Senator JAVITS. If the Chair would allow, would you give us your appraisal of that equally with the appraisal of the campaign statements?

Attorney General KATZENBACH. Yes; I will be very happy to.
Senator JAVITS. If the Chair will allow.

Senator ERVIN. Yes.

(The information referred to follows:)

Hon. JAMES O. EASTLAND,

OFFICE OF THE ATTORNEY GENERAL,
Washington, D. C., July 16, 1965.

Chairman, Senate Committee on the Judiciary,
Washington D. C.

DEAR SENATOR EASTLAND: In accordance with the request made by Senator Javits during the hearings on the confirmation of James P. Coleman as a judge of the court of appeals for the fifth circuit, I am submitting herewith the more significant laws dealing with racial matters enacted by the Mississippi Legislature during the years 1950-55 and 1956-59 while Mr. Coleman was, respectively, attorney general and Governor of that State. Not included in this compilation are statutes which, through routine appropriations and the like, acknowledge and maintain separate facilities for Negroes and whites. I am also listing some instances of opposition by Governor Coleman to bills proposed by the legislature. Sincerely,

NICHOLAS DEB. KATZENBACH,

Attorney General.

1. An act to provide State aid for construction of school facilities. It is hereby declared that it is the intent and purpose of this act to equalize school facilities between the races and to provide that the determination of expenditures shall take into account the quality of existing facilities for each race. (December 28, 1953-Senate bill 1204).

2. An act authorizing the boards of trustees of school districts to assign public schools or attendance centers (March 10, 1954-House bill 45).

3. An act to appropriate funds to provide instruction in graduate and professional schools for qualified Negro students who are residents of Mississippi in institutions outside of the State, when such instruction is not available for them in the regularly supported Missipissippi institutions of higher learning (May 4, 1954-House bill 979).

4. An act to amend section 3, chapter 13, of the Extraordinary Session of 1953 to provide additional emergency grants of $3 based on each Negro child in average daily attendance each year; and for other related purposes (March 1, 1955-Senate bill 1202).

5. Acts to amend various election laws including implementation of section 244 of the Mississippi constitution dealing with literacy tests (March 24, 1955— House bills 19, 24, 26, 95, 160, and Senate bill 1216).

6. In February 1956, Governor Coleman vetoed a bill designed to prevent FBI agents from making civil rights investigations in Mississippi. (He had originally proposed this bill.

7. An act to require maintenance of separate accommodations, toilet facilities, and waiting rooms for the races traveling in intrastate travel at railroad companies, bus companies, and other common carriers of passengers (February 21, 1956 House bills 7, 12, 22).

8. An act to confer upon any person, firm, or corporation engaged in any public business the right to choose and select its customers, to refuse service, and to provide penalties for any person who refuses to vacate a public place when ordered to do so by the owner or an employee thereof (February 21, 1956-House bill 21).

9. An act to repeal the compulsory education law (February 24, 1956-House bill 31).

10. In 1956, the Governor spoke against a legislative proposal to deny tax exemptions to churches whose property was used on a nonsegregated basis.

11. An act to establish the State Sovereignty Commission (March 29, 1956— House bill 880).

12. An act to provide imprisonment terms for interracial marriages prohibited by law (April 5, 1956-House bill 975).

13. An act to give effect to the resolution of interposition (Senate concurrent resolution No. 125) and to the principle of segregation of the races, to define viola

tions thereof, and to provide penalties for the violation of these provisions (Apr. 5, 1956-Senate bill 1870).

14. In April 1958, Governor Coleman spoke out against a bill authorizing the hiring of White Citizens Councils by cities and counties for the purposes of distributing propaganda.

15. An act to authorize the attorney general of Mississippi to advise and assist county, State, or school employees who are being sued or called as witnesses by the Commission on Civil Rights or other agencies of the United States for discharging their duties under the Mississippi constitution and laws (Apr. 25, 1958-House bills 936, 937).

16. In April 1958, Governor Coleman vetoed a bill to place responsibility for voter registration in the hands of court-appointed registrars, a bill which was characterized as aimed at maintaining white supremacy at the ballot box.

Senator ERVIN. Do you have any questions, Senator Kennedy? Senator KENNEDY. Just one very brief question, Mr. Attorney General.

