|Table of Contents|
Table of Contents
Statements and panelists
94th Congress COMMITTEE PRINT
2d Session C
ADVICE AND CONSENT ON
SUBCOMMITTEE ON SEPARA
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976
COMMITTEE ON THE JUDICIARY
JAMES 0. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas
PHILIP A. HART, Michigan
EDWARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana
QUENTIN N. BURDICK, North Dakota
ROBERT C. BYRD, West Virginia
JOHN V. TUNNEY, California
JAMES ABOUREZK, South Dakota
ROMAN L. HRUSKA, Nebraska
HIRAM L. FONG, Hawaii
HUGH SCOTT, Pennsylvania
STROM THURMOND, South Caroina
CHARLES McC. MATHIAS, JR., Maryland
WILLIAM L. SCOTT, Virginia
FRANCIS C. ROSENBERGER, Chief Counsd and Staff Director
SUBCOMMITTEE ON SEPARATION OF POWERS
JAMES ABOUREZK, South Dakota, Chairman
JOHN L. McCLELLAN, Arkansas
QUENTIN N. BURDICK, North Dakota
ROBERT C. BY ED, West Virginia
CHARLES McC. MATHIAS, JR., Maryland
H UGH SCOTT, Pennsylvania
IRENE R. MARGOUS, Chief Counsld and Staff Director
WILLIAM C. WVILKA, Jr., Assistant Counsel
LINDA JACOBSON, Assistant Counsel
On November 21, 1975, 1 joined Senator Kennedy and Senator
Mathias in convening a Symposium on Advice and Consent on
Supreme Court Nominations. The purpose of this Symposium was to
consider the Senate's "advice" role under the Constitution in Supreme
Court nominations, general criteria relevant to Supreme Court ap-
pointments, and qualifications to be applied in assessing nominees.
The Symposium was open to the public and every member of the
Senate was invited to participate The need for this Symposium
became apparent upon the resignation of Mr. Justice Douglas, follow-
ing his courageous effort to continue serving on the Court despite a
painful and debilitating illness.
This Symposium was intentionally held before the President sub-
mitted the name of his nominee in order to focus on the Senate's
responsibilities in the advice and consent process without injecting
personalities as an issue. The discussions were stimulating and
extremely helpful in raising the various factors which the Senate might
be expected to weigh in confirming not only a successor to Justice
Douglas, but which would be relevant to any Supreme Court
A panel of distinguished lawyers and scholars participated in the
Symposium, sharing with us their evaluations of the nominating and
confirming process as well as their analysis of standards they considered
relevant to selecting and confirming a nominee to the Court.
The panelists were:
Robert Meserve, of Boston, Massachusetts, former president of the
American Bar Association;
Dean Louis H. Pollak, University of Pennsylvania School of Law;
Professor William F. Swindler, College of William and Mary;
Professor Alfred H. Kelly, Wayne State University; and
Professor A. E. Dick Howard, University of Virg nia School of Law.
The panelists brought to the Symposium a diversity in background
which is reflected in the variety of views they expressed on the Senate's
role in filling an empty Supreme Court seat. All were in agreement,
however, that a nominee should be a "public" person, in the broadest
sense of that word. The types of professional experience which best
develop this essential characteristic, which mold a nominee's intel-
lectual honesty, judicial temperament, and attitude toward social
issues, were the focus of the panelists' discussion.
The joint role played by the President and the Senate in appointing
a Supreme Court Justice addresses the basic constitutional issue of
separation of powers. By publishing the entire Symposium, the Senate
Subcommittee on Separation of Powers hopes to provide the reader an
added insight into the responsibility the two branches of government
share in appointing men and women to the third branch, the judiciary.
I firmly hope that this Symposium will provide the Senate with a
clearer statement of its own role in the constitutional process as seats
on the Court are filled in future years.
JAMES ABOUREZK, Chairman,
Subconmittee on Separation of Powers.
Introduction ---------------------------------------------------- III
Abourezk, Hon. James, U.S. Senator, State of South Dakota -------- 3
Kennedy, Hon. Edward M., U.S. Senator, State of Massachusetts -_- 1
Howard, Prof. A. E. Dick, University of Virginia School of Law----- 18
Kelly, Prof. Alfred H., Wayne State University ------------------- 15
Meserve, Robert, Boston, Mass., former president of the American
Bar Association ---------------------------------------------4
Pollak, Dean Louis H., University of Pennsylvania School of Law. 9
Swindler, Prof. William F., College of William and Mary ----------- 13
Digitized by the Internet Archive
ADVICE AND CONSENT ON SUPREME COURT
.Participants: Senator Edward M. Kennedy, Senator James
Abourezk, Senator Charles McC. Mathias, Jr., Senator Jacob K.
Javits, Robert Meserve, former president of the American Bar As-
sociation, Dean Louis H. Pollak, University of Pennsylvania School
of Law, Professor William F. Swindler, College of William and Mary,
Professor Alfred H. Kelly, Wayne State University, Professor A. E.
Dick Howard, University of Virginia School of Law.
STATEMENT OF SENATOR KENNEDY
Senator KENNEDY. We will come to order, please.
I am pleased to join in welcoming our witnesses this morning.
One of the most important constitutional responsibilities of the
Senate is the duty imposed by article II, section 2 of the Constitution
to provide "advice and consent" in the appointment by the President
of members of the Supreme Court.
As a result of the retirement of Justice William 0. Douglas, the
Senate will soon be facing the exercise of its confirmation responsibility.
In the past, as befits the importance of the Supreme Court, the Senate
has been diligent in the performance of its "consent" function with
respect to such appointments. But the Senate has only rarely sought
to exercise the "advice" part of its constitutional responsibility at a
time when such advice may actually be most useful-at an early
stage of the appointment process, after a vacancy occurs, but before
a specific nomination is made.
In recent years the Senate has become more effective in asserting its
constitutional role in other areas of policy, especially in foreign rela-
tions and in the budget process. To a large extent, these efforts have
helped to redress the balance of power between Congress and the
executive branch, and have made Congress more of an equal partner
in our Federal system.
This morning's symposium is an effort to develop a constructive
and nonpartisan approach to the Senate's neglected constitutional
role of "advice" with respect to Supreme Court appointments. The
relatively large number of potential nominees submitted by the ad-
ministration for consideration by the American Bar Association is a
clear indication that the President is conducting an extensive search
for the most appropriate candidate.
By acting at this early stage of the appointment process, tho Senate
is in a position to participate in the process and render its advice on
the qualifications and other characteristics of potential Justices, free
of the personal considerations that inevitably arise once a specific
individual is nominated and the actual confirmation proceedings begin.
We meet this morning with lawyers and scholars to discuss and to
learn how individual Senators and the Senate as an institution can
most effectively carry out this advisory role.
First, we shall be addressing tepos concerng te m aing of
"advice" in the Constitution" and the form. such advice may take.
There are a few precedents to guide us.
In 1869, a large majority of both Houses of Congress signed a formal
petition to President Grant, TeqInesting him to nominate Abraham
Lincoln's Secretary of War, Edwin M. Stanton, to the Supreme Court.
President Grant was already in a struggle with the Senate over a
previous nomination. He welcomed a chance for a reconciliation with
the Senate, and promptly nominated Stanton. But in a tragic turn,
Stanton died 4 days after his name was submitted.
In 1932, President Hoover let it be known that he would like to
choose a noncontroversial western Republican as the successor to
Justice Oliver Wendell Holmes. But the chairman of the Senate
Judiciary Committee, George W. Norris of Nebraska, made it plain
to the President that he and other members of the committee would
insist on a distinguished successor in the Holmes mold. And Senator
Borah of Idaho, chairman of the Senate Foreign Relations Committee,
repeatedly called for the nomination of Benjamin Cardozo. After a
search of several weeks, Hoover nominated Cardozo, surely one his
finest acts as President.
We know, of course, that the search has not always found the best.
Judge Cardozo reached the Supreme Court, but Judge Learned Hand
Second, we shall be discussing this morning the various criteria and,
qualifications and other considerations that have been applied in the
past to appointments to the Supreme Court and that should be applied
today. The experts will give us their views on factors such as geog-
raphy; sex; age; religion; race; judicial, legislative and academic
expience; political af iliation; philosophy, the desirability of seeking
a balance of these factors among the nine Justices; whether the nominee
should be a lawyer at all; and whether a predictable or consistent
application of these criteria is wise )olicy, even if it could be achieved.
A truism of American history is that Presidents change, but the
Supreme Court endures. On occasion, the appointment of a Justice
has been the equivalent of a constitutional amendment. Justice
Douglas, was still a powerful influence on the Court and the country,
30 years after the death of the President who appointed him. President
Ford's choice may well have a similar im pact.
Our hope is that the President will seek out the best and the ablest
person to fill the Douglas vacancy. In the early 1800's, President John
Adams could say, "my gift of Chief Justice John Marhall to the
people of the United States was the proudest act of my life." It is in
that spirit that we meet this morning, and I am pleased to welcome
our distinguished witnesses.
But first we will hear from Senator Abourezk and Se-iator Mathiis
who will join with us in bringing our meeting together today. And we
ask Senator Aboure/k for any coinents that he may have.
