NO TIME FOR A SUMMIT CONFERENCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP70B00338R000300190047-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 16, 2016
• Document Release Date: July 25, 2005
• Sequence Number: 47
• Publication Date: September 9, 1968
• Content Type: OPEN

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Senate
The Senate met at 12 noon, and was
called to order by the President pro
tempore.
The Chaplain, Rev. Frederick Brown
Harris, D.D., offered the following
prayer:
God and Father of mankind, who
opens the gates of the morning, send us
forth with powers of mind and body to
front the duties of another day.
Thou art the reality behind all earth's
shadows. Seeing that we spend our days
as a tale that is told and that we pass
this way but once, keep us from unkind
words and from unkind silences, yet sure
and strong in the faith that is in us.
Enrich us with those durable satis-
factions of life so that the multiplying
years may not find us bankrupt in those
things .that matter most. May the rul-
ing passions and the deepest desires of
those who here are called to serve the
entire Nation be worthy for the facing
of this hour. _
Spirit of purity and grace,
Our weakness pitying see ;
O make our hearts Thy dwelling place,
And worthier Thee.
We ask it in the dear Redeemer's name.
Amen.
MONDAY, SEPTEMBER 9, 1968
EXECUTIVE MESSAGES REFERRED
As in executive session,
The PRESIDENT pro tempore laid be-
fore the Senate messages from the Pres-
ident of the United States submitting
sundry nominations, which were referd
to the Committee on Post Office and Civil
Service.
(For $ominations this day received,
see the end of mate proceedings.)
r
ROLLED BILL SIGNED
A message from the House of Repre-
se atives by Mr. Bartlett, one of its
re ding clerks, -announced that the
Sp ker had affixed his signature to the
enr ed bill (S. 449) to provide for the
popul election of the Governor of
Guam, d for other purposes, and it
was signe the President pro tempore.
NORTH ATLANTIl ?ASSEMBLY-AP-
POINTMENT BY T PF, ICE PRESI-
DENT 11v
The PRESIDENT pro tempav&. The
S. 3420. A bill to authorize a per capita
distribution of $550 from funds arising from
a judgment in favor of the Confederated
Tribes of the Colville Reservation (Rept. No.
1510).
By Mr. BURDICK, from the Committee on
Interior and Insular Affairs, with amend-
me
S. 240. A bill to provide for loans to In-
dian tribes and tribal corporations, and for
other purposes (Rept. No. 1508); and
S. 3072. A. bill to amend the act entitled
"An act to provide for the rehabilitation of
Guam, and for other purposes," approved
November 4, 1963 (Rept. No. 1509):
By Mr. GRUENING, from the Committee
on Interior and Insular Affairs, without
amendment :
H.R.16880. An act to authorize the Sec-
retary of the Interior to consider a petition
for reinstatement of oil and gas leases
(BLM-A-068348 and BLM-A-068348 (0))
(Rept. No. 1511).
By Mr. McGOVERN, from the Committee
on Interior and Insular Affairs, without
amendment:
H.R.10911. An act to provide for prepara-
tion of a roll of persons of California Indian
descent and the distribution of certain
judgment funds (Rept. No. 1513);
H.R.11552. An act for the relief of certain
property owners in Tate County, Miss. (Rept.
No. 1514) ;
H.R. 11782. An act to authorize and direct
the Secretary of the Interior to accept al-
lotment relinquishments, approve a lieu al-
THE JOURNAL
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that the reading of
the Journal of the proceedings of Friday,
September 6, 1968, be dispensed with.
The PRESIDENT pro tempore. With-
out objection, it is so ordered.
WAIVER OF CALL OF THE
CALENDAR
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that the call of the
legislative calendar, under rule VIII, be
dispensed with.
The PRESIDENT pro tempore. With-
out objection, it is so ordered.
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 PRESIDENT pro tempore. With-
out objection, it is so ordered.
