that that was what led you to the conclusion that he is fully competent to discharge the office of U.S. judge in the court of appeals. Attorney General KATZENBACH. That is correct, Mr. Chairman. Senator ERVIN. And you found in reaching this opinion-you stated that you had contacted 10 Federal judges and that they were unanimously of the opinion that he was admirably qualified for this position.

Attorney General KATZENBACH. That is correct, Mr. Chairman. Of course we contacted a great number of lawyers, a great number of other individuals who were in a position to know Mr. Coleman and to appraise him, and the opinion I stated was the opinion of virtually all those that were contacted. I do not remember an exception.

Senator ERVIN. Now you stated what my own observation and personal experience has shown to be true; namely, that the overwhelming majority of the judges in this country in the performance of their duties ignore any personal opinions they may have and follow the law as these understand the law to be.

That is your observation also, is it not?

Attorney General KATZENBACH. Yes; it is, Mr. Chairman.

Senator ERVIN. I might state that I was privileged to serve for 15 years in the capacity of a judge, which a poetic judge, Walter Malone, of Memphis, Tenn, called judging one's fellow travelers to one tomb. As a trial judge and also an appellate judge I very frequently was called upon to enforce laws with which I did not personally agree, both State laws and Federal laws, and I do not think that I have ever been accused by anyone of not performing my duties and enforcing those laws regardless of my personal opinion. And you are satisfied from your study of Judge Coleman's career that he would do likewise, are you not?

Attorney General KATZENBACH. I am completely satisfied of that, Mr. Chairman.

Senator ERVIN. Senator Hruska.

Senator HRUSKA. Mr. Attorney General, I think you have made a splendid statement. You have met head-on and forthrightly the issues that will probably be heard here by quoting from many of the speeches and many of the prior expressions of the nominee. That is characteristic of you, I have learned, as we have gone through similar hearings and in consideration of various pieces of legislation.

Attorney General KATZENBACH. Thank you, Senator.

Senator HRUSKA. I would like to ask you, Mr. Attorney General, whether in your judgment, having made as complete a survey of the legal and political career of Governor Coleman, do you believe that he would have any difficulty in supporting the general constitutional principles set forth in the case of Brown v. The Board of Education which set the foundation for desegregation of public schools?

Attorney General KATZENBACH. I do not think he would have any difficulty in that respect. I would assume that he would follow the decisions of the Supreme Court in his job as a judge of the court of appeals should he be confirmed by the Senate. I have no doubt as to that.

Senator HRUSKA. There are those who believe that if he is confirmed and sworn in as judge that he should disqualify himself from

hearing any cases testing the constitutionality of any Mississippi statute enacted while he was Governor.

May I ask you what your views are on that subject?

Attorney General KATZENBACH. I would think that if the constitutionality of a law enacted while he was Governor was directly questioned, that he would be well advised, though perhaps not required, to disqualify himself on that issue on a law that he had signed and had taken an official position as to.

Senator HRUSKA. Various Members of the Congress have been elevated to the Supreme Court or perhaps more accurately we should say transferred to the Supreme Court. Has it been the custom and the practice for them to step aside from the consideration of the constitutionality of laws that were passed while they were Members of the Congress?

Attorney General KATZENBACH. No; it has not been. They have passed on the constitutionality of those laws. I think there is some difference in being one member of a large body such as the Senate or the House of Representatives, and in terms of being Governor, particularly with respect to a law that the Governor has urged.

Now, Attorneys General-and this perhaps illustrates the pointAttorneys General have disqualified themselves where they had previously passed upon the constitutionality, sometimes where an opinion of theirs is in question. Sometimes they have not, but there has been some practice of disqualifying themselves.

Senator HRUSKA. Of course, in recent times and in the memory of the witness as well as of this Senator, there has been one man who served in the White House as Chief Executive and later became Chief Justice of the Supreme Court of the United States. Do you recall what his practice was in that regard?

Attorney General KATZENBACH. With respect to the constitutionality of laws that he signed as President?

Senator HRUSKA. Passed during his time as President and to which he signed into law as Chief Executive.

Attorney General KATZENBACH. I do not recall his practice on that. I do not know whether the issue came up with Chief Justice Taft, whether the laws were questioned or not.