STATEMENT OF SENATOR ABOUREZK
Senator ABOUREZK. As we are well aware, the Senate plays an
essential role in the appointment of a new Justice to the Supreme
Court. The President makes his appointment with the "advice and
consent" of this body. Our consent is given--or withheld-when we
vote on a particular nominee's fitness to sit on our country's highest
While the "consent" aspect of the Senate's constitutional role is
thus readily discernible, the same cannot be so easily said of the
Senate's duty to give its "advice" on a Supreme Court appointment.
Although the Senate must, under the Constitution, offer its advice
to the President, it is difficult to state precisely just how that duty
is to be exercised institutionally. I say "institutionally" because the
Constitution is not, in my view, referring to the President's personal
requests to individual Senators for their advice on the best person
to name to the Supreme Court. Such advice is obtained from Senators,
but not from the Senate as such.
I think that it is easier to state what this duty to give advice is not.
It is not the right to choose the nominee. The Constitution states that
the President nominates, not the Senate. Therefore, our advice should
not be expressed in the form of a list of names from which the President
must then choose. That is not our role.
However, neither do I believe that the Framers inserted the word
"advice" into the Constitution carelessly. They surely intended that
the word in some way affect the process whereby the Executive and
the Senate play their joint role in the appointment of a new Justice.
In fact, the word "advice" cries out for Senate participation in the
selection process at some point prior to the strictly "yes" or "no")
exercise of consent. I would like to read a brief paragraph from a
speech I inserted into the Congressional Record outlining the history
of this part of the Constitution.
"The Senate appointment of judges was approved by the Consti-
tutional Convention on July 21, 1787, and was included in the draft
of the Committee of Detail on August 6. Hamilton, unhappy with
the diminution of Executive power, proposed as a compromise that
the President appoint and nominate with Senate power to 'reject or
approve,' implying that the Senate not participate in the nominating
power. The Committee of Eleven, on September 4, accepted Hamil-
ton's compromise with one significant modification: the words 'reject
and approve' were changed to 'advice and consent', thereby expanding,
the role of the Senate. This compromise was finally agreed to in the
very last days of the convention."
If that advice is to be anything but a sham, it must be received
before a particular nominee is presented to the Senate for its consent.
What, then, is our role, if our advice must be given prior to giving our
withholding consent, yet does not extend to suggesting names our-
It is our duty, I believe, to propose certain standards which any
nominee must meet. In doing so, I do not suggest that the Executive,
in making the nomination, is thereby limited to considering only the
criteria we recommend. That would infringe upon his power to nom-
inate. But we can articulate those standards by which every nominee
will be measured before our consent is given to his or her appointment.
It is in this spirit that I think it appropriate that we meet here
today. I am pleased and honored that these five distinguished gentle-
men have been able to join us for this symposium. I hope that, with
their assistance, we can begin to examine those standards which the
Senate should consider when it evaluates the fitness of the next
nominee to the Supreme Court.
Senator KENNEDY. Thank you very much, Senator Abourezk.
We will start this morning with Mr. Robert Meserve. Bob Meserve
is an attorney from Boston and an old friend of mine. He is past presi-
dent of the American Bar Association and former chairman of the
ABA Standing Committee on the Judiciary. Mr. Meserve is appearing
today to share his own experiences and perspective with us, but not
as formerly representing the ABA at this symposium. And we are
delighted to have you!
STATEMENT OF ROBERT RESERVEE, LAWYER, BOSTON, MASS.
Mr. MESERVE. Thank you very much, Senator. It is a great pleasure
to be here. I am very happy to participate in this process, and particu-
larly happy that the Senate is interested in attempting to delineate and
exercise its power of advice if it sees fit to do so.
I speak today on the basis of a long-time experience with judicial
nominations, not only in the capacity of a former president of the
American Bar Association, but also as a former chairman of its judi-
ciary committee. But I would like to emphasize your remarks, Senator,
that I do not represent the American Bar Association here. I speak as
a private individual with a tremendous interest in the subject matter
and in the hope that I can be helpful.
I should start off by saying that I think the objective to which we
w ould all subscribe is obtaining for the vacancy of the most distin-
guished and presumptively the most able person that we can possibly
find to disciarg e duties of that high office. It is, indeed, a most
significant one, and we need the cooperation of everybody concerned
in the nominating process in order to reach that objective, which is
clear, and I am sure is agreed to in principle by all the parties partic-
ipating in it.
Lawyers, it seems to me, have a particular responsibility here btit
that responsibility, as fat' as the American Bar Association is concerned,
and its effective an( efficient committee, is limited to an analysis of
what w(e might loosely all professional qualification. I think it would
be very unfortunate if a committee which has been called ulon
repeatedly by Prldents to express its opinion on judicial nomina-
tions, both to this (Uourt and to ourt other courts, should ever attetlipt
to imake a selection based on political or ideological grounds. Those are
very important considerations ill the selection of a Supreme Court
Jus tice, perl taps the ilt important considerations that the Senate
I think it wouid be untadviable for the bar or a committee of the bur
to attempt to exercise that prerogative. What the bat can do, at1d
wliat tie American Bar Associaon committee attempts to do, is to
]M, Mpon p rofe-Wsional qualifications. Amid specifically, it has said in a
report to t Ie house of delegates of the bar that it w1ll limit its report
to professional qualifiCatiots of the proposed nominee, his integrity,
his judicial temperament, and his professional competence. It will not
attempt to report on political or ideological matters. And as far as I
know, that report, which was made in 1970, still states the policy both
of the Bar Association and of its committee.
I have not myself, since I ceased to be chairman of the committee,
regularly attended its meetings nor taken part in any discussion of any
nominee except as my advice might be asked as to some individual or
individuals with whom I was acquainted.
I stand ready to answer any questions, but I think any more general
remarks from me might not be helpful.
Senator KENNEDY. Thank you very much, Mr. Meserve.
I would like to examine these criteria somewhat more elaborately.
For example, in the area of integrity, is this just a question of honesty,
or does it go beyond that?
Mr. IESERVE. Well, I think I would rather define the word integ-
rity as including all kinds of honesty. It seems to me that it is not
just a question of whether a lawyer will make way with his client's
funds, something obviously dishonest of that sort. The issue of integ-
rity, as I see it, goes to his intellectual integrity as well, and his rep-
resentation of his clients if he is a practicing lawyer, whether or not,
in his representation, he makes clear the areas where he himself is
speaking for himself and where he is speaking for his client. He makes
clear his professional interest where one exists and does not try to tell
people, in effect, that this is my opinion when it is an opinion that he
is paid for giving.
That is the sort of integrity, Senator, to which we address ourselves,
although, of course, in the obvious cases where there is a question of
financial integrity, we surely would be interested in that. I cannot con-
cede that any President would knowingly, at least, nominate anybody
whose character in something of that kind was warrantably attacked.
But in the field of professional integrity, the word has a much broad-
er scope I think than the word integrity alone might suggest.
Senator KENNEDY. How do you go about measuring judicial tem-
Mr. MESERVE. I wish, sir, that I honestly could tell you that I
knew. I think that it is a question of investigating attitudes, whether
or not the person, who by definition is a man who has been in public life
for a period of years, has an attitude which indicates that on the Bench
he would try to decide the case on the merits of the matter and not on
the basis of preconceptions, not on the basis of who is pressing the mat-
ter and so forth, and he will not be irritable with counsel or, in the case
of the lower court judge, with witnesses and parties. That he will give
everyone an opportunity fairly to speak his mind, and will weight the
evidence or the arguments as best he can.
That is what we mean by judicial temperament. How you go about
determining it is very difficult. With some people it is not. If you have
the history of a judge who habitually harangues litigants in court, and
so forth, you low that his judicial temperament wears pretty thin
pretty quickly and you surely would not recommend him for advance-
Senator KEN-N-EDY. In the area of legal competence, is the criterion
tust competence within the particular field where that individual has
been practicing, or does it have a broader definition? Do you think
political experience is considered professional experience?
Mr. MESEvE. That (as you know, of course, as a lawyer) is a
double question. Let me first say that as far as political experience is
concerned 1 think that our members of the A-merican Bar committee,
although they do not go into questions of political views, would
regard political experience as a plus. We think it is obviously a duty
of an American citizen to participate as far as he can in the political
process, and we are very well aware that people that have occupied
political office, particularly national political office in this case are
people who have been subjected to ideas and have formed idew which
may be very valuable on the Bench, and we would regard it as a plus.
B ut we would not regard it as the equivalent of professional experi-
ence, which is the other issue to which your question directs itself.
We would feel, and this gets back to a suggestion made by Senator
Aboui-ezk, we would feel that it would be, at this time in the life of our
country, extremely unfortunate if the President or the Senate were
to a(Iopt the option, which is theirs under the Constitution, of nominat-
ing or confirming someone to this Court who is not a lawyer. We feel
that only a lawyer will have the ability to deal with the great number
of cs-es which come before the Court, to determine those which are
significant in the legal sense and so forth. We think it would be very
unfortunate if a man were selected who had never studied law, who
would spend the next 4 or 5 years on the Bench studying law at
Government expense. And we think this would be unfortunate, even
though he had a very good mind, and even though he had a very good
idea of the political process.