MESSAGES FROM THE PRESIDENT
Messages in writing from the Presi-
dent of the United States submitting
nominations were communicated to the
Senate by Mr. Leonard, one of his
secretaries.
the Senator from Mississippi [Mr. STEN-
,Nis], the Senator from Tennessee [Mr.
GORE], the Senator from Washington
[Mr. JACKSON], the Senator from Ohio
[Mr. LAUSCHE], the Senator from Indi-
ana [Mr. BAYH], the Senator from Iowa
[Mr. HICKENLOOPER], the Senator from
South Dakota [Mr. MUNDT], the Senator
from New York [Mr. JAVITS], and the
Senator from Kentucky [Mr. COOPER] as
members to attend the North Atlantic
Assembly to be held in Brussels, Bel-
gium, from November 11 to 16, 1968; and
as alternates, the Senator from New
Hampshire [Mr. MCINTYRE], the Senator
from Maryland [TYDINCS], the Senator
from Virginia [Mr. SPONG], the Senator
from Nebraska [Mr. HRUSKA], and the
Senator from California [Mr. KUCHEL].
PETITION
The PRESIDENT pro ? tempore laid
before the Senate a petition, signed by
H.?Jenkins, and sundry other citizens of
the State of Kansas, praying for the
enactment of legislation to extend the
National Labor Relations Act to co?v
farmworkers, which was referred-the
Committee on Labor and Public Welfare.
REPORTS OF COMMITTEES
The following reports of committees
were submitted:
By Mr. JACKSON, from the Committee on
Interior and Insular Affairs, with an
amendment:
(K t. No. 1515);
H. .14205. An act to provide for the dis-
positi of funds appropriated to pay a
judgme t I. favor of the Creek Nation of
Indians in Indian Claims Commission
docket n bered 21, and for other purposes
(Rept. No.1 516);
H.R. 162. An act to provide for the dis-
position off nds appropriated to pay a judg-
ment in fa l of the Creek Nation of In-
dians in Ind an Claims Commission docket
numbered 274, and for other purposes (Rept.
H.R. 16402. An act to provide for the dis-
position of fu ds appropriated to pay a judg-
ment in favo of the Delaware Nation of In-
dians in Ind an Claims Commission docket
numbered 33, , and for other purposes (Rept.
By Mr. GOVERN, from the Committee
on Interio and Insular Affairs, with an
S. 3728/A bill to authorize the use of funds
arising ram a judgment in favor of the
Kowa,s omanche, and Apache Tribes of In-
dianVof Oklahoma, and for other purposes
(R t. No. 1512).
ment:
S. 2589. A bill to provide for the regulation
in the District of Columbia of retail install-
ment sales of consumer goods (other than
motor vehicles) and services, and for other
purposes (Rept. No. 1519).
BILLS INTRODUCED
Bills were introduced, read the first
time, and, by unanimous consent, the
second time, and referred as follows:
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S "454 CONGRESSIONAL RECORD - SENATE September 9, 1968
By Mr. SPARKMAN:
S. 4014. A bill to provide relief for Alley J.
Register; to the Committee on the Judiciary.
By Mr. HART (for Mr. BAY}i):
S. 4015. A bill for the relief of Christopher
Ralph Sales; to the Committee on the' Ju-
diciary.
By Mr. WILLIAMS of New Jersey:
S. 4016. A bill for the relief of Virgllio Ci-
bellis, Gelsimina Cibeilis, and Mauro Cibeilis;
to the Committee on the Judiciary.
EXTENSION OF RENEGOTIATION
ACT OF 1951-AMENDMENT
AMENDMENT NO. 942
Mr. CURTIS submitted an amend-
ment, intended to be proposed by him,
to the bill (H.R. 17324) to extend and
amend the Renegotiation Act of 1951,
which was ordered to lie on the table
and to be printed.
ENROLLED BILL PRESENTED
The Secretary of the Senate reported
that on today, September 9, 1968, he
presented to the President of the United
States the enrolled bill (S. 449) to pro-
vide for the popular election of the Gov-
errnnorof Guam, and for other purposes.