Senator HRUSKA. Thank you very much.

Attorney General KATZENBACH. I feel ignorant. I should have looked it up.

Senator HRUSKA. In asking the question I pleaded my ignorance. I think that is all at this time, Mr. Chairman.

Senator ERVIN. And it would not interfere with the administration of justice in the fifth circuit for any particular judge to disqualify himself for personal reasons in respect to particular cases because of the fact you have some eight or nine judges as I recall, and it takes only three of them to make a decision.

Attorney General KATZENBACH. That is true, Mr. Chairman, and it seems to me that within the whole practice of disqualification the convenience of disqualifying is one factor to be weighed in the process; for example, if you take members of a small commission here, the disqualification of one man on the grounds that others might disqualify themselves in another context could change the result, and it could even be used by counsel as a device.

Senator ERVIN. They have one advantage over the Attorney General and Members of the Senate and Governors of States and the Presidents in that they can disqualify themse ves from having a decision made and without impeding the administration of justice, whereas we have to meet all our issues head on; is that not true?

Attorney General KATZENBACH. That is correct, Mr. Chairman. Senator JAVITS. Mr. Chairman, I would like to ask a question or two if I can.

Senator ERVIN. Yes.

Attorney General KATZENBACH. I will be happy to stay and answer these questions. Could I tell the Chair I do have to testify on some legislation in the other body. I am perfectly happy-I do not have to leave immediately, but I am a little bit pressed.

Senator JAVITS. I shall not take more than 5 minutes.

Mr. Attorney General, I would like to ask this question which you may feel free not to answer, but this name of Governor Coleman, did it originate with the President or with the Department of Justice?

Attorney General KATZENBACH. The name of Governor Coleman originated with the Department of Justice. This vacancy existed for 20 months. He was one of the people under consideration and one of the people discussed with the Senators from Mississippi many, many months ago.

Senator JAVITS. Now, does every State of the Union have a representative or a citizen of that State on the circuit courts of appeal, or are there some States that do not.

Attorney General KATZENBACH. There are some States that do not, Senator. In this particular circuit the only State that does not at the moment is the State of Mississippi.

Senator JAVITS. And it is fair to say that those other States are South Dakota, Oregon, Alaska, and Hawaii as far as you know. Attorney General KATZENBACH. Yes. I had thought there were more, but those four do not have.

Senator JAVITS. And if there are more

Attorney General KATZENBACH. There may be others.

Senator JAVITS. Now there is only one real thing I would like to ask you about. I notice with great interest your statement: "Not all judges approve of all the laws they administer. Yet they apply them just the same."

I ask you, if you would, to test that statement in this qualitative way. Where we have a juror in a capital case where the State law permits capital punishment, it is the normal practice to ask him whether he believes in capital punishment, and if he does not, he is generally discharged. Now, in this case if we find-if we should find that the segregationist views of Governor Coleman are so deep as to amount to a conviction of the character that I have mentioned— just does not believe in mixing of the races, if you will-insofar as the laws which we have now passed, or the Supreme Court decisions have already stated to be the law of the land according to the Constitution, would you have as Attorney General, as a lawyer, any different opinion than the one you have stated, "Not all judges approve"I emphasize the word "approve"-"of the laws they administer. Yet they apply them just the same"?

just

Attorney General KATZENBACH. I would not recommend to the President in this or in any other judgeship a man whom I did not

believe would faithfully apply and administer impartial justice irrespective of the parties, of their race and on any issue that he would support to the best of his ability the Constitution of the United States, and that he would fairly interpret it, and that he would follow the decisions of the Supreme Court in both spirit and letter.

Senator JAVITS. Then would you say, Mr. Attorney General, in fairness to us who are questioning this appointment and I emphasize the word “questioning”—that the inquiry as to whether the views of the prospective appointee are a deep inner conviction or our question of approval or disapproval is neither a captious nor a capricious question but a real honorable question of fact upon which men may differ?

Attorney General KATZENBACH. I am not sure that I quite get the question, Senator. Perhaps you can repeat it.

Senator JAVITS. I will be happy to try to make it more clear.