I appreciate the detailed testimony which you have given this morning. One of the problems which the Justice Department is confronted with is in the variety of cases involving the recent Civil Rights Act is a case which has been brought in the district court in which there has not been expeditious treatment. One of the remedies would be for a writ of mandamus to be given by the circuit court judges. I think the record of the past has indicated that there are reservations by certain members of that court in granting writs of mandamus and that this is the whole question of time being as important as it is involved in these civil rights cases. Are you completely satisfied, with these other questions which have been raised, that Governor Coleman will act responsibly and with enlightenment in seeing that expeditious justice is done in these cases, and as a member of a panel.

Attorney General KATZENBACH. Yes, I am, Senator. I think you have accurately stated the fact that mandamus is an exceptional remedy. We have asked for it in the Department of Justice more times than we have gotten it. In fact I do not recall an instance where we have actually gotten any members of the court of appeals to issue a writ of mandamus so the issue is not certain members of that court having reservations. I think the issue would be that all members of that court, in fact all members of all circuit courts have reservations about mandamus, and about its procedure. I think that it is warranted in exceptional circumstances. I think the circumstances are exceptional that that court would give it.

One of our experiences has been often when we asked for mandamus, it becomes unnecessary for the court of appeals to decide that issue because the cause is expedited at the district court level.

Senator KENNEDY. You requested that on several different occasions, have you not?

Attorney General KATZENBACH. About five times, I think, in civil rights cases.

Senator KENNEDY. And you felt that there were adequate reasons to request a writ of mandamus.

Attorney General KATZENBACH. We felt that they were, but not all of the views that we express in any court are always accepted by that court even though I always think we are right.

Senator KENNEDY. And you would be satisfied that the nominee would act in such a way that he would not have reservations in issuing such a writ.

Attorney General KATZENBACH. I think he would have no different reservations any judge would have. I think it is an exceptional writ. I think in appropriate circumstances he would grant it.

Senator KENNEDY. Thank you.

Senator ERVIN. A writ of mandamus is a writ which is very rarely employed, is it not?

Attorney General KATZENBACH. Very rarely.

Senator ERVIN. And it is very rarely employed for the reason that it only lies to enforce the ministerial action and does not lie in a case that involves discretionary action.

Attorney General KATZENBACH. That is correct, Senator. I think it would be accurate to say that courts of appeal do not like to tell the district judges how to exercise their discretion.

Senator ERVIN. Most civil rights cases-in fact virtually all of them-involve equity proceedings, and equity proceedings, inherently, ordinarily involve the exercise of discretion, do they not?

Attorney General KATZENBACH. That is correct, but, Senator, I would not be honest with you if I did not think that in some courts there have been terribly unreasonable delays with respect to deciding

cases.

Senator ERVIN. That has been true for a long, long time. I believe even back in Shakespeare's time Hamlet complained about outrageous fortune, did he not?

Attorney General KATZENBACH. I think there must be something in the Bible on it too, Senator.

Senator ERVIN. You were asked questions about statements made by Governor Coleman in his political campaign. Did you ever read the debates between Judge Douglas and Abe Lincoln when they were opposing candidates for the U.S. Senate in Illinois in 1858?

Attorney General KATZENBACH. A long time ago. I think you could have proved Abe Lincoln to be a segregationist.

Senator ERVIN. Absolutely, and Abraham Lincoln made a great many very intemporate remarks concerning the Supreme Court in its decisions, especially the decision in the Dred Scott case, in that campaign, did he not?

Attorney General KATZENBACH. Yes, he did, Senator.

Senator ERVIN. And some of Governor Coleman's statements pale into insignificance almost in comparison with some of Abraham Lincoln's statements, do they not?

Attorney General KATZENBACH. Yes, Senator.

Senator ERVIN. Now, with reference to the analogy of my good friend from New York about a juror in a capital case. A juror does not undergo the mental discipline that a lawyer or judge undergoes, does he, in the sense that in the very mental discipline which one gets in the practice of law and in the administration of justice as the judge does, that he acquires the capacity through his mental discipline to lay aside what he would like for the law to be and be guided by what the law has been declared to be by an authority of decision, does he not?

Attorney General KATZENBACH. Yes; I think so.

Senator ERVIN. And even in the case of a juror who says he does not believe in capital punishment, is it not frequently that the question is asked whether or not his beliefs about capital punishment would

deprive him of the capacity to try the case according to the law and the evidence and to accept the law from the court, and if he answers that in the affirmative, he is chosen to serve?

Attorney General KATZENBACH. Yes.

Senator ERVIN. Thank you very much, Mr. Attorney General.
Attorney General KATZENBACH. Thank you, Mr. Chairman.

