the obligations of lawyers to provide legal services to the needy members of our society, to reevaluate and reevaluate the ethical standards of the profession, and to enhance the general reputation of lawyers.

The Criminal Justice Act of 1964, providing for compensated counsel in federal courts for indigent defendants charged with felonies or serious misdemeanors, having been enacted and gratifying progress having been made in a number of states, Mr. Powell, as President of the Association, alerted the profession to the magnitude and urgency of the need for counsel in criminal cases; and he skillfully stimulated action by the organized bar to meet that need. He also reminded the bar that its responsibility was no less crucial in the civil justice field.

When the Economic Opportunity Act was enacted in 1964, authorizing community action programs designed to help the impoverished through legal services and other means in local communities across the country, there was considerable concern among some members of the profession as to whether the legislation, because it involved massive participation by the federal government in legal aid, would receive the support of the organized bar. Most lawyers would have preferred local rather than federal solutions. But under the leadership of Lewis Powell, who recognized that the complexities and demands of modern society required legal services assistance that were beyond the will or capacity of the profession, or even states and municipalities to meet, the American Bar Association assumed the national leadership in persuading the organized bar at all levels to embrace the OEO Legal Services Program then before the Congress. This not only helped rekindle the conscience of the bar in a critical area in which it had certainly not distinguished itself, it provided the support the program needed to get off the ground.

In a letter I received from Mr. Sargent Shriver last September, he referred to the magnificent leadership of Mr. Powell in the formulation and the effectuation of the national program. He has praised, too, Mr. Powell's statesmanship in the identification and critical appraisal of its obvious problems and uncertainties. Mr. Shriver added that he had "come to believe that the Legal Services Program small though it is, will rank in history with the great triumphs of Justice over Tyranny... (and) one of the brightest achievement in our nation's history." In recognizing the need for broader and more efficient legal services for the poor, Mr. Powell did not overlook the mounting problems of other segments of the public in obtaining adequate legal services the millions of persons who are not so impoverished as to be qualified for legal aid but who nevertheless require legal services and cannot afford to pay for them. And so, at his instance the American Bar Association created still another agency, this time to ascertain the availability of legal services to all segments of the society, the adequacy of existing methods and institutions for providing them, the need for group legal programs and their relation to the profession's ethical standards, the most expeditious and effective way to provide such services to a greatly enlarged clientele. “But even as study progresses", Mr. Powell urged, "the organized bar at all levels must press ahead with every available means to improve existing methods. . . . It is axiomatic that those (the legal profession) who enjoy a monopoly position have higher duties and responsibilities. In discharging these the ultimate test must be the public interest."

Recognizing the need for updating the Canons of Professional Ethics including their observance and enforcement, Mr. Powell appointed a new Special Committee on Evaluation of Ethical Standards to deal with that subject. In doing so, he directed the Committee's attention to three examples of the need: (1) Wider discourse on fair trial and free press, lawyers being "a major source that may affect the fariness of trials". (2) The representation of unpopular causes and the providing of aid even to the most unpopular defendants. (3) The need to revise the Canons of Ethics to recognize the need for group legal services through lay organizations such as those involved in the recent decisions of the Supreme Court. Reporting a growing dissatisfaction with the discipline maintained by the legal profession, he courageously acknowledged that the dissatisfaction was justified and requested that the new canons lay down clear, peremptory rules relating directly to the duty of lawyers to their clients and the courts.

One of the most massive undertakings in the history of the Association undertaken during Lewis Powell's administration as President of the American Bar Association was the project to provide minimum standards for the administration of criminal justice. This encompassed the entire spectrum of the criminal justice process from prearraignment and bail to sentencing, postconviction remedies and correctional treatment. Today, with only one phase remaining to be concluded, the historic Reports of the distinguished committee of judges, lawyers

and other initially appointed by Mr. Powell provide innovative and effective standards to improve the criminal process. They are under active consideration by legislatures, courts, and law enforcement authorities, and will, in Mr. Powell's prophetic words "help materially in improving the fairness, the certainty and swiftness of criminal justice."

In the area of race relations, the following paragraphs from Mr. Powell's Annual Address are noteworthy: "One cannot think of crime in this country without special concern for the lawlessness related to racial unrest that casts a deep shadow across the American scene. This takes many forms. That which is most widely publicized is the criminal conduct of the small and defiant minority in the South-a diminishing minority that still uses violence and intimidation to frustrate the legal rights of Negro citizens. This conduct is rightly condemned and deplored throughout our country. The full processes of our legal system must be used as effectively, and with as much determination, against racial lawlessness as against all other crime."