There are many, many cases which come before any court, including
the Supreme Court, which are not heavy, at least, in political content
which involve a knowledge of the history of law and involves the
knowledge of how the law is practiced from the point of view of a
Senator KENNEDY. Would the nonlawver be automatically stamped
Mr. MESERVE. The problem has never arisen, Senator. I would not
want to commit my successors. But I think the chances are very
good that a nonlawyer would not be regarded as having that profes-
Senator KENNEDY. I know, and I am sure you know a certain
reporter, and I will not mention his name, who prior to the time
that lie was going to report on the Supreme Court decisions went
up to a distinguished law school in our part of the country, Harvard
Law School, and in 1 year took courses in the first, second, and third
year nld received straight A's in all of them. He then reported his
experience and had a distinguished record in writing reviews of that.
()bvioiiiy that is an extraordinary and unusual case, but I suppose,
and your point I believe is wefl-taken, in terns of the weight that has
to be given to any qualified lawyer, regarding the burden that would
have to be overcome by someone who is not trained as a lawyer.
Mlr. M~s v. That, Senator, is exactly why I said I would not com-
mit my successor. It is possible. Although I doubt it that such an ex-
tr1aorlinary case could arise.
I would like to address myself to your other question, if I may,
and it concerns the question of whether or not we look for a profe.ionai
competence in a limited field a, for example, a lawyer who tat speut
his life practicing patent law and was a very good patent lawyer. I
have a very strong feeling on that, Senator, and my feeling is that we
are interested in lawyers, for the Supreme Court particularly, who
have demonstrated that they are more than practicing.
We want practicing lawyers (or lawyers who have practiced, who
may be teaching in law schools or something of that sort). But,
that, we want lawyers who have shown in some way a knowl-
edge beyond the knowledge of a specific field of law, who have
covered many fields of law, who have shown an intellectual interest
and an ability to get beyond the particular and search for the general;
one of the duties I think of a Justice of the Supreme Court of the
Senator KENNEDY. Last summer the ABA adopted a resolution on
women in the judiciary. As I understand the resolution, it is general
in nature. Do you believe that special emphasis should be given to
seeking a qualified woman as an appointee to the Court?
Mr. MESERVE. Yes. I feel very strongly that that language does not
direct itself to the issue that at any given moment in history it is
important to create a seat specifically for a woman, or to appoint a
woman in an instance where it is clear that there are available people
of the other sex who are more competent than she. I think it is,
however, a very important generality.
I supported the idea that a competent woman should be on the
Supreme Court. I think it is very unfortunate, Senator, when a given
seat on the Court becomes designated as a Jewish seat or a New
EuglaM seat. (Incidentally, we don't have any now as you know).
Or some other group representation. I think both the group and the
individal may suffer. I think that in every instance the objective
ought to be to find the best qualified person, male or female.
Senator KENNEDY. People do think that special seats might be for
special groups and they might be entitled to special seats on that
Co Doesn't this theory have an impact of lessening the stature
because of the public perception that the nominee was not subjected
to the same rigorous standards since he or she fits some category?
Mr. MESERVE. Exactly.
Senator KENNEDY. Some particular pigeon hole?
Mr. MESERVE. That is the point that I was trying to make I think.
You are absolutely correct. I think, if I had the good fortune (when I
was young enough to do so) to have been appointed to that Court,
I hope people would not have looked upon me, if I had been ap-
pointed, as the holder of the New England seat, or as the white, Anglo-
Saxon, Protestant seat, or whatever particular group I might fall into.
l think that would be demeaning to me and demeaning to the Court.
And I would surely hope that we would continue the process of sur-
veying the whole field when a vacancy exists.
On the other hand, I do feel very strongly that the Court ought in a
broad sense, and not in any theory of proportional representation, to be
truly representative of the people of the United States. And I would
hope that that general overall police, which applies to geography as
wl s ethnic origin, race, sex, all of these things wvould be served by a
President. But not t0 the extent of handicapping the Prosident and the
Senate in the selection process.
Senator ABOUREZK. On this panel you are, I think, the only prac-
ticing lawyer at this point.
Mr. 'MESERVE. I am very conscious of that, si.
Senator ABOUREZK. I think I know what your views are on whether
or not the nominee ought to be a practicing lawyer or someone who
has practiced; but how valuable, in your view, is the nominee's activ-
ities as a legal scholar? Would legal scholarship be sufficient if he did
N1r. MESERVE. For the Supreme Court of the United States, I would
feel that the qualifications are very difficult to define in advance. I
would say that my good friend and former professor, Felix Frankfurter,
for example was a distinguished Justice of the Court, that his actual
practicing experience was extremely limited, and that he came to the
Court essentially from the cloister. And I think he did a very, very
good job, although there were some I know who would disagree with
I think that generally speaking it is unfortunate that there are too
many law school teachers today who, perhaps, have not had the back-
groud of practice, because that would be useful to them as professors.
But nevertheless, just as I would think that it is not necessary to ap-
point a sitting judge by promotion to the Supreme Court, but that the
nomination could be made from the bar, so I would say the nomination
clearly could be made, and in many instances might profitably be
made from academia.
Senator ABOUREZK. NOW, there have been a lot of commentators
since Justice Douglas announced his retirement who have talked
about the politically best thing for President Ford to do with this
nomination. Some have said now is a perfect time to pick a woman
because that would be good for his election next year. Others have
said that in order to ward off the Reagan challenge he will pick a
conservative, or someone of Governor Reagan's philosophy. Would
you comment on those kinds of observations?
NMr. MESERVE. I think you have suggested my answer. As a lawyer
I would feel, I would feel in the first place that I was unable to com-
mnent upon the fitness of any person who is chosen on such a basis,
an(l I would hope that no person would be chosen for a purely political
reason. I would surely expect that any person that was cho en would
I)e ini part selected because of his or her political views, but I would
hope tlt the person to be selected would not be selected in order to
gaim political advantage for the President or anyone else. And I
surely have enough confdence in the Office of the Presidency to believe
Preidlents would not nominate to this distinguished office for that
puripoe. And if they do, I should think that the public reaction would
on the whole be unfavorable rather than favorable.
Senator ABOUREZK. Now one final question. It has been suge sted
that perhaps the Senate ought not to be involved in estabhshing
(j ua lificatMins for a nominee. Given the circumstances under which
Pr-esident Ford caie into office and the length of time he has left, and
the differencee between the Senate considering nominees for the
(Cahinet as opposed to the Supreme Court, do you view the increased
activity of the Senate in this regard as good or bad or indifferent?
Mr. MESERVE. Well, it is in my opinion wholly gdoo, and I em-
P)1aize again I speak as an individual, and not as one connected with
the Aiercaii a Bar Association. I think it is very desirable that in
advance of the selection of a particular nominee as to whom there
may possibly be ideological or political objection on the part of an
individual Senator, that the Senate make it clear to the President
that they are interested in obtaining for the office, regardless of
politics, the most outstanding practitioner of the law who can be
obtained at this time from the bar and who, and I hasten to add to
that, who gives a reasonable prospect of being an effective period of
time, given normal human life expectancy.
Senator ABOUREZK. Thank you.
Mr. MESERVE. Pleasure.
Senator KE XEDY. Given the fact of the importance and significance
of the Court's workload, and the statutory interpretation, is legislative
experience more or less important as it might have been in the past
history of the country?
Mr. MESERVE. Everything is so much more intensified, Senator,
that I think it just becomes a question of degree. I do not think
legislative experience is any more or less important today than it was
when Senator Black was nominated, for example.
I would say that given that, however, I regard legislative experience
as a plus, but not as a replacement for adequate experience at the bar,
Senator KEN EDY. Thank you very much. You have been very,
eMr. MESERVE. Thank you, Senator.,
Senator KENNEDY. Dean Pollak, we are glad to have you here this
morning. Dean Pollak is with the University of Pennsylvania School
of Law, and a distinguished author of "The Constitution and the
Supreme Court; a Documentary History." Would you like to proceed.
STATE-MENT OF Louis H. POLLAK, DEAN, UNIVERSITY OF PENNSYL-
VANIA SCHOOL OF LAW
Mr. POLLAK. Thank you, Senator Kennedy. It is a great pleasure
and privilege to meet with you and Senator Abourezk this morning
with this distinguished group of experts, including our one practi-
tioner, Mr. Reserve. I am sorry that he had to depart to get back to
the act of practice.
But I do want to say that I think the United States is greatly
indebted to the efforts Mr. Meserve and his colleagues in the American
Bar Association, most especially Mr. Bernard Segal, have made over
the past many years to be of assistance to Presidents in the selection
of members of the Federal judiciary, and especially the Supreme Court
Justces. Of course, as Mr. Meserve properly said, that assistance has
to be characterized as one of responsiveness to requests for professional
judgments rather than the individual function which the Constitution
vests in the Senate, as you so well pointed, Senator Kennedy, in your
There is no private group which can wish or be permitted to sub-
stitute itself for the responsibility of the Senate in this regard, and I
know the American Bar Association feels very deeply that constraint
on its role. And for these reasons I think I'm sure I speak for all of us
here this morning whom You have asked to come and meet with you,
we feel very happy to have the opportunity of discussing with Mem-
bers of the Senate the responsibilities which the Senate bears, together
with the President for assuring that appointments to the Supreme
Court are of the highest quality and will carry forward our constitu-
I suppose no more important evidence of the consequences that we
are discussing today could be adduced than simply a moment's recol-
lection of the extraordinary career of the Justice whose place is now
vacant. It is quite evident that Justice Douglas h-as ven to this
Nation an extraordinary constitutional heritage. I would like if I may,
Senator, simply to pick up briefly on some of the matters which were
in discussion between you and Senator Abourezk and Mr. Meserve.