I ask you as a lawyer and Attorney General-because I respect your views-whether in view of what you have just testified, it is a legitimate rather than a capricious or captious question of fact for those of us who question this nomination to find out whether Governor Coleman approves or disapproves we know he disapproves of the decisions of the courts and the laws like the Civil Rights Act of 1964, et cetera, or whether this is such a deep inner conviction as to disable him, in the judgment of men who want to be just as fair as you do, from honestly and fairly enforcing the laws of the United States?

Attorney General KATZENBACH. If you were to believe this was such a deep inner conviction that he could not fairly administer and judge the laws of the United States and the Constitution, then I would suppose that under those circumstances I should not have recommended him, and that is my conviction, and you would not consent to the appointment. I do think, Senator, I am satisfied myself with the record. I haven't any question about it. Even given a lesser responsibility than that of a Federal judge, the record is replete with examples of his devotion to the law and to its processes.

Senator JAVITS. I was just trying to test for myself the honorable character of the inquiry.

Attorney General KATZENBACH. Yes, Senator. I feel that on that or on any issue for any reason at all the Senate should believe that a man will not act as he should act as a judge, then they should not confirm him.

Senator JAVITS. And the Attorney General's own sampling, which was his sampling of previous statements, indicates that there is some factual basis for raising these questions in this case.

Attorney General KATZENBACH. Because of the nature of the law. and the recent developments in this area and because of its highly emotional content, I raised that question in my own investigation. Senator JAVITS. And so we have a right to raise it in ours. Attorney General KATZENBACH. I would certainly think so. Senator JAVITS. I thank the Chair and the witness.

Senator ERVIN. Senator Hart.

Senator HART. Mr. Attorney General, Senator Javits made some reference to the point that I wanted your reaction on. You believe that the nominee will apply the law, both the Constitution as he reads it and as the Supreme Court has said.

Attorney General KATZENBACH. Yes; I do.

Senator HART. And this is really what troubles me. Why is it necessary that there be a nomination given us which has to be explained in such detail? Attorney General KATZENBACH. Because there is some opposition to the nomination, and that was the reason that I wished to make clear my convictions on this. I would have hoped and thought that it would have not been necessary to raise those questions at all because of the fact that Governor Coleman is a fine and able lawyer with a distinguished record and a man who, as I say, throughout that time of political life in the context of Mississippi stood up time and time again for the law and against extremist views within that State when it was politically unpopular to do so, and I believe that one act of that kind is worth a hundred campaign speeches, Senator; when people are taking what is the politically popular position for them to take, there is no risk whatsoever in their stating it, and when a man stands up for what he believes to be right and he does so in the context of strong opinion, strong popular views to the contrary, then I believe that is worth a great deal. That tells you a great deal about the integrity of that man and about his conscience and his capacities. Senator HART. But the reason that such detail was developed to support and explain the nomination is because in addition to those courageous political statements, a great many statements were made by the nominee which when played back would suggest on their face that he had no business on the Federal bench. Is that not the reason that we have this detailed explanation?

Attorney General KATZENBACH. I do not think that is a completely fair statement of it, Senator, because on any nominee with respect to highly controversial questions of this kind, I believe that we would wish to satisfy ourselves that when put upon the bench, he would fairly administer the law, so that irrespective of those statements that were made in political context, in the political context of Mississippi where they were scarcely unusual, where they were always more moderate than the statements made by the opposition, they should be examined, as I have said, against the other acts that he took.

Indeed, I believe his moderation and I believe his courage in this respect and his willingness to stand up for law really cost him a political career in that State.

Senator HART. Then this really gets back, I think, to the first question: moderate in the setting in which they were spoken. But what is the necessity that we go to that setting for this nomination? This and one other thing I want to raise with you troubles me, and I do not know how I shall vote.

Attorney General KATZENBACH. The issue of why we go to that particular setting, I take it, it is why should any judge from the State of Mississippi be appointed because of that setting.

Senator HART. Anyone who could have played back some of the music that we have read and heard here.

Attorney General KATZENBACH. If that were the standard that you were to apply, rather than the standard as to whether or not you believed he could fairly and impartially administer justice, it would penalize the State of Mississippi for its political views and the views that have been shared in that State, which I hope are now in part changing. You would penalize that State, you would penalize virtually everyone within it.

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