceding
years. However, the facts are that the
people of Cuba-the workers in the su-
garcane fields and the poor living in the
slums of Santiago, Havana and other
cities-are better off and have somewhat
greater contentment than they did dur-
Ing the Batista regime. By breaking dip-
lomatic relations and closing our Em-
bassy, unfortunately, the United - States
deprived itself of a listening post in Cuba.
Throughout the past 10 years we have
been entirely dependent upon the Swiss
Embassy and its staff members.
I have advocated over the years and
advocate now that President Johnson
should no longer appear to be blind to
the fact that this little country, Cuba,
90 miles from Key West and within our
sphere of influence, has a viable govern-
ment-a Communist government which
we despise-but a government that ap-
parently is firmly established there. Our
neighbors, Canada and Mexico, have rec-
ognized the government of Fidel Castro.
They have friendly relations with that
government. The commerce and trade
they maintain has been profitable to
both countries. In 1966 Canada exported
24.5 million bushels of wheat" to Cuba
and received $49 million in payment. In
1967 Canadian wheat exports to Cuba
totaled 16.4 million bushels at a cost of
$32 million.
Cuba and the United States histori-
cally have enjoyed close economic rela-
tions with each other. Americans have
enjoyed visiting in Cuba and have
profited by those visits. Before the turn
of the century, Americans died in Cuba
to help that little island establish its
independence. It would seem that we
should renew those economic and com-
mercial relations that we have enjoyed
in the past and that we should again
take delight In enjoying cultural
relations.
It has been awkward to deal with the
government of President Dorticos of
Cuba through a third party, the Swiss
Embassy. That is not much of an open
window for us to know precisely what is
going on next door to us, although I
know we have some CIA operatives on
the spot. Officials of our Government
would do better and secure a more
accurate picture of what is going on in
Cuba were we to have an embassy in
Havana staffed with American officials.
What have we to lose by permitting a
Cuban Embassy and a Cuban Ambassa-
dor in Washington? Nothing, President
Dorticos has been seeking for several
years to have diplomatic relations re-
stored. In fact, the Cuban Government
has indicated a willingness to negotiate
to compensate U.B. citizens and firms
for their property seized by the Castro
regime provided that diplomatic rela-
tions will be resumed by our two
countries.
It may be that for selfish reasons cer-
tain business interests such as the beet
and sugar industries in our country may
oppose recognition of Cuba. It is certain
that witch hunr,ers and extremist luna-
tic righwing splinter groups such as the
John Birchites or "Birchsaps," the Lib-
erty Lobby, and other witch hunters
would express horror at ow' recognizing
the Government of Cuba.
Mr. I'residen;, it can hardly be said
that the United States has a mandate
from Almighty God to dictate to every
little country in the Western Hemisphere
what sort of government it must main-
tain. We have previously recognized the
militarists of the Argentine Republic
who in a midnight coup overthrew the
duly elected President. We have diplo-
matic _-elation;. with that fascist re-
gime. In Brazil the generals overthrew
the elected government in another coup.
We recognize and do business with that
facist government.
The present leaders of the Soviet
Union would apparently like to disen-
gage themselves from their relationship
with Castro's Cuba which is costing the
U.S.S.R. more than $1 million a day. To
show his gratitude, Castro has supported
the Chinese Communists in their bitter
and intense ideological battle with the
Russians and has been following the
Chinese brand of communism.
Castro continues to support efforts to
overthrow Latin American governments.
It is apparently a fact that the Cuban
Government has aided and abetted guer-
rillas seeking to overthrow the Govern-
ment of Bolivia and establish a Com-
munist government there. That resulted
in a disaster for the present Cuban lead-
ership. As a condition for recognition
and resumption of normal relations be-
tween the United States and Cuba we
should demand that the Cuban Govern-
ment cease and desist any further at-
tempts to subvert the government of any
Latin American country.
It beats me why we should be com-
placent while oc_r progressive neighbor to
the north, the . mmonwealth of Canada,
is profiting from commercial `relations
with Cuba. The United Kingdom,
Mexico and many other nations have
recognized the Government of Cuba now
in exisrence fcr almost 10 years. We
should resume diplomatic relations with
Cuba and obtain the same economic
benefits through trade and commerce as
our allies and our neighbors to the north
and south. Furthermore, 'we- are at a
disadvantage in dealing with Cuba
through a third party, the Swiss Em-
bassy. Cuba without doubt would be-
come a good customer of the United
States. Cubans need American products
including medicines and drugs, clothing,
beef, and many other nonstrategic prod-
ucts of American farms and factories.
