Mr. SHAN KROFF. I am basing my information-
SHANKROFF.

Senator O'MAHONEY. The receiver was Mr. Hospelhorn.

Mr. SHANKROFF. That is right.

Senator O'MAHONEY. The nominee was an officer of the court, Mr. Sobeloff.

Mr. SHANKROFF. Right.

Senator O'MAHONEY. Do you want to testify about him?

Mr. SHANKROFF. That is right.

Senator O'MAHONEY. What do you want to testify about him? What did he do?

Mr. SHANKROFF. Well, I think it would be better if you would permit me to read what I have gotten from the records, so that it will be clearer.

Senator O'MAHONEY. We are not interested, sir, in your interpretation of the records.

Mr. SHANKROFF. I am not interpreteing them. I am just repeating

Senator O'MAHONEY. You are not here under subpena, you were not subpenaed, you understand.

Mr. SHANKROFF. That is right.

Senator O'MAHONEY. You are here as a volunteer

Mr. SHANKROFF. That is right.

Senator O'MAHONEY (continuing). To testify in response to the order issued by this committee for persons who desire to testify with respect to the nominee, and not with respect to the records, don't you see. They are two different subjects.

Mr. SHANKROFF. Well, I am basing all my statement on the records, but I want to say this

Senator O'MAHONEY. I will ask the committee whether or not there is any objection to the ruling of the Chair that the testimony of this witness with respect to the records is irrelevant at this time.

Senator WATKINS. It seems to me that is true.

Mr. SHANKROFF. All right.

Senator O'MAHONEY. And it is so ordered, you may not testify about the records.

Mr. SHANKROFF. May I say this: You asked me whether I have testimony other than reference to the Mathieson Building, that 34-story building.

Senator O'MAHONEY. You answered me, and my ruling is in accordance with your answer.

Mr. SHANKROFF. Now, there are 15-
Senator O'MAHONEY. I asked

with respect to Mr. Sobeloff.

you whether you have any testimony

Mr. SHANKROFF. I want to say this: There are 15 actions in Circuit Court No. 2, and 6 actions in the Baltimore City Court, involving something like $150 million of charges against directors and officers. That was settled for $205,000, and that is the only thing that was gained by the receivership, and out

is

Senator O'MAHONEY. No. The undisputed testimony here, sir,

Mr. SHANKROFF. Sir?

Senator O'MAHONEY. The undisputed testimony here is that more than 70 cents on the dollar was recovered

Mr. SHANKROFF. Not by Mr. Sobeloff.

Senator O'MAHONEY (continuing). Was recovered in the administration of this receivership.

Mr. SHANKROFF. That is right.

Senator O'MAHONEY. It was not the business of Mr. Sobeloff.

Now, unless you testify about Mr. Sobeloff, I will have to ask you to leave the chair.

Mr. SHANKROFF. That is what I want to testify to, in reference to Mr. Sobeloff.

Senator O'MAHONEY. You testified first you do not know the man.. Mr. SHANKROFF. Well, I don't have to know the man to know what he did in the matter that appears in the record.

Senator O'MAHONEY. You are not qualified to testify about the records, and it is so ordered. Will you please leave the stand?

Mr. SHANKROFF. I am not going to dispute your decision, but I say that this is a public hearing, and I believe that I have something important to say. But I am not going to fight.

Senator O'MAHONEY. You may file a memorandum with the committee, sir.

(The statement subsequently filed by Mr. Shankroff was made a part of the record of hearing held May 22, 1956.)

Senator O'MAHONEY. Senator Hennings, a member of this subcommittee, expressed to me the desire to have a statement made at this hearing. His administrative assistant, Mr. Langdon West, is here.. Do you have a statement from Senator Hennings?

Mr. WEST. I have.

Senator O'MAHONEY. Will you please make the statement?

Mr. WEST. Senator Hennings' statement is as follows:

Mr. Chairman, I desire to place in the record of these proceedings a statement concerning this hearing.