C, NO TIME FOR A SUMMIT
CONFERENCE
Mr. DODD. Mr. President, there have
been repeated reports that, despite the
Czechoslovak crisis, President Johnson
still hopes to be able to arrange a sum-
mit conference with Premier Kosygin at
an early date. These reports lack official
confirmation and it may well be that the
information on which they were based
was inaccurate.
No President has labored harder In
the cause of peace than President John-
son. He has gone the extra mile, and 10
times that, in seeking to achieve agree-
ments that would make the peace of the
world more secure.
If his efforts have failed, It is not be-
cause of any lack of commitment or
perseverance on his part.
The failure stems, rather, from the
fact that he has been seeking arrange-
ments with a foe who honors no agree-
ments, and peaceful coexistence with
forces that are fanatically committed to
the destruction of the free world.
If any further proof was needed, we
have it now in Czechoslovakia.
The failure also stems from another
source. It is obvious that the administra-
tion, in its recent policies, has been moti-
vated by the belief that there had been a
significant moderation in Soviet policy,
which was resulting in a growing detente
between our two countries. Who they are
I do not know, but It is clear that there
have been people around the President
who were able to win him over to this
belief. And this belief in a nonexistent
detente, as I have pointed out on many
occasions, has inevitably confused our
judgment and paralyzed our will to act.
I consider it a safe assumption that the
same advisers who sold the myth of the
detente to the President are now among
those who are urging him to seek a sum-
mit conference.
I am sure they are motivated by a
genuine, and understandable, concern
over the preservation of peace. But, in
my opinion, a summit conference at this
juncture would be a moral disaster that
could only lead to further political dis-
asters.
On this point, a recent comment of the
Times of London stated the matter more
cogently than any comment I have seen
In the American press.
Let me quote what the Times said:
At the present time to continue to talk
about seeking detente with the Soviet Union
as though nothing had happened is as im-
prudent as the continued attempts to seek
detente with the prewar dictatorswhile they
were actually in the midcourse of aggression.
It may be Impossible to deal effectively with
an aggressor, but It Is not necessary to pine
for friendship.
There may be exceptional circum-
stances under which a summit confer-
ence can serve a positive purpose; I do
not go as far as saying that summit con-
ferences are wrong under all circum-
stances. But the record shows that the
summit conferences that have taken
place to date have invariably wound up
serving the interests of the Communist
world. And this is so despite the fact
that the good faith of our leaders, in
entering into these conferences, was ap-
parent to all the world.
These conferences have always served
to enhance the prestige of the Commu-
nist leaders and to foster belief in the
myth of the detente or in the possibility
of a detente.
They have also contributed to the
weakening of the Western alliance by
recurrently sowing the fear that the
United States was about to enter into a
bilateral arrangement with the Soviet
Union.
And because of the exaggerated ex-
pectations they inevitably arouse, they
put our leaders under pressure to arrive
at some kind of agreement with the So-
viet leaders In the course of several days'
discussion. Conducting negotiations af-
fecting our national security and the se-
curity of the free world under this kind
of pressure violates all the rules of diplo-
macy. -
I have always had grave misgivings
about summit conferences for these rea-
sons.
Despite the good intentions of Presi-
dent Roosevelt and President Truman,
the Yalta, Teheran, and Potsdam con-
ferences turned out to be failures for the
free world.
Despite President Eisenhower's good
intentions, the Geneva Conference and
the invitation for Khrushchev to visit
this country, also turned out to be mis-
takes.
And despite President Johnson's over-
riding cammitment to the cause of peace,
the Glassboro Conference turned out to
be completely fruitless.
It is clear at this point that these con-
ferences only served the interest of the
Soviet Union.
A summit meeting at this juncture
would be an even greater mistake.
If the Soviets pull their forces out of
Czechoslovakia, a summit conference
might be in order, because such a pull
out would create the possibility of a
wider understanding in the interest of
world peace.