We Americans, in tun, would no doubt
import Cuban products such as sugar,
rum, and fruits produced in the tropics,
simply to mention a few. Trade makes
for good neighbors. Good neighbors
make for peace.
Let us hope that our Presiden and
the Secretary of State will propose a
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CONGRESSIONAL RECORD - SENATE S 9191
diplomatic exchange and take the blind-
ers from our eyes which should have
been removed years ago; in fact, should
never have been placed there on January
:3, 1961, by President Eisenhower less
than a month before the end of his term
of office.
CORR'1CTION OF THE RECORD
Mr. COTTON. Mr. President, I ask
'unanimous consent that the permanent
:Record be corrected to show that on leg-
islative vote No. 220 the position of the
Senator from Illinois [Mr. PEecYl be
shown as "yea." The position of "nay" as
recorded is incorrect.
The ACTING PRESIDENT pro tem-
pore. The correction will be made.
COMMITTEE MEETINGS DURING
SENATE SESSION
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that the permanent
Subcommittee on Investigations of the
Committee on Government Operations
and the Committee on Post Office and
Civil Service be authorized to meet dur-
Ing the session of the Senate today.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
REPORT OF A COMMITTEE
The following report of a committee
was submitted:
By Mr. SPONG, from the Committee on the
District of Columbia, with an amendment.
H.R.. 16361. An act to provide additional
:revenue for the District of Columbia, and
for other purposes (Rcpt. No. 1448).
WHOLESOME POULTRY PRODUCTS
ACT-REPORT OF A COMMITTEE-
MINORITY VIEWS (S. REPT. NO.
1449)
Mr. JORDAN of North Carolina. Mr.
President, from the Committee on Agri-
culture and Forestry, I report favorably,
with an amendment, the bill (S. 2932)
to clarify and otherwise amend the Poul-
try Products Inspection Act, to provide
for cooperation with appropriate State
agencies with respect to State poultry
products inspection programs, and for
other purposes. I ask unanimous consent
that the report be printed, together with
minority views.
The ACTING PRESIDENT pro tem-
pore. The report will be received and the
bill will be placed on the calendar; and,
without objection, the report will be
printed, as requested by the Senator'from
North Carolina.
BILLS AND JOINT RESOLUTION
INTRODUCED
Bills and a joint resolution were intro-
duced, read the first time and, by unani-
mous consent, the second time, and re-
ferred as follows:
By Mr. MOSS (for himself, Mr. BuR-
DICK, Mr. CHuncH, Mr. METCALF, and
Mr. GEuEierNe) :
S. 3868. A bill to amend the Revised Or-
ganic Act of the Virgin Islands; and
S. 3809. A bill to amend the Organic Act
of Guam; to the Committee on Interior and
Insular Affairs.
(See the remarks of Mr. Moss when he In-
troduced the above bills, which appear under
a separate heading.)
By Mr. BIBLE:
S. 38170. A bill for the relief of Teodoro L.
Legarreta and Juan L. Uriaite; to the Com-
mittee on the Judiciary.
By Mr. HILL:
S, 38111. A bill to amend the Public Health
Service Act to support research and training
in diseases of digestive tract, including the
liver and pancreas, and diseases of nutri-
tion, and aid the States in the development
of community programs for the control of
these diseases, and for other purposes; to
thb Committee on Labor and Public Welfare.
By Mr. BREWSTER:
5.38'12. A bill for the relief of Fu Luen
Kwan; to the Committee on the Judiciary.
By Mr. THURMOND:
S. 38173. A bill for the relief of Orin Brew-
ington; to the Committee on the Judiciary,
By Mr. ERVIN:
S.J. Res. 194. Joint resolution proposing
an amendment to the Constitution relating
to the appointment of members of the Su-
preme Court of the United States; to the
Committee on the Judiciary.
(Soo the remarks of Mr. Eaves when he in-
troduced the above joint resolution, which
appear under a separate heading.)
S. 3868 AND S. 3869-INTRODUCTION
OF BILLS TO AMEND THE OR-
GL.NIC ACTS OF THE VIRGIN
ISLANDS AND GUAM
Mr. MOSS. Mr. President, I introduce
for myself, Mr. BURDICK, Mr. CHURCH,
Mr. GRUENING, and Mr. METCALF, two
bills to amend the Organic Acts of the
territories of Guam and the Virgin Is-
lands to make the colleges there land-
grant colleges eligible for the grants and
services that such Institutions receive.