I have been a member of this particular select subcommittee since its creation on January 25, 1956, and have been ready and anxious to proceed with the matter since that time, and have spoken to the chairman of the subcommittee on a number of occasions urging that the matter be expedited.

On April 23, 1956, notice was given that this hearing was scheduled for Thursday, May 3, 1956. Following the death of Senator Barkley last Monday, the chairman, on Tuesday evening, May 1, 1956, sent notice to my office that the hearing would be postponed until this morning at 10:30 a. m., owing to the death of Senator Barkley.

When this notice was brought to my attention, I sent the chairman a letter indicating that I was deeply interested in the nomination of Judge Sobeloff, that I had prepared my schedule to attend the hearing set for Thursday, May 3, but, of course, I understood that the hearing would have to be postponed because of Senator Barkley's funeral, and requesting that the hearing be set for any day next week.

I also indicated that in any case, if the hearing were held and the nomination considered, the chairman was authorized to use this letter as my proxy to make a favorable report on the nomination of Judge Sobeloff.

Thereafter, I instructed by administrative assistant, Mr. Langdon West, to telephone the chairman, reiterating my deep interest in the nomination and my desire to be present during the course of any hearings, and that I had a long-standing engagement away from Washington today and would be unable to attend the hearing if it were held today, and that I would be glad to meet any time during the day or evening next week if the chairman would set the hearing over to such time.

My assistant has informed me that he gave my message to the chairman's office on at least two occasions.

I wish to reiterate my deep interest in this matter, and my regret that this hearing could not be postponed until a day or evening next week.

That is all of the statement.

You also, of course, have the letter.

Senator BEALL. Mr. Chairman.

Senator O'MAHONEY. Senator Beall?

Senator BEALL. I have a request from Congressman Edward T. Miller, who intended to be here this morning but is out of town because of a death, on the Eastern Shore, and he asked me to say that he, Congressman Miller, has been a member of the Maryland bar since 1920, and has had many contacts and has been able to observe Judge Sobeloff.

He has known the judge, who has served in various public roles, and knows him to be an unusually able lawyer, a man of utmost integrity and good character.

He feels it is highly desirable that the judge be confirmed.
That is from Congressman Miller.

Senator O'MAHONEY. Thank you, Senator Beall.

Senator Ervin, of North Carolina, had planned to be at this meeting today. He was prevented by illness. His administrative assistant, Mr. Spain, is here.

Do you care to make a statement, sir, on behalf of Senator Ervin? Mr. SPAIN. The only thing, Mrs. Ervin called me, and I know Senator Ervin is scheduled to appear here this morning. She called me this morning and said he could hardly whisper, and he wanted me to come here and file a letter of request that you not adjourn this hearing, but that you recess to a later date so he could make a statement, as he wanted to appear in person in opposition to the confirmation. Senator Ervin will speak and appear and state what he wishes to say extemporaneously. I do not have a prepared statement. He will not have one prepared when he comes. But that is his request, and I will leave a letter that I signed.

Senator O'MAHONEY. The committee will receive the letter.
Mr. SPAIN. Thank you very much.

Senator O'MAHONEY. Thank you very much, Mr. Spain.
(The letter referred to is as follows:)

Hon. JOSEPH C. O'MAHONEY,

UNITED STATES SENATE,
COMMITTEE ON ARMED SERVICES,

May 5, 1956.

Chairman, Special Subcommittee To Investigate the Nomination of Simon E. Sobeloff, United States Senate, Washington, D. C.

DEAR SENATOR O'MAHONEY: Senator Ervin was scheduled to appear this morning before your subcommittee in opposition to the confirmation of Mr. Simon E. Sobeloff as a member of the Fourth Circuit Court of Appeals.

Due to a severe cold and a case of laryngitis, he is unable to speak above a whisper and has requested that you recess the hearing today until a later date in order that he might appear in person to give evidence why Mr. Sobeloff should not be confirmed.