Senator KENNEDY. I thought what we night do is to as each of
you for brief observations as to the remarks of Senator AboLrezk
and his opening statement and my own and in some of the areas we
have just touched on here; and then come back to some discu-sion
within the group. And I would hope that at any time you want to
interrupt each other to comment, please do so. t want this to be as
interactive as possible.
Mr. POLLAK. Fine. Well, I would certainly appreciate being inter-
ruved, and I think it would lend some to the process.
First, Senator, you inquired as to whether politics and participation
in politics is an important attribute, or one really not to be given
weight. For myself, I would have to say that as we survey the persons,
the 100 persons who have constituted the Supreme Court over our
history, and those who have contributed most greatly to it, I think we
would have to conclude that participation in public life of this country
is a major qualification, not perhaps an in dispensable qualification,
but like!v to be a major qualification predictive of important achieve-
inent. And I won't quite say, as I understood Mr. Meserve to say,
that it cannot be a substitute for the active practice of law.
I think, picking up on your question, Senator, as to tile utility- of
legislative experience, though I am not disposed to say it is more mi-
portant, being a legislator is a more important qualification now than
it has been in the past, and I do thik that participation in the legis-
lative process in certain other aspects can be very important as a
preface to a judicial career. If I may reach back into an episode, for
exatnmple, that has now pa-:sed, I recall wlwn Congressman Poff's
name wa suggested for thle vacancy that ultimately welt to Justice
Povel. The point was made that he had had very little experience in
practice, and most of his professional life had been il C omress. It
strikes me, tat there Nwas a Congressman whose special prticiption
in the work of the H ou se Judiciar committeee at a number o devoted
a(1 dis(ciplile(d professional leves gave his candidacy a Ious
which, with all ftraukne;, I would not av would be spread over all
Member, of either the Congress or the senate, whether lawyers or not.
I suppose what I am saying then is that if one would look at particular
instances one could l.(olude that in some Ccumstances participation
ill the legil!tive process could itself be regarded as professinal
attaitvment of an important kind.
But this gives me the opp)ortlnity to say something Which I hope
won't be taken as rudenem, Senator. But if it is taken i rud eues,
then so be it. It would be, il my view, very regrettable b eate
were to continue what I thik hs been a trtlitional pci f giving
virtually no eriois s(ruty to nominees from tie Senate Itself i and
nomiinati(ons from the louse of Rel)reent&lives.
Senator KENNEDY. That is not rudeness, that is just accurate.
Mr. POLLAK. I thought what I said was descriptively accurate.
The rude part might be my suggestion that it was time for the Senate
to mend its ways.
Senator Black turned out to be one of the great ornaments, as we
know, of our Bench. But it need not have been so. And I would hope
that the Senate could begin to conclude that if a Member of the
House of Representatives or the Senate were proposed for a seat on
the Supreme Court of the United States, that Member should be
subject to the same kind of rigorous scrutiny that any other nominee
would, or suffer the fate which you identified, Senator, as being
regarded as having lesser stature because he or she was cleared
routinely. So that is my rude intervention.
With respect to whether a nominee needs to be a lawyer, I appreciate
Mr. Meserve's opinion, and I guess I would have to disagree with it
in principle. I was informed a few months ago by
Senator KENNEDY. T do think that the point that is raised about
the clubby atmosphere of the Senate in terms of the consideration of
one of its own is a fair and legitimate point to be made. We have
seen the review of the now President Ford's qualifications at the time
that his name came up as Vice President., There was a careful review
that was made both in the House and the Senate that would indicate
there is also a situation where in the recent past they had exercised
that responsibility in a meaningful way. The record is clear on both
sides, and I think what you are doing is flagging an important warning.
The judgment that the Senate must make from this particular con-
stitutional requirement should be as strict for one of its own Members
as it would be outside.
Mr. POLLAK. Well, I very much welcome that observation, Senator,
and I certainly would applaud the candor with which the Congress
addressed the nominations of Congressman Ford to be Vice President
and, indeed, Governor Rockefeller to be Vice President. There is
some chance that some people might perceive the 25th amendment
standard and the congressional involvement there as a more searching
one than at the judicial appointment level, and I am glad we are in
agreement that they should not be.
I was simply going to say on the point of whether one had to be a
lawyer at all, it was recently pointed out to me that Professor Corwin
had had a lingering sense of neglect, that he had never been considered
for the Supreme Court, and it seems to me quite clear that he would
have been an ornament to that Court. I have been thinking before you
mentioned your anonymous journalist, Senator, that there, indeed, was
an example of a Derson whose identity I would not reveal by referring
to his book, "Giddeon's Trumpet" or his distinguished lectures at the
University of Pennsylvania a couple of years ago on lawyers and
civilization, but clearly one knows of nonlawyers who are as fully
versed in the constitutional process as lawyers. I see no likelihood that
a nonlawyer would be nominated, but I think the record, the con-
stitutional record should be clear that there are nonlawver s qualified
to participate in the constitutional process. I even think there may be
journalists, and I think I know of one journalist in the room whose
anonymity I will not break, who has shown in his writing of the Court's
work the same kind of oualities that we would like to look for.
Senator KENNEDY. How do you think the other 10 journalists feel?
Mr. POLLAK. I have not indicated where I Wa throwing that golden
if I may, I would like to turn to the question you raised and dis-
cussed with Mr. Meserve about the appropriateness of considering
qualifications such as sex or race or religion. I think it is very important
iluit x address these concretely. I think I would, in solle respects,
(iAffer from Mr. Meserve in emphasis, though certainly not in his
conclusion that the primary, the primary responsiblity is to select
a Justice of the highest professional rank, or vlth qualities of consti-
tutional judgment which would forward our vital processes.
I would think that in 1975 it would be an important ingredient in a
Prelident's thinking and in a Senator's thinking to be concerned with
finding within tie universe of the highly qualified people, finding a
womaii to serve on the Supreme Court. I emphasize again within the
universe of highly qualified people.
Why do I say that? Not because I think the Suprene Court ought
to be a representative institution, but because it is an institution in
whose composition and processes the American people must have
confidence. I think it is entirely apparent that most of our two centuries
of national existence were a period in which black citizens looking at
the Supreme Court could not see in it any indication, from the endless
procession of white males vlho served on it, that their citizenship was
being taken seriously. And when Mr. Justice Marshall was appointed
to the Court, it was an appointment long overdue. lie is one of our
io-t distinguished lawyers, quite obviously, at the highest level of
professional achievement. But, he had been so for many years before
his appointment. And one might add, that Judge Hasty had been at
the same level of professional achievement for a long time, and there
were other black lawyers, such as Charles Houston, before them who
would have ornamented the Supreme Court of the United States and
were iot there. One cannot help but think that the institution suffered
in terms of the view taken of i by millions of American citizens.
In that sense, it was important that there would be a time when a
black Justice would be appointed. 'That does not mean, in my view,
that one must always have a black member of the Supreme Court.
But olle must be sine that the Court over the long term fairly reflects
our pluralist society.
For decades now, we have generally had, but not continuously had a
Catholic Justice. I think it was an important thing which President
Truman did after the death of Mr. Justice Murphy not to insist that
his u(essor be a Catholic. In the same sense, I thilk, though I am
not on the whoie an admirer of some of President Nixon's views about
the judiciary, I think it was an important thing that he did in con-
cluding that it was not essential that a Jew be appointed to succeed
Justice Fortas, for the reason that the point had been made. Whether
we lave a Catholic or two or three on the Court at anly give time, or a
Jew, or two or three on the Court at any given time, is now no longer
ilmportalt. It was important. It was important when Brandeis was
appointed that that upreme]y qualified Justice not be turned away
for the variety of biased reasons for which he was opposed. It was
very important when Chief Justice Tariey was appointed to the
Supreme Court of the United States, that that Catholic lawyer aud
political leader nut be turned away because he was a Catholic.
But once we have established the principle I think there is no longer
a claim for any particular ethnic or religious place on the Court.
Therefore, in order to establish the pluralist principle as it relates to
women, I think now, or very soon, it would be appropriate for a
President to give affirmative consideration to the sex of the nominee.
Senator KENNEDY. Thank you Dean Pollak. Professor Swindler, we
will now hear from you.
Professor SwindlerL is a distingui-hed professor at the College of
William and Mary and the author of "Court and Constitution in the
STATEMENT OF WILLIAM F. SWINDLER, PROFESSOR, COLLEGE OF
WILLIAM AND MARY
Mr. SWINDLER. Thank you, Senator Kennedy.
I was interested in Senator Abourezk's remarks that the function
of the Senate in advice and consent with reference to appointments,
to the judicial branch, particularly to the Supreme Court, carried with
it substantially more significance and re-ponsibility on the Senate's
part than perhaps other Executive nominations to other executive
branches, because after all, the judiciary is the third branch of Govern-
ment. Therefore, the other two branches; would, in principle, seem to
me to share equal responsibility in finding the people who are going to
be permanent occupants of those position;, as distinguished from
appointments that perhaps are terminal Nith the administration of
a particular time.