But now, instead of a summit confer-
ence, I believe that the appropriate re-
sponse to Sovie aggression in Czecho-
slovakia would be to convene an emer-
gency meeting of the North Atlantic
Treaty Organization, to consider what
measures must be taken to bolster the
defenses of Western Europe.
For the implications of the Czechoslo-
vak occupation ;o far beyond the fron-
tiers of Czechoslovakia. Bismarck once
said that whoever controls the Czech ter-
ritory of Bohemia controls Europe. And
this estimate of the strategic importance
of Bohemia-Moravia has been shared by
virtually every other strategist down
through the centuries.
The entire balance of power in Europe
has now been drastically altered by the
fact that a Soviet army, 500,000 strong,
stands on Czechoslovakia's frontiers with
Western Europe. It is for this reason that
the Governmen s of Austria and West
Germany are openly apprehensive over
the future.
The administration has indicated that
It shay seek to reassure our allies by pub-
licly, and in unmistakable terms, reaf-
firming our commitment to the defense
of Europe. But this reaffirmation will
have to be backed up by concrete meas-
ures if it is to reassure our allies. and
deter the Soviets.
Among other things, I believe we
should put our forces in Europe on an
"alert" basis, and that we should return
to West Germany, for participation in
prolonged maneuvers, the 34,000 men
who were recently withdrawn.
I believe we should also make an all-
out effort to achieve a rapprochement
with De Gaulle. Certainly, it is conceiv-
able that, on the heels of the June in-
surrection In France which led De Gaulle
to speak about "the menace of totali-
tarian communism," and now on the
heels of last month's event: in Czecho-
slovakia, the F_-ench President will be
willing to join in an effort to revive and
reinforce the Western alliance.
We should also mobilize all of our dip-
lomatic, political and economic resources
in an effort to induce the Soviets, in
their own interests as well as in the in-
terests of the peace of Europe, to with-
draw their forces from Czechoslovakia.
One of the first things we should do-
and this is a matter to which I have re-
ferred many times-is to impose an em-
bargo on the shipment of all industrial
and technological equipment to the
countries that participated in the in-
vasion of Czechoslovakia, and try to per-
suade the other countries of the free
world to join in parallel action.
I welcome the initiative the adminis-
tration has already taken in suspend-
Ing our cultural exchange programs
with the Communist countries involved
in the Invasion cf Czechoslovakia, and in
calling off a pending ceremonial flight
by Aeroflot officials, intended to mark
the inauguration of direct Moscow-New
York flights. But the imposition of eco-
nomic sanctions would carry a hundred
times as much weight with the Commu-
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September 9, 1968 CONGRESSIONAL RECORD - SENATE S 10455
nists governments because of their
desperate need for sophisticated tech-
nological equipment which they can only
obtain from the West.
These are the things we should be do-
ing, instead of talking about a summit
conference or about the revival of a
detente which never really existed.
This is the surest way of preserving
the peace in Europe.-
C E
AR NONPROLIFERATION
NU
TREATY
Mr. BYRD of Virginia. Mr. President,
I note that the distinguished majority
leader has indicated that the invasion of
Czechoslovakia by the Soviet Union
may preclude Senate consideration of
the treaty on nonproliferation of nuclear
weapons.
Certainly, the brutal action by the So-
viet Union shocked the world; hopefully,
it will cause many in our Government to
reappraise their thinking in regard to
appeasing the Soviets.
But, I would hope it would not pre-
vent Senate consideration of the non-
proliferation treaty, the purpose of which
is to prevent the spread of nuclear
weapons.
As strongly as I condemn the action
of the Soviet Union and its satellites
against Czechoslovakia, that action
serves to remind us that the Soviet Un-
ion has not forsaken its aggressive poli-
cies and that the risk of nuclear war is
still very much with us.
The threat posed by the possibility of
more nations, some under irresponsible
leadership, obtaining nuclear warmak-
Ing devices is so grave that every reason-
able precaution should be taken.
I speak as one who voted against the
Consular Treaty with the Soviet Union,
and I would do so today and for so long
as the Soviet Union continues to supply
North Vietnam.