Sincerely yours,

JACK SPAIN, Administrative Assistant.

Senator O'MAHONEY. I have the following letter from Senator Stennis, of Mississippi, dated May 4:

A speaking engagement outside the city tomorrow will prevent my being present for your hearing on the nomination of Mr. Sobeloff.

Enclosed is a prepared statement, which I shall appreciate your making a part of the official record of your hearings.

With all good wishes, I am,

Sincerely yours,

JOHN STENNIS.

In accordance with the request of Senator Stennis, this statement will be made a part of the record.

(The statement of Senator Stennis is as follows:)

STATEMENT BY UNITED STATES SENATOR JOHN STENNIS

Mr. President, I shall not vote to confirm the nomination of Hon. Simon E. Sobeloff as judge of the Court of Appeals of the Fourth Circuit. The reasons which dictate this course of action to me are drawn from the speeches, public utterances and record of the nominiee.

Although he has had judicial experience in the Court of Appeals of Maryland, he advocates a judicial philosophy wholly foreign to the American constitutional concept. There is no more firmly rooted concept in American law than that of the separation of the three branches of the Government. While it is natural for members of the legal profession to revere the judicial branch, it is still an aberration when one would deliberately advocate usurpation of the powers of other branches of the Government by the judicial branch. Loyalty and devotion to the court and the American court system do not go that far. The nominee, in an address before the Judicial Conference of the Fourth Circuit, flatly states, and apparently accepts, the concept of the Supreme Court as a formulator of national policy: "The Court may reject a case, not because the question is unimportant, but because it thinks the time is not ripe for decision. In our system the Supreme Court is not merely the adjudicator of controversies, but in the process of adjudication it is in many instances the final formulator of national policy."

By declaring that the Supreme Court is the formulator of national policy and that it also chooses the proper time to announce decisions on controversial issues, he grounds Supreme Court decisions on the current tenor of public opinion rather than the rich heritage of constitutional law which has been built since 1787.

The legislative branch is, of course, constitutionally the instrument of policy under our form of Government, with the executive and judicial branches established to assure administration of national policy as established by our law. Some judge-made law in the legislative sense is perhaps inevitable, but the judicial branch should never be the moving force behind revolutionary social and economic changes in our Government.

The judicial branch has consistently moved more and more into the legislative field, and it has been necessary in at least 10 cases in the last 20 years for Congress to enact legislation to reverse judicial legislation. The cases and the subsequent acts of Congress since 1935 includes Kessler v. Strecker (307 U. S. 22 (1939), 54 Stat. 673 (deportation of alien Communists)); United States v. South Eastern Underwriters Association (322 U. S. 533 (1944), 59 Stat. 33 (regulation of insurance companies)); Anderson v. Mt. Clments Pottery Co. (328 U. S. 680 (1946), 63 Stat. 910 (portal-to-portal pay)); Dobson v. Commissioner (320 U. S. 489 (1943), 62 Stat. 991 (review of Tax Court decisions)); Wong Yang Sung v. McGrath (339 U. S. 33 (1950), 64 Stat. 1048 (application of Administrative Procedure Act to exclusion or deportation of aliens)); Schwegmann Bros. v. Calvert Distillers Corp. (341 U. S. 384 (1951), 66 Stat. 631 (Fair Trade Acts, resale price maintenance)); United States v. California (332 U. S. 19 (1947)); United States v. Louisiana '339 U. S. 699 (1950)); United States v. Texas (339 U. S. 707 (1950), 67 Stat. 29 (submerged lands)); United States v. Wunderlich (342 U. S. 98 (1951), 68 Stat. 81 (finality clauses in Government contracts)); Federal Power Commission v. East Ohio Gas Co. (338 U. S. 464 (1950), 68 Stat. 36 (regulation of gas distributing companies)); and United States v. State of Wyoming and the Ohio Oil Co. (331 U. S. 440 (1947), 62 Stat. 1233 (lands held and developed in good faith)).