He continued: "Every lawyer recognizes that the right of dissent is a vital part of our American heritage. So also are the rights to assemble, to protest, to petition and to test the validity of challenged laws or regulations. But our Constitution and tradition contemplate the orderly assertion of these rights."

There are those who have characterized Lewis Powell as a conservative. I do not like such designations; they are uncertain in meaning and so much of their interpretation lies in the eyes of the beholder. But if Lewis Powell is a conservative, he is one in the classical sense-a man who would preserve the best of existing institutions and forms of government, but not one who has been or ever will be subject to the tryanny of slogans and outmoded formulas. Rather, he is a realist but one who does not merely bow to the inevitability of change; he is hospitable to it, even going out to meet it when appropriate. In the face of changes that are impending, or indeed are already here, which seem overwhelming to many, Lewis Powell is the kind of person who is both undisturbed and unsurprised. He sees such changes as the business of the law and the business of the courts. For while he would recognize that we are headed for a volume and a degree of change in the whole fabric of our life that is wholly without precedent, he would urge that we be equipped in our legal usages, in our vision, in the breadth of our reference, to deal with them, and in view of the urgency to deal with them more speedily than ever before.

He would, I think, call attention to the profound statement of Edmund Burke, who surely would be designated a conservative and who was not an innovator. "We must all obey the great law of change," Burke said, "it is the most powerful law of nature, and the means perhaps of its conservation." It would be Lewis Powell's position, I suggest, that the perpetual challenge to the courts is to accommodate the law to change-in Sir Frederick Pollock's words, "to keep the rules of law in harmony with the enlightened common sense of the nation."

In his public addresses and in his writings, Lewis Powell has expressed forthrightly and candidly his views regarding many of the complex and manifold problems of our society. Based upon those statements and my observations of him, for many years, I am prepared, insofar as ultimate judgment of any man may be forecast by his contemporaries, to predict with confidence that Lewis Powell will be a judge with great fidelity to the best traditions of the Supreme Court, not as a worshipper of the past but as a stimulus toward promoting the most fruitful administration of justice.

I anticipate that his opinions as a judge during these and other troubled times will reflect, not the friction and passion of the day, but devotion to the “abiding spirit of the Constitution". In addition, his extensive experience at the bar and his admirable sense of balance will bring wisdom to the disposition of a considerable body of litigation, outside the passions of popular controversy, that comes to the Court each year. A man of uncompromising honesty-intellectual as well as moral-a man of wisdom and dedication to his convictions, Lewis Powell's singular attributes as a lawyer, his clearheadedness, his resourcefulness, his disciplined intellectual habits, all combined with a due sense of proportion, will, I am sure, enable him to fulfill Mr. Justice Frankfurter's definition of the "duty of justices. not to express their personal will and wisdom. . . (but rather) to try to triumph over the bent of their own preferences and to transcend, through habituated exercise of the imagination, the limits of their direct experiences." And at the same time he will in my considered judgment meet Chief Jultice Marshall's solemn warning: "We must never forget that it is a Constitution we are expounding . . . a Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs."

Mr. Chairman, it has been uncommonly true in the history of our Court that the challenge of Federal judicial service touches the deepest, most fundamental sensitivities of the men trained in the law who come to the bench. The judge with his personal system of private values will, of all citizens, stand nearest the Constitution with its public system of public values. He will equate the one with the other and in doing so, he will have his unique and precious chance to make sure that American jurisprudence shall have added what Mr. Justice Jackson so eloquently termed "a valuable and enduring contribution to the science of government under law." "Law" he said, "as the expression of the ultimate will and wisdom of the people has so far proven the safest guardian of liberty yet devised." And, Mr. Chairman, I have no doubt that as a Supreme Court Justice, law, as the will and wisdom of the people, is the client Lewis Powell will serve. I believe that as he assumes the lonely and awesome responsibility of making what so often will be irreversible decisions on great and far-reaching questions, he will bring to his task extraordinary capacities, a wise and understanding heart, and a deep and abiding sense of justice. I predict that at the end of his term, Lewis Powell will have joined "the enduring architects of the federal structure within which our nation lives and moves and has its being".

STATEMENT OF HICKS EPTON OF WEWOKA, OKLA.