I speak as one who, played a part in
defeating our President's determination
to use American tax dollars to build a
Flat automobile plant in the Soviet Un-
ion-and would do so again.
I speak as one who strongly opposes
the efforts of many high administration
officials to appease the Soviet Union, be-
lieving as I do that appeasements of
Communist dictators is as unfruitful and`
as futile as were efforts to appease Nazi
and Fascist dictators 30 years ago.
But, the nuclear nonproliferation
treaty does not appear to contain any of
these elements.
I have read the testimony taken by
the Committee on Foreign Relations, and
while I might change my mind as the
result of floor debate, the treaty appears
to be a sensible one.
It may not be too much to the liking
of some of our Western allies-and be-
cause of this we may wish to proceed
slowly-but the treaty does not appear
harmful to our own national interests
and it could prove helpful in, preventing
the spread of nuclear weapons.
I note that the distinguished senior
Senator from Tennessee [Mr. GORE] will
seek tomorrow to have the Committee oil
Foreign Relations report the treaty to
the Senate for its consideration.
I wish him well in this endeavor.
Mr. MANSFIELD. Mr. President, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. BYRD of West Virginia. Mr. Pres-
ident, I ask unanimous -consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
REGULATION OF MAILING OF MAS-
TER KEYS FOR MOTOR VEHICLE
IGNITION SWITCHES
Mr. BYRD of West Virginia. Mr. Presi-
dent, I ask the Chair to lay before the
Senate a message from the House of
Representatives on H.R. 14935.
The PRESIDING OFFICER laid be-
fore the Senate a message from the
House of Representatives announcing its
disagreement to the amendment of the
Senate to the bill (H.R. 14935) to amend
title 39, United States Code, to regulate
the mailing of master keys for motor ve-
hicle ignition switches, and for other
purposes, and requesting a conference
with the Senate on the disagreeing votes
of the two Houses thereon.
Mr. BYRD of West Virginia. I move
that the Senate insist upon its amend-
ment and agree to the request of the
House for a conference, and that the
Chair be authorized to appoint the con-
ferees on the part of the Senate.
The motion was agreed to; and the
Presiding Officer appointed Mr. MON-
RONEY, Mr. YARBOROUGH, Mr. RANDOLPH,
Mr. CARLSON, and Mr. FONG conferees on
the part of the Senate.
THE NOMINATION OF JUSTICE ABE
FORTAS FOR THE OFFICE OF
CHIEF JUSTICE OF THE UNITED
STATES
Mr. ERVIN. Mr. President, on August
9, 1968, the Washington Post printed a
letter which I had written to its editor-
concerning the nomination of Justice
Abe Fortas for the post of Chief Justice
of the United States. On August 15, 1968,
the Washington Post printed a letter
written by Mr. Thurman Arnold to its
editor which undertook to reply to my
letter. On August 23, 1968, I wrote a let-
ter to the editor of the Washington Post
asking for space to comment on Mr.
Thurman Arnold's reply to my statement
on the Fortas nomination.
I ask that these letters be printed at
this point in the body of the RECORD.
There being no objection, the letters
were ordered to be printed in the RECORD,
as follows:
[From .the Washington Post, Aug. 9, 19681
SENATOR ERVIN ON THE FORTAS HEARING
The Washington Post of August 2, con-
tained an editorial entitled "The Least Effec-
tive Branch," which described the members
of the Senate Judiciary Committee who be-
lieve that Associate Justice Fortas ought not
to be made Chief Justice of the United States
"as its nastiest and least respectable mem-
bers."
Since I am unable to fathom why a news-
paper of standing indulges in a verbal tan-
trum on its editorial page, I ignore the vitu-
peration except to observe that it shed no
light whatever on the only important issue,
i.e., whether Justice Fortas' nomination for
the post of Chief Justice should be confirmed
by the Senate.