This would mean that both the Col-
lege of the Virgin Islands and the Col-
lege of Guam would provide agricultural
and mechanical arts education, and agri-
cultural extension services.
In lieu of the donations of public land
or land script provided to other land-
grant colleges, both the colleges at Guam
and the Virgin Islands would receive an
appropriation of $3 million. Beyond that
they would receive only the same annual
proportionate share of funds and serv-
ices that other land-grant colleges xe-
ceive.
The ACTING PRESIDENT pro tem-
pore. The bills will be received and ap-
propriately referred.
The bills, introduced by Mr. Moss (for
himself and other Senators), were re-
ceived, read twice by their titles, and
referred to the Committee on Interior
and Insular Affairs, as follows:
S. 3868. A bill to amend the Revised Or.,
ganic Act of the Virgin Islands; and
S. 3869. A bill to amend the Organic Act
of Guam.
SENATE JOINT RESOLUTION NO.
194--INTRODUCTION OF JOINT
RESOLUTION PROPOSING AN
AMENDMENT TO THE CONSTITU-
TION RELATING TO THE APPOINT-
MENT OF JUSTICES TO THE U.S.
SUPREME COURT
Mr. ERVIN. Mr. President, during the
last few weeks the Senate has been called
upon to perform one of its most impor-
tant Constitutional functions-the con-
sideration of the President's nominations
to the Supreme Court.. Our deliberations
on the qualifications of these nominees
have, once again, focused attention on
what I feel is a primary weakness in the
Court. That is, the method for selecting
a new Justice.
Because of the present Court's easy
willingness to depart from precedents
and the plain meaning of the Constitu-
tion, I feel that today our federal system
stands in great jeopardy, and I believe we
must begin now to devise some means
which would ensure that only the best
qualified people serve on the Court. Rath-
er than continuing the present method
which often results in appointments for
political purposes and not for judicial
excellence, we should try to find some
way to complete the job begun' by the
Constitution of having a truly qualified
and independent judiciary.
Changing the methods of selecting the
members of out three branches of Gov-
ernment is not a novel idea. Both the ex-
ecutive and legislative branches have
undergone perfecting changes through
the years. For example, a person now
cannot be elected President more than
twice, and the Vice-Presidency is no
longer filled by the person having the
second largest number of votes in a
presidential election. Women are no
longer denied the right to vote and no
longer is the ballot denied to any person
on account of race. In the legislative
branch, Senators used to be elected by
the legislatures of the States. This is no
longer true.
But the method of selecting the Su-
preme Court Justices continues unchal-
lenged just as it was in 1791, and I feel,
Mr. President, that it is even more im-
portant to ensure careful selection of the
judiciary than the other two branches.
As Alexis de Tocqueville, one of the most
perceptive observers of American insti-
tutions and life, said:
The President, who exercises a limited
power, may err without causing grave mis-
chiof in the State. Congress may decide amiss
without destroying the union, because the
electoral body in which Congress originates
may cause it to retract Its decisions by
changing its members. But If the Supreme
Court Is ever composed of imprudent men
or bad citizens, the Union may be plunged
into anarchy or civil war.
This quotation takes on particular sig-
nificance at this time in our Nation's his-
tory when the judgment of just five men
has been allowed, with increasing fre-
quency, to seriously change the economic,
social, and political direction of our Na-
tion and to do so by overriding our writ-
ten Constitution and the prerogatives of
the States and our Federal Legislature.
Mr. President, the drafters of the Con-
stitution undertook to free Supreme
Court Justices from all personal, politi-
cal, and economic ambitions, fears, and
pressures which harass the occupants of
other public offices by stipulating that
they should hold office for life, and re-
ceive for their service a compensation
which no authority on earth could re-
duce. They undertook' to impose upon
each Supreme Court Justice a personal
obligation to interpret the Constitution
according to its true intent by requiring
him to make an affirmation to support
the Constitution. It causes me great pain
to observe that the actions of the present
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CONGRESSIONAL RECORD - SENATE July 28, 1968
Supreme Court lead to the inescapable
conclusion that the Founding Fathers
did not devise a method of selecting
Justices comparable to the trust they
placed in them.