Much has been suggested about the ambiguity or the lack of know!-
edge of the word advice, and I suggest that probably, in the beginning
it was assumed that it was a matter of political reaction on the part of
the legislative branch to the proposals of the executive branch that
were considered. In the original drafting of the Constitution,it probably
was a matter of politics in terms of the elite group who ran politics
at that time. That was perhaps subliminally in the minds of the
Nevertheless, the record shows that almost immediately the
politics that was practiced in advice and consent was politics in the
well-known sense of the word.
Now, we perhaps have a good deal to learn from the procedures of
some States. I am thinking of the judicial nominating commissions
which have sprung up known as the Missouri plan and the California
plan and so on, over the years, in an effort to avoid the most partisan
and least responsible elements of political consideration going into
judicial selections. We have gotten only as far as a proposal. I believe
it was by Senator Nunn, that there be a Judicial Disciplining Review
Committee, to act after the man is already on the Bench or already has
been on the Bench, which might be the analogy to be drawn from the
States that applies to the Federal Government. Absent the possibility,
perhaps even the constitutionality, of the nominating commission
at the Federal level, it would seem to me that this should be the func-
tion of the Senate and particularly the Senate Judiciary Committee,
in lieu of such a screening function. It is all the more important,
and this again addresses itself to the matter of what are the guidelines
that the committee ought to follow.
In an article that I did for the American Bar Association Journal
in 1970, 1 reviewe(l at that time the historical record of rejections by
the Senate of Supreme Court nominations by various Presidents.
There were 11 that were on record as having been specifically
rejected; there were 26 altogether who represented proposals of
nominations by the White House which, for one reason or another,
were not successful. Eleven of these were specifically rejected by a
recorded vote. A substantial number of offers were withdrawn by the
President when he saw the political handwriting on the wall. Still
others were a matter of the Senate euphemism called "postponements"
of action, which simply meant that the Senate had no intention of
taking action. This was usually when the end of a term was reasonably
What this says, I suppose, is that essentially, and perhaps desirably,
some political considerations in a nonpartisan sense, are factors in the
legislative review of the Executive proposals for the third judicial
branch. Political considerations, then, probably are unavoidable, and
perhaps desirable, and if that is so, I would voice what Dean Pollak
probably was too diplomatic to voice, and say that it is probably
politically opportune for all parties concerned to consider the can-
didacy of a well-qualified woman to the judiciary at this time. It
would certainly be the last major social factor to be addressed and
disposed of; thereafter, the question becomes academic.
I would hope that in the event of a woman candidate, once the
question of a woman's being capable of being nominated, politically
capable of being nominated, has been settled, the Senate committee
would address itself to qualifications with the same de(!ree of pragma-
tism and political consideration as well as professional' considerations
that it would use with reference to a man.
Among various terms that perhaps we can discuss in due course
would be this matter of collegial courtesy or senatorial courtesy, which
I would hope would not be equated with or considered to be synony-
mous with absence of painstaking scrutiny of the candidate in any
event. But the sum of what I wanted to say was essentially that it is
a political proceeding, it was undoubtedly considered from the begin-
ning as being a proceeding of high politics, and that this is essentially
the ultimate effect that we will have to keep in mind when the decision
is made in a pros pective case, whoever the individual happens to be.
Senator ABOIJREZK. Thank you, Professor.
Senator KENNEDY. I want to recognize the presence of Senator
Javits here who is a former member of the Judiciary Committee and
has been enormously interested in and involved in all of the considera-
tions of qualified individuals for the Supreme Court and in all of the
debates. We welcome you here.
Senator JAVITS. Thank you, Mr. Chairman.
Senator KENNEDY. We hope that you will participate to the extent
that you wish during the course of this sym posiin.
Our next panelist is Professor Alfred H. Kelly. Professor Kelly is
from Wayne State University and author of "The American Con-
stitution: Its Oriins and Development."
STATEMENT OF ALFRED H. KELLY, PROFESSOR,
WAYNE STATE UNIVERSITY
Mr. KELLY. Thank you, sir. It is an honor to be here. I appreciate it.
Let me make a statement which I think is almost the exact opposite,
in one respect, of which Mr. Meserve made. I would argue that it is
imperative that a Supreme Court appointee be a politician in the best
sense of the word, that he be a public man who has participated in the
public life of the Nation and that is aware of public issues and has parti-
cipated in that procedure, as we understand it, and that he knows
something of political reality as well as the technical aspects of the
I could approach that from a variety of different points of view. Just
sitting here and jotting as my colleagues here spoke, I have put down a
list of what might be called distinguished judges. Since I just did this
off the cuff, I cannot claim that they represent any exclusive list. But
the generalization that came to me as I thought about it, and I had
thought about it before, is that they do not represent any particular"
kind of public man, but they are all politicians in the best sense of the
word. Since they are dead, most of them or all of them, I suppose they
are statesmen now.
But, in their day, they were involved very much in the political
press: Marshall, a Congressman, a diplomat, as well as a practice L
lawyer; Story, a Congressman, a Republican politician; William
Johnson, State judge, Republican politician; Taney, a federalist politi-
cian, Jacksonian Cabinet officer who got his payoff on the deposits-
question; Chase, Democratic Conigressman, Lincoln's SecretaryTreas-
urer; Field, State judge; David Davis, Senator, the first ilarian,
Republican State judge; Hughes, before his first appointment,
former Governor of New York, before his first appointment, former
Governor of New York, before his second appointment, Presidelntiat
candidate and Secretary of State, Brandeis is almost the onlV% one
you can think of offhand, with one or two exceptions, who had not
held public office, but he was a public man in the extraordinary seise
of the word, anl certainly a politician.
Black, the U.S. Senator, and Stone, law professor and Cabinet officer.
Frankfurter, a public man, certainly as his writings revealed, even
though technically he had been a professor for the most part at Rar-
vard Law School.
Th e single thing that stands out in this list, and my colleagues here
could add to it, or subtract from it, is that those men all had ditlin-
guished careers as public figures. They understood the give and take
of the politics, they understood the political process, they had bn
successful at it. They knew that in a constitutional d1inaocracy there is
a reflex arc relationship between the people and the political pioce
and the responsibilities of office.
I do not think that can be put aside. I think it is naive to assume
that the President of the United States would not take into considera-
tion the element of politics in a nomination. I do not know the po1iLic-
of every nomination, and I doubt if anybody has studied them duit
closely, but of the principal ones that I can think of, both successful
and failures, the political aspect was prominent in the President
thinking, and it was also prominent in the Senate's thinking. I think it
is ridiculous to say that i would not be a factor.
There is a second reason why I think it is important to appoint a
public man. (The word politician seems to be tainted, so let us speak
of the prospective Justice more as a public man, although for me the
word politician is not tainted.) A public man is needed because of what
I as a constitutional historian, I would call the somewhat altered
character of judicial review. Now, I would argue that since the great
judicial crisis of 1937, and the period of judicial self-denial, which took
place for a time thereafter, that the Court has emerged as a new kind
of legislative body. I am using that term in a very broad way. The
court has taken on the task of solving certain social, political, consti-
tutional, and economic problems, which I am sure the Founding
Fathers thought of as being essentially legislative in character. I am
thinking of the Brown decision, for example. I am thinking of the birth
control decision of 1965, the Griswold decision. I am thinking of the
deci-ion Aith respect to abortion, I am thinking of the death penalty
decision. Those are public policy decisions, they are legislative deci-
,ion" in the highest sense of the word.
I know the word legislative here can be subjected to technical ob-
j(,c[timns, and I recognize that. But, what is involved here, if one reads,
for example, the death penalty opinions, is that they are a mixture of a
cosIderation of the technical, legal aspects of the ei(ghth amendment,
and whether or not it is subject to change through the judicial process
on constitutional growth. But there is also behind that a very heavy
mixture of public policy considerations.
Though technically, in the Browm opinion, the Court didn't do this,
nonetheless, if you look at the unanimous opinion of the Court in that
case, what one sees behind it is very clearly a public policy position.
What the Court is passing upon is an aspect of social revolution which
it is recognizing and which it is giving life to in the Constitution.
I cannot conceive of a President of the United States not taking this
factor into account, and I think it must be taken into account. And I
think the success or failure of a Judge on the Supreme Court comes
from whether or not he is a public figure in the highest sense of the
I keep saying the highest sense of the word. I do not mean in a
narrow, partisan, mean sense of the word, but perhaps a partisan in
the highest sense of the word also. I think if I were to describe Justice
Douglas' career, or Jus tice Black's career, or the second Justice
ilarlan's career, or the first Justice Harlan's career, I would say that
on the Court they were politicians in the highest sense of the word.
They were aware of the meaning of what they did and the conse-
qluences of their action on the growth of the social order, tle economic
or(ler, the political order, the political mix in the country, the thrust
anti direction of the American constitutional (lemocracy.
I think that a President of the United States and the Senate must
take that into consideration.
For the rest, I sub cmbe, I think, for the most part to the observa-
tions of my colleagues. And I will not detain you at length. I do think
that the observation that the time has conie to appoint a woman-
Senator ABOUREzK. Professor Kelley, may I interrupt you just a
moment before w )u go oil?
Mr. KELIY. Yes, sir.