I am one of the members of the Senate Ju-
diciary Committee who is convinced that the
right of the American people to be governed
by the principles of their written Constitu-
tion rather than by the arbitrary, inconstant
and uncertain notions of Supreme Court
Justices will be best served by denying to
Mr. Fortas the office of Chief Justice of the
United States.
As a member of the Senate Judiciary
Committee, I merely undertook to perform
forthrightly my obligation as a member of
the Committee and the Senate to make
known the qualifications of Mr. Fortas for
the post of Chief Justice. This obligation
arises out of Article II of the Constitution
which provides that the President appoints
Supreme Court Justices "by and with the ad-
vice and consent of the Senate"
The gravity of the obligation which this
constitutional provision imposes on a Sena-
tor is clearly revealed by the nature of the
office a Supreme Court Justice occupies and
the awesome power he exercises in it, Su-
preme Court Justices hold office for life, and
are not responsible in any way to the people.
After they ascend the bench, no authority
external to themselves can control their offi-
cial conduct or make them keep their oaths
to support the Constitution.
As Chief Justice Stone declared in the
Butler Case: "While unconstitutional exer-
cise of power by the executive and legisla-
tive branches of the government is subject
to judicial restraint, the only check upon
our exercise of power is our own sense of
self-restraint."
Since Mr. Fortas has been a Supreme Court
Justice for about three years, the important
question confronting the Senate is whether,
he ought to be elevated'for life to the more
prestigious office of Chief Justice-an office
more powerful than that of the Presidency in
its impact upon constitutional government.
The reason why it is essential for. Supreme
Court Justices to abide by their oaths to sup-
port the Constitution is clearly disclosed by
Justice Benjamin N. Cardozo in his book,
"The Nature of the Judicial Process." In
disapproving the theory that judges are
privileged to substitute their individual
sense of justice for established rules of law
when they decide cases, Justice Cardozo
said: "That might result in a benevolent
despotism if the judges were benevolent
men. It would put an end to the reign of
law."
Let me recount my actions at the hear-
ing on the Fortas nomination.
I questioned Justice Fortas for a compara-
tively short time concerning general matters
relating to the Constitution and his extra-
judicial activities, and he freely responded
to my questions.
I then informed Justice Fortas that I did
not think it proper to put to him any ques-
tions relating to his future judicial actions
and would not do so.
I informed him, however, that I did wish
to make inquiry of him concerning past de-
cisions in which he had joined in his ca-
pacity as an Associate Justice. The objec-
tive of my proposed inquiry was to ascer-
tain whether he could reconcile those de-
cisions with the words of the Constitution
and the numerous prior decisions of the
Court placing contrary interpretations upon
them.
Upon. being advised by Mr. Fortas that he
did not feel free to answer questions relat-
ing to past decisions in which he had par-
ticipated, I informed him I would not in-
sist on his doing so, and that I would state
my interpretation of those cases myself for
the hearing record and then insert all the
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CONGRESSIONAL RECORD - SENATE September 9, 1968
opinions filed in them In the hearing record
so any Interested person could thereby de-
termine whether I had interpreted the cases
correctly. Incidentally, a committee hearing
record is made for the information of the
Senate when it passes on committee recom-
mendations.
Before stating my interpretation of the
cases and inserting the opinions In them in
the record, I advised Justice Fortas that as
far as I was concerned he was at liberty to
depart from the hearing. I added, however,
that in the event he elected to remain he
would be at liberty to make any comments
he desired respecting the accuracy of any
interpretation I placed upon any of the caseg.
Justice Fortes voluntarily elected to remain
while I was stating my interpretation of the
cases for the record and inserting the opin-
ions in them in the record. My performance
of this task necessarily consumed much time
because the cases were numerous and the
opinions In them rather lengthy.
Let me assure you that I was courteous to
Justice Fortes throughout the hearing and
treated him just exactly like I would have
liked to have been treated had our positions
been reversed.
In my deliberate udgment, the cases
make it plain that in rh, :t performance of his
work as an Associs Juice, Mr. Fortas has
undertaken to car into effect the words he
spoke at America University on March 20,
1968. At that plat and time he declared:
"But the woe of the Constitution were
not written wi a meaning that persists
for all time. W rds are not static symbols.