Mr. President, I intend to offer a con-
stitutional amendment designed to In-
sure, as far as humanly possible, the ap-
pointment of the best qualified people to
the Supreme Court. In order to afford
greater protection to the judicial branch,
my amendment proposes a three-step
method of approving a Supreme Court
Justice.
The procedure is as follows:
First. Whenever a vacancy occurs in
the office of Chief Justice of the United
States or Associate Justice of the Su-
preme Court, the President shall con-
vene a conference which shall be at-
tended by the presiding judge of the
highest appellate court of each State and
the chief judge of each judicial circuit of
the United State. The senior chief judge
of a judicial circuit of the United States
shall preside at the conference. By ma-
jority vote the conference shall designate,
and the presiding officer of the confer-
ence shall transmit to the President in
writing, the names of five or more per-
sons deemed by the Conference to be
qualified to fill the vacancy.
Second. The President shall nominate
one of the persons so designated to fill
the vacancy.
Third. If the Senate advises and con-
sents to the appointment of such person,
such person shall be appointed to fill the
vacancy. If the Senate does not advise
and consent to the appointment of any
person so nominated, the President shall
nominate another person so designated
to fill the vacancy.
I believe that my proposed amend-
ment will make it as Certain as possible
that members of the Supreme Court will
not be chosen on the basis of personal
friendship with the President, political
service rendered to the political party In
power, or past association with politi-
cally potent groups. Undoubtedly, these
are worthwhile objectives.
Mr. President, I hope all Members of
the Senate will study the problem and
will support my proposed solution. At the
very least, however, I hope my proposed
amendment will serve as a catalyst to
inspire dialog on this vital and un-
finished constitutional business.
I ask unanimous consent that my pro-
posed joint resolution be appropriately
referred and that a copy of it be printed
at this point in the body of the RECORD.
I also ask unanimous consent that a
copy of an article by Prof. Philip B. Kur-
land, of the University of Chicago Law
School, which appeared in the May 1988
issue of Nation's Business, which points
out the weaknessess of the present
method of selecting Supreme Court
Justices, be printed at this point in the
RECORD.
The ACTING PRESIDENT pro tem-
pore. The joint resolution will be received
and appropriately referred; and, without
objection, the joint resolution and arti-
cle will be printed in the RECORD.
The joint resolution (S.J. Res. 194)
proposing an amendment to the Consti-
tution relating to the appointment of
members of the Supreme Court of the
United States, Introduced by Mr. ERVIN,
was received, read twice by its title, re-
ferred to the Committee on the Judiciary,
and ordered to be printed in the RECORD,
as follows:
S.J. Has. 194
Resolved by the Senate and House of Rep-
resentatives of the United States of America
in Congress assembled (two-thirds of each
House concurring therein). That the follow-
ing article is proposed as an amendment to
the Constitution of the United States, which
shall be valid to all Intents and purposes as
part of the Constitution when ratified by
the legislatures of three-fourths of the sev-
eral States:
"ARTICLE -
"SEerIoN 1. Whenever a vacancy occurs in
the office of Chief Justice of the United
States or Associate Justice of the Supreme
Court, the President shall convene a confer-
ence which shall be attended by the presid-
ing judge of the highest appellate court of
each state and the chief judge of each Judi-
cial circuit of the United States. The senior
chief judge of a judicial circuit of the
United States shall preside at the conference.
By majority vote the conference shall desig-
nate, and thepresiding oiilcer of the confer-
ence shall transmit to the President in-writ-
Ing, the names of five or more persons deemed
by the conference to be qualified to fill the
vacancy.
"Ssc. 2. The President shall nominate one
of the persons so designated to fill the
vacancy, If the Senate advises and consents
to the appointment of such person, such
person shall be appointed to fill the vacancy.
If the Senate does not advise and consent to
the appointmentof any person so nominated,
the President shall nominate another person
so designated to fill the vacancy.
"SEC. 3. The Congress shall have power to
carry this Article Into effect by appropriate
legislation.
"SEC. 4. This Article shall be inoperative
unless It shall have been ratified as an
amendment to the Constitution by the legis-
latures of three-fourths of the States within
seven years from the date of Its submission
to the States by the Congress."