Senator AmiOUREz. What vo have just finished describingg I think
i r a comi-nuation of the charge that is sometimes leveled at
the Supreme Court that it merely follows the election returns, and
perhaps anticipating them. You stated that all of these public men
were well aware of the effects of their decisions on politics and society.
Mr. KELLY. It is not quite the same thing, Senator, as saving
they followed the election returns. Though I think they often have.
I agree with Mr. Dooley on that subject.
. Senator ABOTJREZK. Yet, I wonder if that kind of a judge, then, is
able to make a decision, when he is aware that it might be a very
unpopular decision but nevertheless one that is just in terms of what
I guess you and I might think of as being a just decision. For example,
a desegregation decision which might be very unpopular politically
at the time, but the right thing to do. Would your criteria then allow
that kind of a Court or Justice to do that sort of a thing?
Mr. KELLY. I would even dare to apply the concept of independent
judgment to a United States Senator on occasions. That is to say,
I think the American political process at its best is not merely one in
which politicians are supposed to be stifled. I am aware they often
are, but I perfer to conceptualize the relationship as a reflex arc,
that is a United States Senator should be a molder and a leader of
public opinion, not just a siphoning process in a computer. I am aware
of the paradox that is involved in that in a democratic state.
Senator ABOUREZK. That phrase is used on the stump all of the
time, but in practical reality I do not see too much of it.
Mr. KELLY. Well, I think that as a Constitutional historian, I would
argue with you a little about that, but that is a little off the theme of
what we are getting at here. But, I would insist that a Judge of the
U.S. Supreme Court have the power to make independent and even
unpopular decisions. And my colleagues here also could give you a
list of a dozen decisions that were fraught with political implications
and which I think, on a majority basis in the United States in the
last 20 years, would have been voted down if they had been put to the
public. That does not mean that they were not political decisions.
By saying they are political, I do not mean that they reflect, in the
narrow sense, a computerized process of democratic development.
What I mean is that the man who makes them is aware of the process,
that constitutional law is dynamic, that is growing, that it has a
relationship to the thrust and the direction of the democratic process
and to the growth of the country at large. And he is aware of the
meaning of it in that sense of the word. I would certainly expect him
to have independence of mind, conviction, and philosophic awareness
of what he was doing. He has an appointment for life to protect him
against political reprisal and he certainly ought to be able to take
advantage of that.
I think one could take, for example, the decision on separation of
church and State. If the four or five decisions on separation of church
and State with respect to parochial schools in the last 5 years were
put to a popular vote in the three States that they have-affected the
most-Pennsylvania, New York, and Rhode Island-I think they
would have been voted down by a large majority. Yet those were
political decisions in terns of a thrust and direction which they gave
to the constitutional system.
I do not mean to say that they do not involve high questions of
principle about the nature and the character and the destiny of the
American constitutional system, because I think they did. One could
argue that, on. both sides, whether he disagreed or agreed. But, I also
think that they were public policy decisions with pfoun public
I think those Justices, from Chief Justice Marshall, who understood
this very, very well indeed, to Chief Justice Warren, who certainly
understood it also, have been the most successful as Justices on the
Court. I do not think we ought to shy away from the political observa-
tion about the Court or the character of a political appointment.
Beyond that, it seems to me that these men come from every conceiv-
able kind of background. And one thing that stands out is that they
have not been particularly experienced in the judical process in the
narrow sense of the word.
I deliberately gave you a list of men that does not include a single
appellate or district judge, on the Federal level. We could put another
list along vith them. There obviously have been some great appellate
judges that went to the Court, Taft, Holmes, Cardo, White and
so on, and someone could lengthen that list greatly.
But, the important fact is that many Justices have often been
politicians, that is to say men whose roles have been that of gis'lators,
Congressmen, Governors, or Senators and the like; these men have
more often than not, I think, been the stuff out of which the ereat
Justices have come. And I would argue that that is not an accident,
that they have understood the political proces and what the role of
the Court was. And I would argue also although this is a hge
controversial point, that the changed character of judicial review has
caused the Court to take over certain legislative functions, with
respect to which le islatures themselves seem to be paralyzed. I mean,
for example, the Baker decision with respect to apport ment. The
fact that the Justices performed that function now (it can be argued
that they always have, but they certainly perform it now) makes it
more important than ever that the Preident appoint and you contirm
a public man.
I have ideas about a lot of these other questi on, too, but I have
spken long enough.
Senator KENNEDY. Thank you Professor Kelly. Professor Howard,
we are (lefighted to have you here. Professor Howard is professor of
law at the Unveisity of Virginia, author of many articles on Justices
Black an(l Powell, and currently writing a book on "The Burger
Court." Antid we will not hold the fact that you are al old clssmate
of senator Tunney's and mine against you.
STATEMENT OF A. E. DICK IowARD, PROFESSOR, UNIVERssTY OF
VIRGINIA SCHOOL OF LAW
Mr. HowAII), Like my colleagues here, i hrve no prepared state-
nIent or remarks. BEit your iltrodlictory statement and that of
eiator A!)oure(zk suggest to umw two fundamental (questions whih
ill my juldgient would concern you N d your(colleagues on the Senate
Judiciary ( 'onmttee.
One of those que-tions is the e'eial and legitimate role of the
ttiIdOittle a,11 (1 the full Senate in tnaing on a nominee: to wl'at
extent I- the Senate to collceive of it'elf as Iwin.lan equ1l and full
partner in the lrovess of seeing who goes oIl the U.S, pt Court.
The other question is one that has been addressed at greater length
here today: by what criteria do you make that judgment in passing
on a nominee.
The first question ned not detain us very long. A good deal could
be said about it. There have been times in history when one might
have thought that the Senate had slid into a somewhat junior partner
kind of role-that unless the nominee were extravagantly out of
the bal park, unless he were grievously unqualified and flawed in
some singular way, then the Presidential nominee ought to be con-
firmed. Were we sitting here 10 years ago, one might well have argued
that, whatever the original intention of the Framers of article II,
the convention had arisen, especially in the early part of this century,
of a generous presumption in favor of a nominee, with the result that
only clearly unqualified nominees would be rejected. I think the
events of, the last few years have cleared the air on that point. The
Senate has properly reasserted itself as having a full and plenary
role to play along with the President, who makes the nomination.
There is nothing in the text of the Constitution, there is nothing
in the Philadelphia debates of 1787, nothing in the Federalist Papers,
nothing in short in the Constitution's text or history which requires
the Senate to assume a deferential role. Moreover, it seems to me
that not only constitutional law, but also good public policy will
argue in favor of thorough senatorial review. The Senate, after all,
witl find its legislation passed on by the Court as much as the Executive
will find its actions under review. That alone argues for your taking
great care with nominees.
So, I will not linger on that point, unless perhaps later on you have
some questions about it.
Let me turn, therefore, to the question which has been more fully
addressed by my colleagues on the panel: the question, by what
criteria should the Senate pass on a nominee, what qualifications
should one take into account-ethics, integrity, professional com-
petence, age, geography, race, religion, sex, politics, partisanship,
and so forth. In my judgment, to answer that kind of question, one
would do well to begin with some assumptions about what one thinks
the Supreme Court is there to do. For me the criteria which, were
I sitting on the Judiciary Committee, I would use would turn on some
underlying assumptions about the Court.
For example, if one conceives the Court as sitting essentially as
lower courts sit-trial courts, State courts, Federal district courts-
as a court to try cases and give a legal judgment, if that is the kind
of court the Supreme Court is, then one is primarily concerned about
professional qualifications in the narrowest sense.. That is to say, able
lawyers with good credentials, with first-class legal reputations,
respected at the bar, men of intellectual, legal, professional sharpness
who can decide on a set of facts, make a judgment, and write a
persuasive opinion. There is some element of that in the work of
the Supreme Court, and to that extent a nonlawyer might well be
handicapped on the Court.
But one tends to be so engaged by the cases that have great public
interest-church-and-State cases, free speech cases, civil rights cases-
that. one tends to overlook the fact that a great range of very tech-
nical decisions come out of the Court-labor, antitrust, regulatory
agencies, and so forth. In cases of that kind, the nonconstitutional
part of the Court's business, lawyerly abilities become more im-
But, surely, nobody living in 1975 can suppose that all the Court
does is decide cases between litigants. The Supreme Court is not like
Felix Frankfurther and others who have written about the Court
have persuasively driven home the point that appointees who go
from other courts to the Supreme Court find that it is a new ball game,
it is not the one they played when they were on the New York Court
of Appeals, or the Federal District 0ourt, or the Circuit Court of
Appeals. That being the case, one has to take into account the zorts
of things Professor Kelly had in mind; namely, that the Supreme Court
is a court that does more than simply decide cases in the narrow, legal
fashion. It is a Court that mediates between tradition an change,
a Court that preserves the best of law and social heritage, but that
also tries to accommodate the body of law and justice to changing
needs and changing perceptions.
What one is looking for, therefore, is more nearly the public kind
of person, the person who has had to deal with important public issues.
There is yet a third way to view the Court, which is important, too.