Words may be carved In impervious gran-
ite, but the fords themselves are as im-
permanent as the hand that carved them.
They reflect sight and shadow, they are
modified by 1in and sun, they are subject
to the changes that a restless life brings
upon them. the specific meaning of the
words of a Constitution has not been
fixed and changing. They never will be
fixed and changing. The Constitution is
not static. ut the changes In those words-
changes in a meaning of those words-have
not, as one imight think, been arbitrary or
haphazard.",
After re ng these words of Justice For-
tas, I won red why George Washington,
Benjamin Fr nklin. James Madison, Alexan-
der Hamiito and the other good and wise
men who franked the Constitution put provi-
sions in that ' ocuinent requiring Supreme
Court Judges take oaths to support a Con-
stitution whos words Justice Fortas says
have no fixed eaning, and specifying that
the Constitutlo can be amended, I.e.,
changed only by' the joint action of Con-
gress and the States.
When all Is said,`,(.merica's greatest jurist
of all time, Chief Justice John Marshall, said
all that can be souny said on the subject
in Marbury V. Madison., After declaring that
the principles of the Constitution "are de-
signed to be pernianent,i', he added:
"From these, and manj*\\other selections
which might be made, it 18-.apparent that
the framers of the Constitution content:
plated that instrument as a rude"Tor`Ehe
government of courts, as well as the legis-
lature. Why otherwise does it direct the
judges to take an oath to support it? This
oath certainly applies, in an especial man-
ner, to their conduct in their official char-
acter. How immoral to impose it on them,
if they were to be used as the instruments
and the knowing instruments, for violat-
ing what they swear to support! ... Why
does a judge swear to discharge his duties
agreeably to the Constitution of the United
States, if that Constitution forms no rule
for his government? . If such be the real
state of things, this is worse than solemn
mockery."
I close with this observation: If Its words
have no fixed meaning, the Constitution is
indeed a "solemn mockery," and furnishes
"no rule for (the) government" of Supreme
Court Justices.
This letter may convince some of your
readers that those who advocate the confir-
mation of Mr. Fortes do not have complete
possession of ail the truth.
SAM J. ERVIN, Jr.,
[From the Washington Post, Aug. 15, 19681
A REPLY TO SENATOR ERVIN ON THE FOaTAS
HEARING
In a letter published in The Washington
Post of Aug. 9, Sen. Sam J. Ervin Jr. of
North Carolina, sets forth his position with
respect to the qualifications which should be
considered In confirming the appointment
of the Chief Justice of the United States
Supreme Court, and the character of the
hearings held to determine those qualifica-
tions. These views are important not only
with respect to Mr. Justice Fortes, but also
as a precedent in the kind of hearings which
might be held in connection with future
appointments.
The Senator relegates to a minor place the
considerations which in the past have deter-
mined the qualifications of the Justice, such
as outstanding integrity and legal ability.
The sole qualification for 3ppoilLitment to
McCullough v. Maryland that "Almost all
compositions contain words which taken In
their rigorous sense would convey a meaning
different from that which is obviously in-
tended." Such examples could be endlessly
multiplied. I conclude with Learned Hand's
observation which expresses a concept that
Senator Ervin Ignores:
"For a judge called upon to pass on a ques-
tion of Constitutional law everything turns
upon the spirit with which he approaches the
question before him. The words he must con-
strue are empty vessels into which be can
pour nearly anything he will. Men do not
gather figs or thistles, nor supple institu-
tions from judges whose outlook is limited
by parish or class. They must be aware that
there are before them more than verbal prob-
lems more than final solutions cast it gen-
eraifzatlcns of universal applicability. They
must be aware of the changing socia' ten-
sions In every society which make it an
organism; which demand new schemata of
adaptation: which will disrupt It, if rigidity
confined.' Having come to the conclusion
that the qualifications of a Supreme Court
Justice depend on how he is likely to decide
future cases, the Senator is faced with a
procedural problem, i.e., how to find out in
advance whether the new Justice is likely to
violate his oath of office by handing down
future decisions which contradict the Sena-
tor's views. The simple way of course would
be to cat'. the new Justice on the stand and
ask him his views on each of the contro-
versial issues whi.:h might come before the
the Court. There Is no doubt that this is
It is therefore the duty of a Senator to put
pressure on the Supreme Court by blocking
confirmation of any Justice whose views do
not coincide with the .Senator's Interpreta-
tion of the Constitution.