The article, presented by Mr. ERVIN,
is as follows: COURT
WANTED. A NONPOLITICAL SUPRE14E
(NoTE.-Philip B. Kurland, author of this
article, is professor of constitutional law at
The University of Chicago and the author of
several books on the Supreme Court. He was
graduated from the Harvard Law School in
1944, where he edited the Harvard Law Re-
view. He has served as law clerk to Justice
Felix Frankfurter of the United States Su-
preme Court. Professor Kurland has been a
Department of Justice attorney and consult-
ant to the Economic Stabilization Agency.
Ho is now consultant to the Senate judiciary
subcommittee on separation of powers.
(In 1980, Professor Kurland established
The Supreme Court Review, an annual vol-
ume devoted to a critical analysts of the
Supreme Oourt, and has been editor since
its founding.)
Appointments to the U.B. Supreme Court
are among the most important tasks assigned
to the Presidency. And yet the appointments
are generally made with the same bows to
political expediency as the appointing of local
postmasters.
The fault lies not alone with the Presi-
dent, for the Senators who treat lower fed-
eral court appointments as personal preroga-
tives have been willing to leave appointments
to the Supreme Court as the personal pre-
rogative of the Chief Executive. Not since
Judge John Parker was rejected more than
three decades ago has the Senate blocked a
Presidential Supreme Court nomination. So
seldom do nonpolitical factors play a part
in judicial appointments that the surprise
of the matter is that we have a Court which
Is not worse than it La.
The President oui:ht to put aside politics
and patronage and seek out only the best
talents to staff the Court. Obviously, there
is something wrong with a method that al-
Iowa a Learned Hand to remain a judge on
the Court of Appeals, while appointments
are offered to a Fr..nk Murphy, to allow a
William H. Hastie to remain on a Court of
Appeals ba:.t give I. Thurgood Marshall a
High Court seat. The shame of the matter
has been that a long list could be made up
of the names of those best qualified to do the
task of a Supr$me Court Justice who were
never appointed because political considera-
tions took precedence.
There have been times when a President
acknowledged the a)propriate standards, as
when President Hoover appointed Benjamin
Cardozo to the Cou_-t. But these have been
rare.
It is somewhat strange that those who
so vociferously deno?Ince the advanced age of
Congressional committee chairmen are so
unconcerned about the septuagenarian and
octogenarian attainments of Justices of the
Supreme Court. Perhaps these critics do not
realize that Justice Hugo Black is 82; that
the Chief Justice is 77; William O. Douglas,
89: John Marshall Harlan, 88.
When the "Nine Old Men" reached similar
distinction, President Franklin Delano Roose-
velt proposed to Congress that a new Justice
be added to the Court for each of those over
the age of 70, on the ground that aged
judges are Incapable of performing their
jobs.
Roosevelt did no,, need to succeed with
his court-packing bill because time was on
his side. During his long tenure he ap-
pointed eight Justices to the Oourt, in
addition to elevating Harlan F. Stone to the
Chief Justice's chair. So, too Is it likely
that the next President, whoever he is, will
be called upon to make several appointments
to the high tribunal. It seems appropriate,
therefore, to look at the appointive process
now.
CH3OSING THE "RIGHT" MAN
History demonstrs,tes that Presidents have
not infrequently named persons to the Su-
preme Court because the appointees were
expected to express: judicial views sympa-
thetic to those of the President. This basis
for choice has resu:.ted in disappointments.
Joseph Story was appointed by President
James Madison to counteract John Mar-
shall's rampant federalism, Somehow Story's
Jeffersonian Republicanism disappeared as
soon as hc? donned his judicial robes, and
he quickly became Marshall's strongest and
most effect.ve ally.
President Theodore Roosevelt carefully
checked with Henry Cabot Lodge about what
he thought to be Oliver Wendell Holmes'
political predileotic?ns before putting :aim
on the Court. After one decision. Roosevelt
was purported to have remarked that he
could have put a banana on the Court with
more backbone than Holmes had shown.
President Wilson'3 fighting, liberal Attor-
ney General, Jame; C. McReynolds. turned
Into an archreactlonary on the Supreme
Court.
If one looks at recent history he, will see
that of the eight appointments by FDR,
four have generally been lined up on the
left: Black, Douglas, Murphy and Rutledge.
But the other four have been thought to be
on the right: Reed, Frankfurter, Byrnes and
Jackson.
Of Eisenhower's appointees, Warren and
Brennan would be classified as liberal, but
Harlan, Wnittaker and Stewart are usually
regarded as conservatives.
President Kennedy appointed the left-
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