Senator ERVIN. Governor, the subcommittee has decided unanimously that we will hear the opposition witnesses because this would then give an opportunity for you to explain any statements, and it would also give an opportunity for anyone to cross-examine you in respect to matters that the opposition witnesses may bring out. For that reason you may stand aside.

The first opposition witness is Mrs. Victoria Gray of the Mississippi Freedom Democratic Party. I assume Mrs. Gray is here.

Mr. LEWIS. Mr. Chairman, she is not here. She will be here shortly.

Senator ERVIN. How long will it be? I will call the next witness. Is Congressman John Conyers here?

Mr. CONYERS. Yes, sir; I am.

Senator ERVIN. We will hear you at this time.

Mr. LEWIS. Mr. Chairman, is it possible for us to hear Governor Coleman first?

Senator ERVIN. No. The committee has decided to hear the opposition witnesses first.

Mr. LEWIS. Is it traditional and customary? Senator ERVIN. Yes, it is customary. It is a custom that has prevailed very frequently in the committee because of the fact that the committee would like to have the benefit of the observations of the opposing witnesses in order to question the nominee about their political

Mr. LEWIS. Do we have any rebuttal time, Mr. Chairman? Senator ERVIN. We will decide on that question when it arises. We do not cross bridges before we get to them.

Congressman, the committee is glad to welcome you here and give you the opportunity to express your views.

STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE FIRST CONGRESSIONAL DISTRICT OF THE STATE OF MICHIGAN

Mr. CONYERS. Thank you, Mr. Chairman and members of this very distinguished subcommittee.

I am honored to be able to appear before you to perhaps present a slightly different point of view on the question at hand this morning. First of all I would have to agree with perhaps an opinion held by many people that the Governor and nominee is very ably represented here this morning by one of our most brilliant lawyers in the country, the Attorney General of the United States of America. I had not heard-I did not know what the Attorney General was going to comment on, but there have been a few statements that he made that I think would warrant some elaboration, and if you do not mind, I would like to point them out before I proceed with my statement.

On page 3 in the Attorney General's statement he said, and I quote:

According to a Jackson newspaper during the Coleman's term in office the State sovereignty commission dwindled to virtually nothing.

Then a statement that has been prepared by the Washington Human Rights project, which I will be very happy to have inserted into the record and provided for the chairman and members. We have here a quotation:

An additional impediment to the fulfillment of constitutional rights are found in chapter 253 of the general laws of Mississippi, an act to prohibit the fomenting of litigation by making it unlawful to donate or receive funds for the purpose of filing or prosecuting lawsuits. This legislation was aimed at the legal defense fund of the NAACP and other organizations seeking to confirm by lawsuit the constitutional rights of Negro citizens.

Then the Attorney General mentioned a little further on in the same page that

In 1958 the White Citizens Councils brought stronger pressure to purge the State schools of textbooks which taught that prejudice is wrong. Governor Coleman refused to bend to this pressure. For this he was severely criticized by a State judge who also happened to be a politically powerful leader in the White Citizens Councils.

And yet from the newspaper in Mississippi, the Clarion Ledger, on November 21, 1958, I quote:

The Governor, J. P. Coleman, promised Thursday that Mississippi would maintain segregation despite the efforts of his political enemies who agitate to improve their political chances. We are going to keep the schools in Mississippi open, and we are going to operate them on a segregated basis. Coleman also announced the State textbook commission has completed work on the list of books approved for high school use during the next 4 years. Coleman, a member of the five-man group, said, "We have done our best to select the very best books available and have carefully checked them all as to content."

And then continuing the newspaper article:

Before the group of books went before the group, every man was examined by a committee of teachers who screened out material that might be construed as for integration.

In addition to that, in 1956 the Governor signed into law chapters 273 and 288 of the general laws of the State of Mississippi, "Acts confirming a steadfast policy of racial segregation in the State's public schools in repealing the State's compulsory education laws so as to be able to close individual schools within the State if required to desegregate by Federal court orders."

The distinguished Attorney General also said in his statement that: When during this same period other Governors of Southern States proposed banning the NAACP, Governor Coleman disapproved.

I will only refer to my original statement here in which chapter 253 of the Mississippi general laws were enacted for the ostensible purpose of attempting to make unlawful the donation of funds for the purpose of prosecuting lawsuits brought by the NAACP.

On page 4 of the Attorney General's statement in the third paragraph he said that:

Coleman was to announce shortly thereafter his candidacy for the governorship. Yet he did not hestitate to lead the opposition to the Barnett proposal in the legislature.