My name is Hicks Epton. By way of identification I was admitted to the Oklahoma Bar Association in 1932. Ever since I have lived in and practiced law out of the County Seat town of Wewoka, Oklahoma. I have devoted almost all my professional life to the preparation and trial of litigated matters. For five years I was Chairman of the Board of Admissions to the Oklahoma Bar Association. For 12 years I was a member of the National Conference of Commissioners of Uniform State Laws. I was a member of the first Civil Rights Commission of my state and was defending the unpopular cause before it became popular or profitable to do it. By the grace of my peers I am the President of the American College of Trial Lawyers and appear here at the directions of the distinguished Regents of the College who themselves are today on their feet in Courtrooms scattered over the United States.

The American College of Trial Lawyers is an honorary organization of approximately 2300 members called Fellows. It is national in scope and membership is by invitation only. No one is considered for Fellowship in the College who has not successfully and honorably tried adversary causes for at least 60 percent of his time over a period of 15 years. Only those with the highest ethical standards and of impeccable character are considered. Even then the membership is numerically limited to one percent of those licensed to practice law in any State.

The College concerns itself with the improvement of the administration of justice. Illustrative of its specific work is the monumental Criminal Defense Manual which it sponsored and produced, in cooperation with other legal organizations, a few years ago and its later sponsoring of the College for Prosecuting Attorneys. Another example of its work is the careful study, report and recommendations on the Disruption of the Judicial Process published in July, 1970, and which has become a basic document in this vital area. Even now it is studying the prolonged criminal trial and the Class Action problems.

Lewis F. Powell, Jr., has been a long-time Fellow of the American College of Trial Lawyers. He served with great distinction as its President in 1969-1970. Indeed, it was he who conceived the study of the Disruption of the Judicial Process and appointed the Committee which made the study and report.

It has been my good fortune to know Lewis F. Powell, Jr., and his family for many years. I have been intimately associated with him in the work of the College and the American Bar Association. I therefore am pleased to add my personal approval to the official endorsement of the College which at this time I have the honor to lead.

In our opinion Lewis F. Powell, Jr., is easily one of the best qualified men in America for the Supreme Court. He was a superior student in one of the finest law schools in America. Today he is just as serious a student of the law as he was while he was in law school. This seems important because we believe one must first be a good carpenter before he becomes a great architect.

Powell has been and is one of America's outstanding trial lawyers. They come in all sizes, colors, and dispositions; and from every conceivable background. The trial lawyer sips of many sciences and hopefully is blessed by a portion of at least

one art. There are no child prodigies in the field of trial practice. Of necessity a great trial lawyer is a man of compassion because jurors usually are compassionate and the law must assay the facts so the tryer of the facts knows where to bestow the compassion. He must be a man of humility. The writer of Proverbs must have had the trial lawyer in mind when he wrote, "pride goeth before destruction and a haughty spirit before a fall."

The trial lawyer must not always expect to win friends and influence people. He gets his case after infection of the social or business relationship between his client and others. Seldom is there an easy answer and often there is no right answer. He works within the framework of an imperfect adversary system for the simple reason it is all we have and appears to be the best now known. It is small wonder that the English appoint all their high Court Judges from the Bar which is the trial branch of their legal profession. All of this training and self discipline eminently qualifies Lewis F. Powell, Jr., for outstanding work on the Supreme Court. Every Courtroom Powell has entered has been a classroom preparing him for this high purpose.

Although carrying his full share of the heavy practice of a large and busy law firm for many years Powell has always taken time for community work. Even more importantly, we think is his work in the improvement of his own profession and the administration of justice. He believes the members of the legal profession are trustees of it, for the benefit of the public and those who will labor after him, and they have a non-delegable duty to leave the vineyard better than when they entered it. No man has given more than he of his time and energy in the improvement of the administration of justice.

Lewis Powell is endowed by nature with a great mind. By training and selfdiscipline he has developed what we are pleased to call a judicial temperament. Perhaps it consists of competence, courage and compassion.

Others have asked me to tag him as a liberal or conservative. Frankly, I do not know. I know that he is first, last and always a lawyer, a gentleman and industrious and has the courage to do his duty "as God gives him the light to see it".

STATEMENT OF MAYNARD J. TOLL

My name is Maynard J. Toll. I have practiced law in Los Angeles for more than 40 years, and am one of the senior partners in the firm of O'Melveny & Myers of that city.

I am sure this committee would prefer that I avoid glittering generalities about Mr. Lewis A. Powell, and speak of specifics about which I have personal knowledge. This I shall do.

First, and of utmost importance, is the prime role he played in leading the lawyers of this country to take an affirmative position regarding the proposed Legal Services Program of the Office of Economic Opportunity, and to this accomplishment I will direct the bulk of my testimony. My qualification to speak authoritatively on this subject is that from the Fall of 1966 to the Fall of 1970, I was President, and for several preceding years had been Vice-President, of National Legal Aid and Defender Association, whose sole objective is to bring first class legal services to those who cannot afford a fee.