It is perhaps what Dean Pollak had i mind, that is, that the Court is
all of the things I have just mentioned, but it is also a mirror of the
American people. People whose aspirations are thought to be sub-
merged in this country look ultimately to that tribunal as the outlet
for some of their frustrations. It would be difficult for me to imagine
the Supreme Court in modern times-when they have dealt with
street demonstrations, with sit-ins, and with so many other racial
questions that perculated up to the highest Court -to iimagine that
Court never having had a black member. I am thoroughly grateful
that Thurgood Marshall has sat on the Court during much of this
period 1i our history, not so much so for the precise votes that he cast
in l)articular cases, but rather because black citizens can perceive a
court that i. not a lilywhite court, not a court for white people only.
To that extent, I think it would be useful, whether with this nomina-
tion or some other, to see a woman sit on the Court; then that lat
significant social barrier would fall. It seems to ie, however, that one
is mistaken if ihe 1)icks ind chooses among those models of the Court
ad decides on only one that he is going to follow.
Since the Cort is a law court and (lec(des cases, SIc it is a mirror
of the people and, therefore,, to that extent, has a representative
quality, and since it is finally and perhaps more fundamentally a
mediator of social change, arguably legi-latie .-since it i- all of
tZoe things, then ideally one judges nominees with all of those ods
Regarding Mr. Reserve's assumption: as to professional credentials
you do want a man other lawyers will respeIc as- a good !awyer- if
indeed, the nominee is a lawyer. And as I said a moment ago, there
is somie hurdlen if the 1ian (w1 w(o:I-an i not a lawyer. As to "repre-
seitative" qualities, I woul try not to hang ut) too iiiuiclI on S)ecifics
of race, religion, sex, geography, and the rest. I would try to subsme
those in some larger approach, looking for the kind of nominee who
ia puic person and who has dealt with public issues.....
I would reject the argument that a nominee must have sat on a
lower court, have been a judge before he came to the Supreme Court.
I would reject the argument that he must have been a practicing
lawyer, as opposed to an academic or other kind of lawyer. I would
reject the argument that a politician, whether he sat in the Congress
or somewhere else, was not the best person to choose. I would say
now that there, is a common denominator cutting across those pigeon-
holes and categories; that common denominator is a breadth of
experience and vision attained by a person who, in one way or
another-in practice, politics, a lower court, or whatever-has had
to engage himself with fundamental and important issues of a kind
that would characterize the work of the Supreme Court.
Senator KENNEDY. Very, very fine indeed.
We have been talking about the public figure, the importance of'
such an experience in terms of service on the Court.
Let me ask Professor Swindler whether in view of the recent pay
increases in the Supreme Court, whether the emoluments clause of
the Constitution automatically disqualifies a sitting Senator or
Congressman to appointment to the present vacancy?
Mr. SWINDLER. My personal opinion is that it does, indeed-for
two reasons: one, that it was an across the board pay increase and
any rollback for a specific individual would be conspicuously an
accommodation for that individual or the political pressures behind
him; the other, because it would establish a remarkable precedent, I
think, for varying salary scales on the Supreme Court, granted that
this discrepancy might be remedied at the normal end of that particu--
lar Senator's term, or Congressman's congressional term.
The case of William Paterson is a striking one here. You may recall
that President George Washington nominated Paterson among the
first six Justices of the Supreme Court that had been created by the
first judicial act, and before the, Senate could even address itself to his
qualifications, apparently the Senate did not concern itself with this at
all, all of them were approved immediately, but before the Senate could
act on Paterson, his name was withdrawn because it was called to
Washington's attention that Senator Paterson had been a Member of
the First Congress which passed the acts creating the Federal judiciary.
He was in the second class of Senators who served only 4 years;
therefore, when his 4 years were over, which was a matter of just a few
months later, he was again nominated and duly confirmed.
It would seem to me that under the present circumstances you have
one course of action which is self-defeating, and that is to roll back all of
the salaries of the Federal judges, and when the Chief Justice is saving,
he cannot retain people in office with what was proposed, then I do
not think you will have any if you were to roll them all back.
The other is that-
Mr. POLLAK. That would be unconstitutional, would it not?
Mr. SWINDLER. Well, I suppose you could repeal the statutes and:
pass new statutes. But in any event, you certainly have this problem
of having Associate Justices who, from the very beginning-I believe
the first salary scale was $4,000 apiece, and they were considered to be
substantially overpaid-have always had the same salary, and so I
should think that as a matter of fiscal tradition, if for no other and
better reason, this would be undesirable and perhaps a total barrier..
Senator KENNEDY. You spoke about the individual statute that
could be pased to permit an individual to be able to circumvent this
requirement. Do you feel that would be constitutional?
Mr. SWINDLER. 'Yes.
Senator KENNEDY. Yes, to eliminate the application of the pay
increawe for a particular individual?
Mr. SWINDLER. I am not sure what Dean Pollakhad in mind in
terms of the constitutional objection. It would seem to me that a
general judicial salary increase could certainly have had in it certain
exceptions, and it would be extended only to certain branches of the
Seiiator ABOUREZK. I do not have a copy of the Constitution here,
but I think it says that the salary shall not be diminished during his
term of office, and that is in the Constitution.
MN1. POLLAK. That was my problem, Senator. Any reduction in the
general level of the judicial salaries would simply confront that
in- rountable barrier.
Senator ABOUREZK. And Attorney General Saxbe, you will recall,
when he was appointed out of the Senate, he had to tae a cut inpay,
and then we pa sed i a law to take care of him after he got out of the
Senate. But I do not think you could do that with the Court with
that constitutional provision. I do not think that even would be
Mr. SWINDLER. I certainly agree. I understand his point now. I
Senator KENNEDY. Perhaps the panel could talk about some of
the examples of Presidents who conducted a search for the best
individuals to serve on the Supreme Court. What did they do, and
are there any lessons that we could learn from that experience?
Mr. SWINDLER. I believe, Senator Kennedy, you were inquiring
about the historical record of procedures that Presidents have followed
in seeking the best. My own matured reflection and conclusion after
st dying at least the processes for the period of the second century of
the (Court, from 1889, has been that this is lipservice that is paid, that
when Presidents are seeking an outstanding candidate, particularly
for the Supreme Court, they are seeking the best in the context of the
political or philosophical accommodations they have already set up
as their OwN personal criteria. Jt may be true that Judge Cardozo was
0(C,,olmnlenlded by an almost unanimous academic and professional
'11mmnty, and that this amounted to a pressure that President
Hover ICcognized. But at the same time this would be a conspicuous
exception, I suspect.
Senator KENNE)Y. Do any of the others on the panel want to make
an) v comments?
Mr. IOWARD. Senator, it seems to me that the process of selecting
a nominee, especially to the Supreme Court, is not likely to be non-
political. I think it is unrealistic to suppose that politics, in whatever
sense, never enters in. That means that the lesson to be learned, to
borrow your phrase, to not so much trying, as a citizen, to give advice
to the President. on how he should come up with his nominee and how
he should fashion the search and what criteria le should us. The
lesson emphasizes that the process, while a search for the best person,
aio has political connotations. Both parties to that search-the
PIei-dent, who niomainates and the Senate, which confirms or rejects-
enter into a process which brings out as much as one can learn about
the person who was, in fact, put in nomination.
There have been some useful examples in recent years of the Senate's
serving the role of bringing information to the public's, as well as
their own attention, information which might not have come out in
the first place.
Senator KENNEDY. I know Dean Pollak has to leave shortly, but
let me ask you a question. Would it not make some sense for the Presi-
dent to publish a list of names that he is thinking about so that you
can get some comments from different groups on these individuals so
that the President could make a final judgment? Would that not serve
a useful purpose rather than just trying to keep the list quiet or secret,
and then finally revealing one and popping it on the Senate?
Mr. POLLAK. You are suggesting, Senator, that the President would
publicly state that he is interested in and has asked for professional
Senator KENNEDY. Suppose there are 10 different names that the
President is going to choose from, unless of course some other name
comes up by some other kind of means. He asked the Bar Association
for their comments. Why would one want to keep them secret and then
make the recommendation? Is that useful in terms of the American
Mr. POLLAK. Well, I guess I don't have a very strong view either
way. I can certainly see that one would, as President, rather wish not
to be, by publishing the names of 10 or a dozen possible appointees, the
center of essentially a lobbying process in which groups begin to form
to propose or to support or to attack a particular nominee. I am think-
ing beyond the question of what this may do for the particular persons
that are in this public tug of wax. I am really thinking that the Presi-
dent's ultimate freedom of action and freedom of sensible judgment
may be prejudiced.
On the whole, I guess I do see some merit in your thought, Senator.
I guess I am still a little more comfortable with the idea of having this
scrutiny directed to the nominee after the President puts forward a
May I slightly change the subject, Senator, to go back to one of the
other matters, because I am about to depart? I simply wanted to say
with respect to this discussion which we have all had as to the qualifica-
tions, I fully subscribe to what I think my colleagues have said about
the public person aspect of a nominee, I don't think we ought to be
understood as saying, that the role of the Court with respect to its
larger, for the most part constitutional domain is really just a higher
form or more elegant form of legislating. That was implicit in Senator
Abourezk's original question, I think, to Professor Kelly. I do not
mean that Senator Abourezk was embracing that concept, but he
was putting that concept before us. It is a part of the general criticism
of the Court. From my point of view, it has been an unwarranted
and essentially an inappropriate generalization of what the Court
is there for, and what, in fact, it has been doing although there may
be particular cases to support this view. And I precisely subscribe
to the observations made by Professor Kelly that if one gets a public
person such as Governor Warren, if you will, when he has the Consti-
tution in his custody, he will not be the reflex of the ordinary public
opinion processes but will vindicate constitutional values wherever
the chips may fall.