Besides invading the legislative field, the Court has also upset its own body of case law to the extent that judicial precedent probably means less in the Supreme Court of the United States than in any other court, State of Federal, in the country. Overruling of case law is inevitable in the growth of a country and in the tremendous advances made in technology and education during the past 2 centuries. From 1789 until 1932 only 29 Supreme Court cases were overruled by the Supreme Court, while from 1932 to 1955, 36 of its cases were overruled by that same Court. This is symptomatic of the philosophy advocated by Mr. Sobeloff. It represents a change in our governmental concept, resulting in centralization of Government, invasion of the

reserved rights of the States, and diminution of the effect of representative government.

This trend should be reversed rather than augmented. It must be reversed if even remnants of the rights reserved to the States are to be preserved and the legislative powers of the Congress protected.

I do not think that confirmation of an appointee who has given us fair warning of his unusual philosophy of our form of Government would be in the best interest of the Nation.

Senator O'MAHONEY. I have, or at least the committee has, a list of 110 letters with respect to the nomination of Mr. Sobeloff. These letters are all part of the record. They include protests against the nomination, which seem to be in the main based upon the participation of Mr. Sobeloff in the presentation to the Supreme Court of the recent case which resulted in the decision of the Supreme Court with respect to segregation.

These letters are all on record for the consideration of the committee. It will not be necessary to read them, but the names of the persons from whom they are received will be made available to the press so that, if the press is concerned about them, they may have the list; and then the list will be made a part of the record. (The list referred to is as follows:)

NOMINATION OF SIMON E. SOBELOFF

Unfavorable letters on file from

Lewis B. Aldridge, Sr., Graham, N. C.

Lewis M. Ayer, president, Ayer & Gillett (advertising), Charlotte, N. C.
John W. Ball, Highland Springs, Va.

Mrs. Ruby C. Beale and Fred H. Beale, Highland Springs, Va.

J. H. Bickley, Marion, S. C.

T. P. Brady, Brookhaven, Miss.

William C. Brothers, New Orleans, La.

Dr. E. C. Brown, Durham, N. C.

Mrs. Curtis O. Bull, Cameron, S. C.

J. Marion Burke, Mount Airy, N. C.

Floyd F. Burr, Washington, D. C.
Ralph Burris, Hartly, Del.

Mr. and Mrs. William D. Burton, Fairfax, Va.

J. D. Butler, Burlington, N. C.

D. R. Cain, Orangeburg, S. C.

Mrs. Stanley Carper and Mollie Ray Carroll, McLean, Va.

C. C. Chandler, Fairfax, Va.

Charles E. Chappell, Highland Springs, Va.

Citizens Councils of Tennessee, Association of, Memphis, Tenn.

H. H. Clark, attorney, Elizabethtown, N. C.

Leon H. Corbett, attorney, Burgaw, N. C.

Melvin G. Cording, mayor pro tem, town of Wallace, N. C.

Darlington County Republican Party, W. P. Laws, chairman, Darlington, S. C. Paul R. Davis, gas consultant, Shreveport, La.

Defenders of State Sovereignty and Individual Liberties, Oliver R. Parker, president Fairfield-Varina Chapter, Richmond, Va.

Defenders of State Sovereignty and Individual Liberties, William E. Maxey, Jr., executive director, Richmond, Va.

George W. Dunlap, president, Canada Dry Bottling Co. of Rock Hill, Rock Hill, .S. C.

Joe A. Dunn, manager, Newton Grove Insurance Agency, Newton Grove, N. C. Sam R. Ervin, Arlington, Va.

D. W. Estes, Durham, N. C.

V. D. Estes, Durham, N. C.

Mrs. Howard E. Etters, Westville, S. C.

Mrs. Pelham L. Felder, Jr., Orangeburg, S. C.

Mrs. E. V. Fenton, Jr., Orangeburg, S. C.

Tom Glasgow, Sr., president, Glasgow Supply Co., Charlotte, N. C.

L. M. Gosney, Durham, N. C.