Senator Ervin does not put his argument
in such blunt terms. The Senator says a
Supreme Court Justice must take an oath
to support the Constitution. If after con-
firmation the Justice delivers opinions con-
trary to the Senator's convictions, he violates
that oath. It is clear 'that the Senator thinks
the majority on the Warren Court have been
violating their oaths to support the Consti-
tution for the past several years. He intends
to put a stop to this sort of thing, If he can.
In such an effort, endorsement of the Amer-
ican Bar Association and the faculties of our
greatest law schools becomes Irrelevant.
The Senator quotes from a recent speech
In which Mr. Justice Fortas says:
"So the specific meaning of the words of
the Constitution has not been fixed and
unchanging. They never will be fixed and
unchanging. , he Constitution is not static
,
as one might think, been arbitrary or hap-
hazard.'/
Those words prove to the Senator that
Justice Fortes will violate his oath of office
end ignore the written language of the Con-
stitutton. He sums it up with great sirtiplicity
as follows:
"I close with this observation: If its words
have no fixed meaning, the Constitution Is
indeed a 'solemn mockery,' and furnishes 'no
rule for f the) Government' of Supreme
Court Justices."
It must be obvious, even to a layman, that
words like "general welfare," "due process of
law," "equal protection of the law," represent
constitutional ideals, not definite rules. What
the Senator is saying is that the constitu-
tional fathers made a mockery of the Con-
stitution by using such general terms.
Senator Ervin cites Chief Justice Marshall
in support of his position that the words in
the Constitution are designed to be per-
manent and have a fixed meaning. He over-
looks a whole body of legal literature In-
cluding Marshall himself who observed in
'would be indiscreet to use such injudicious
nguage. Therefore the Senator adopts the
fore cur'ibersome procedure of reading the
pAst decisions of the Court to Mr. Justice
Fortas, giving him the opportunity to repent
anti repudiate them or to explain-them away.
Thfs of course is an open attempt to put
preslsure on and Influence a judiciary which
the Constitution declares should be inde-
penitent,
Of'course the Senate has the actual power
by majority vote to destroy the independence
of the Supreme Court. There is little danger
that this will ever occur. Even President
Roosevelt at the height of his power ould
not get the votes to approve his Court pack-
ing plan. The danger represented by Senator
Ervin and his collaborators is a different one.
It is that a small minority, by the use of
filibuster tactics, may impair the independ-
ence of the judiciary and influence the course
of Judicial decisions in the United States.
This is the threat which is so ominous in the
procedures which now threaten to blocs the
appointment of Justice Fortas as Chief Jus-
WASHIYOTON.
The EDITOR,
The Washington Post,
Washington, D.C.
DEAR SIR: I ask space to comment on Mr.
Thurman Arnold's reply to my statement on
the Fortes nomination.
I offer no defense to Mr. Arnold's attempt
to belittle my position by attributing to me
remarks I did not make, thoughts I do not
think, and motives I do not entertain. These
things are not relevant to the issue whether
the Senate ought to advise and consent to
the President's nomination of Mr. Fortes for
the office of Chief Justice of the United
States,
If It is to deterralne this issue aright, the
Senate must consider and answer these
questions Why was the Constitution writ-
ten? Do the words of the Constitution have
fixed and unchanging meanings? What obli-
gation does the Ccnstitution Impose upon a
Supreme Court Justice? Will Mr. Fortas per-
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