Shortly after the Economic Opportunity Act became law in 1964 it became apparent that the Act could be used to channel federal funds into the provision of legal services for the poor. At that time the legal aid program was limping along on an annual budget, nation-wide, of the order of magnitude of $5 million. Here was the first hope for a massive infusion of new money, with a view to the immediate amelioration of the legal problems of thousands of people who previously were wholly without access to a lawyer.

Even more important was the promise that the interests of the poor as a total group would be competently and aggressively asserted for the first time before our courts and legislative bodies, leading to reforms which, over a period of time, might alter basically and drastically the status of the poor in our legal-ceonomicpolitical system.

The proponents of these plans recognized that their successful implementation would be impossible if it encountered the opposition of the organized Bar of the nation. Given the generally conservative orientation of the Bar such opposition was a real possibility. Only the most optimistic dared hope for an affirmative endorsement by the legal profession as a whole.

Happily, Lewis Powell, President of the American Bar Association from 1964 to 1965, understood the need and had the vision and the courage to see and to seize the opportunity. Refusing squarely to follow the example of the medical profession, and refuting the alarmist argument that this would be socialization of the law, Mr. Powell exerted persuasively and effectively the great prestige of his office and achieved the support of both the Board of Governors and the House of Delegates of the American Bar Association for this new program.

The result was a tenfold increase in the quantity of legal services available to the poor, widespread participation in the program by lawyers throughout the country, active leadership in individual programs by scores of state and local bar associations, the observance of high professional and ethical standards in the interests of poor clients, and a quality of legal representation that is generally on a par with or better than that available to many paying clients.

All this could not have happened without the blessing of the American Bar Association. While Lewis Powell cannot be credited solely with the result, one must have very serious doubt that it could have been brought off without his aggressive leadership. It is beyond doubt that had he been in opposition the proposal would have failed.

During the four years of my presidency of National Legal Aid and Defender Association we had many occasions to express our corporate gratitude to Lewis Powell for what he had done, and I am pleased to bring that same witness to this honorable body today.

Secondly: At the same time that civil legal services were proliferating under the spur of OEO funds, the National Legal Aid and Defender Association was sponsoring a series of demonstration projects in the field of legal services for poor persons accused of crime. This so-called National Defender Project, financed by the Ford Foundation, attracted Mr. Powell's interest and enthusiasm, which assured full cooperation and participation by the American Bar Association. This Project has brought as significant help to poor people, although not as dramatic, as the OEO Legal Services Program.

Finally, I am sure others have testified, or will do so, regarding Lewis Powell's immeasurable contribution of talent, patience, wisdom and common sense to the American Bar Foundation. Of this important adjunct of the ABA he has been President for the past two years, during which I have had the privilege of serving as a director. In this role, time and again he has displayed these qualities, which will make him a great Justice of the United States Supreme Court.

STATEMENT OF PHIL C. NEAL, DEAN AND PROFESSOR OF LAW, THE UNIVERSITY OF CHICAGO LAW SCHOOL

My name is Phil C. Neal. I am Dean of the Law School of the University of Chicago, and I have been a law teacher for approximately 22 years, first at Stanford Law School and for the past ten years at the University of Chicago. My principal fields of interest during this period have been Constitutional Law, Administrative Law, and Antitrust Law. I am one of a group of law teachers working on a history of the Supreme Court commissioned by Congress under the bequest of Mr. Justice Holmes and being carried out under the general editorship of Professor Paul A. Freund of Harvard University. Perhaps it may be relevant to add that my special interest in the Supreme Court, and probably the views I hold as to the role of the Court and the standards its members should meet, owes a good deal to my experience in the 1943 and 1944 Terms of the Court in which I had the good fortune to serve as law clerk to the late Justice Robert H. Jackson. I am grateful for the opportunity to appear before the Committee today in support of the nomination of Mr. Lewis F. Powell, Jr., to be an Associate Justice of the Court.

I am sure the Committee is fully informed from other and better sources as to the details of Mr. Powell's professional accomplishments, his public service, and his role as a leader of the organized legal profession. I should like only to add a few words in the nature of a personal appraisal, based on the particular relationship in which I have had the privilege of knowing him.

My association with Mr. Powell has been through the work of the American Bar Foundation. The Bar Foundation is a research organization, devoted to improving the understanding and workings of our legal system through scholarly investigation and publication. When it was established by the American Bar Association, the Foundation was located at the American Bar Center on the

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