So the Court's role is really a very different one from this body's,
if you will, and properly so. fBut it is one of making ultimate policy
choices for the country at the higlest levels, and that is why one
wants a person of the greatest breadth. That breadth may be obtained
in political life, it may be obtained in law practice, it may be obtained
in teaching, as with Justice Frankfurter, or even as a State court
judge, as with Holmes and Cardozo. There is no single definition of
the right profile.
If you will excuse me, Senator, I have to go.
Senator KENNEDY. I do not know whether the other- wish to
comment on the publication of the list. If we are talking about
involving the public in the process, it may be looked upon as lobbying
or subjecting these individuals to the worst aspects of political life.
Hopefully you are subjecting them to the best aspects. Through this
kind of a free flow of comments, suggestions, or observations about
them, the people best qualified would emerge and there would be a
natural process by which the President would make a recommenda-
tion; and the Congress and the Senate would embrace it.
But I don't know. Do any of you have comments on the open
Mr. SWINDLER. One think I might say, Senator Kennedy, is that
this does become a matter of political manipulation and political
gamesmanship, if you will, when the names are not officially an-
nounced. In almost all cases, they will all be known, thanks to the
ingenuity of the media. When I used to be a newspaperman I heard
a phrase use(d in Washington that nothing is easier to cover than a
secret meeting. I suspect that that still obtains.
One thing that worries me is that there seem to be two groups of
names tat the Prei(lent-any President-tends to allow to be
leaked out without his committing himself to one or the other. One
group is a group that is submitted to the American Bar Association
for professional review. A member of the judiciary or the standing
committee of the ABA phoned me about a week ago and read me the
names in confidence because he was soliciting some evaluations, and
he said to keep this very confidential. The very next morning the
entire list was in the Washington Post. And f phoned him to tell
him that I did not give anyone the list. As a former newspaperman
I was not surprised that it was there.
The other group of names apparently is a g-oup of names that
floats past the influential mnenibers of the President's own party, and
apparently their political acceptability is being sought, I assume, so
that somewhere in the processes of determining the specific candidate,
the White House is trying to find the name that happens to surface
most favorably in both the ABA's scrutiny and in the party's scrutiny.
[ suggest that HIt may not alwivs happen. Thereis adiculty, it
seems ) me, an(l perhaps this is what you have in mind, of a President
deliberatly using both the ABA and the media to conceal his ultimate
candidate. As I recall, when the last two nominations were made for
the positions now held by -jutices Powell and Rehnquist, every other
Me11 except those names found their way into the media, and the ABA
went to a considerable length, apparently, to evaluate some of these
and to hasten to say that some of them were not acceptable.
But as far as I know, the ABA did not have any invitation to con-
sider either of the men who actually were nominated. And this is an
example of perhaps Presidential manipulation of the media, and perhaps
this could be avoided if a commitment to make all of the names public
were made. I suspect it would be politically unacceptable to the White
Senator KENNEDY. Mr. Kelly or Mr. Howard, do you have any
Mr. KELLY. I think, Senator Kennedy, you are suggesting something
perhaps quite different than has ever been done before. My tentative
reaction when you suggested this was to say that the idea was an un-
fortunate one. Many Presidents in the past have floated names; to
mix up my metaphors, they have floated them both to the surface with
the press and they have floated them underground through Congress,
or newspapermen, in a confidential way. Franklin Delano Roosevelt
did that; Harding did it regularly, and so on. Maybe it's inevitable
that that process happens, and I do not think you are going to stop
Presidents from seeking advice.
Some of them, such as Harding, for example, even turned to the
Supreme Court to get advice, although Taft's relationship with Hard-
ing in that respect was not very successful. But certainly when Presi-
dent Nixon attempted in a kind of way to publish a list, gave it to the
B,! Association and implied that his nomination somehow would come
from there, and when the nominations leaked to the press, the result,
and I am thinking of that summer of 1970, somehow had a bad effect
both for the President and for the United States. Maybe that was in-
trinsic in the peculiar political circumstances of the Presidency at that
moment. But it had a bad effect for the Presidency of the United
States and it had a bad effect, I think, for the Bar Association. The
process didn't work well.
Now, maybe if it were a formal public statement to the U.S. Senate
of a list which the President had already worked out, in which he said
I have privately cleared these names and they are now before you for
your consideration, I do not promise to nominate from this list, but I
should like your reaction, what you are really doing is suggesting that
the phrase "advice" in the Constitution be invigorated for the first
time in 180 years. As a constitutional historian, I would observe that
that word "advice" started to die in the Washington administration,
and except for occasional threats of one kind or another, it has been
pretty much left alone ever since that time, never having had any real
substance to it as a formal constitutional process since the famous
confrontation between Washington and the Senate in 1789. And as a
constitutional historian, I would even argue that probably the prem-
ise of the convention with respect to the role of the Senate when it
used that word was that of the Senate as an advisory body in the sense
that upper houses had a cabinet function in colonial times, and obvi-
ously the growth of the Senate, plus the tradition of the separation of
powers, more or less destroyed that function. And it has never had it.
And one can certainly understand the attempt and the interest of the
Senate of the United States in restoring that word with some vigor.
Conceivably this process you speak of would have meaning if it were
done not as a legal process but as a formal public statement.
I. think your difficulty, Senator, would be that the President of the
United States would think himself limited by the process m a way
that he might find politically unacceptable.
Mr. HOWARD. Senator, my reaction parallels that of Professor
Kelly. I believe the suggestion you are airing might require sne re-
adjustments, of constitutional assumptions about the sepaation of
powers. Therein lies one's hesitancy about it. If one had thing but
the text of the Constitution before him, the advise and consent
language might suggest more than has come to be the case. I think
the 'ad vice" part has atrophied, and what you are really talking about
is consent. Therefore, one either has to pass a statute forcing the
President to come up with a public list, a procedure about which one
might have constitutional reservations, or one simply hopes that the
President Will do it, in which case I suspect that the politics of the
situation may prevail.
Senator KENNEDY. Senator Mathias has joined us here this morn-
ing. Senator Mathias has joined With Senator Abourezk and myself
in sponsoring this particular meeting this morning.
Before yielding to Senator Mathias and Senator Abourezk, I want to
extend my very warm sense of appreciation to our panel here this
morning for the obvious thoughtful considerations that you have been
gi-vng these issues. I think they will be helpful to us on this committee,
and hopefully they will be helpful to the Senate as we try to fill our
responsibilities in meeting the constitutional requirements of advice
and consent on the next nominee. I think this meeting has been
useful and helpful. I was asked by one of our colleagues when we
were talking about this in the Judiciary Committee whether we would
hope to extend this kind of a ventilation of both history and consti-
tutional understanding to other appointive offices that would be
before this committee, and I think it may very well be helpful and
useful in trying to establish criteria or at least some guidelines in
the areas of other Federal judges or U.S. attorneys or others.
We are not making a decision on that today, but I just wanted to
indicate to our panel how much I personally vahle your comments and
your ideas and thoughts on this, and I wanted to say I appreciate your
willingness to share your experience with us here this morning.
I want to thank you and yield to Senator Mathias and Senator
Senaltr MATHTAS. Well, I join with Senator Kennedy in thanking
everyone who has participated in the panel. And I think we should
confe s that we have some selfish motives in stimulating this panel,
the selfish motives being ] think we are trying to lock the stable
before the horse is out of it. Those of us who have spent many painful
hours in this very room during some of the Supreme Court nomination
hearings, have found the responsibility of withholding consent
necessary, but not a pleasant experience. We would like to avoid
that by building into the system whatever new and more thoughtful
procedures can be devised.
Now, there are those, of course, who have objected even to this very
formal proceeding on the grounds that it might invade the Exetutive
prerogative. I think that is nonsense. I think we are entitled, if we feel
the need, to develop a checklist of items that we might want to cowider
when nominees come before us. And I think it has some value to do it
in advance when it is a completely objective and impersonal exercise.
I do not think it binds members of the committee or the Members
of the Senate, because obviously Senator Abourezk may put more or
higher priority on some items on the checklist than I would, and vice
versa. But the value would be that there was a checklist against which
every nominee could be impartially and impersonally measured. I
think this could be helpful, and I think that this is a proper function
of the Senate in the discharge of its portion of the appointment power.
So, I am grateful to you, and I merely regret that I did not have
more opportunity to be here earlier. I was locked up with the CIA
Committee in an airtight chamber with the Secretary of State all
morning, and it was very difficult to escape. But we are nonetheless
grateful, and I will review the record with great interest.
Senator ABOUREZK. In reflecting bn the checklists that all of you
have provided and, of course, the political requisites that President
Ford is faced with in an election year, my only comment is that it is
too bad that Nancy Reagan is not a lawyer.
In a serious vein, this has been highly enlightening for me and I
cannot thank you enough for the great service you have performed in
providing advice not only to those of us here, but those Members of
the Senate who will read about what you have said in the press and in
the committee print that we are going to provide. I want to express my
This meeting is adjourned.
[Whereupon, at 1:05 p.m., the symposium adjourned.]
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