to a rather nominal function but the problem that confronts us here, and confronts us in a number of the nominations that the Senate must decide upon, are rarely that easy.

Usually it will require a careful review of all the statements of a nominee, all of his acts, the totality of his conduct put into perspective of the time and the period and the situation under which it occurred.

We do not have any trouble whatsoever, Mr. Chairman, and members, in saying that in applying a reasonable and fair test in the world view, into the outlook of this nominee, that the positions that he would espouse from the Court, based on what he has said and done in his capacities in public life up until now, could clearly indicate to us a danger as certain as if we found some obviously compelling evidence that would disqualify him by its revelation.

Senator HART. Thank you, gentlemen. You watch us every day and we pretend we think we can get into the shoes of a black American or see life as a black American sees it and we know we are kidding ourselves. This does not excuse us from making the effort, but having testimony from you, speaking for the black caucus, is an enormous help. Thank you.

Mr. CONYERS. Mr. Chairman, may I point out that there is yet another statement coming from precisely the same people. If there are no questions that would be put to us on the nomination of Mr. Rehnquist, then concerning the statement on the other nominee, I would raise the question with the Chair with respect to the hour and whether it would be best presented at this point or at another time or under whatever procedure these hearings are being conducted.

Senator BAYH. While the Chair is deciding that, may I ask one question of our witness?

First of all, we appreciate the fact that although the Constitution does not technically give the "other body" a voice in the nominating process, this is not the first time that those of you in the House who are deeply concerned about this area of human rights felt compelled to make what I feel have been significant contributions to the deliberative process in the Senate as we look over the nominations and I am glad you have done so.

Do you, any of you, have any specific information pro or con relative to some of these specific issues that you have heard us discuss with Mr. Mitchell and Mr. Rauh as to Mr. Rehnquist's position on the equal accommodations matter, the school desegregation matter, or the voting practices, the allegations that certain types of intimidation were utilized against the minority, or can you give us any specific instances, or any specific evidence that would further elaborate on what has been said in this area?

Mr. CONYERS. Senator, we do not have any factual or firsthand information that would shed any light on the questions that you raise. I am hopeful that you will, in addition to that, perceive that the questions that we raise do not really require that.

We are perfectly satisfied and willing to accept the nominee on the basis of his public statements that he chooses not to separate himself from his official capacities. Just as you and I have our public records which we would find very difficult to separate from us, I presume the same applies to him.

I am perfectly willing to assume that it was upon that basis that not only the President saw fit to nominate him but that he would ask us to see fit to evaluate him.

Senator BAYH. Of course, I am sure you recognize that there might. well be a distinction between the information or evidence necessary. to convince us personally, and that, once having been convinced personally that a certain cause is just or a certain nominee is qualified or unqualified, needed to explore the whole record to find whatever evidence might be available so that others might share our belief. It is in that direction I asked the question but I appreciate your comment. Mr. CLAY. Senator, I think that when you read our whole position paper you will find that the underlying basis for our opposition to Mr. Rehnquist is based primarily on his judicial philosophy, and what we are saying in effect is that when judicial philosophy becomes a primary basis for nominating a person to the Supreme Court that it also must become the primary consideration for this Senate in confirming that person for the Supreme Court, and it is our contention that any person who has a documented history of anticivil rights positions, and anticivil liberties positions and philosophies is unequivocally unqualified to sit on the Supreme Court of the United States.

It was in that light that we prepared this position paper, and are presenting it to you.

The CHAIRMAN. Now, as I understand it, you want to testify against the other nominee.

Mr. CONYERS. Mr. Chairman, we would be willing to defer this. We are prepared

The CHAIRMAN. I would rather go on; let's clear this whole thing one way or another.

If you are prepared to testify, proceed.

Mr. CONYERS. Very well, thank you.

Mr. Chairman, would you excuse my colleague, Mr. Clay, who is attending on behalf of myself a meeting of the black caucus. His presence is urgently required.

Mr. Chairman and members, I will read only briefly from the prepared testimony. I ask to have the entire statement included in the record.

The CHAIRMAN. It will be admitted.

Mr. CONYERS. In considering the nomination of Mr. Louis F. Powell or in fact any other nominee to the Court, I do not think anyone would deny the Presidential prerogative of examining a potential candidate's philosophy before placing his name before the Senate for confirmation nor is there any requirement of the type of philosophy a nominee should espouse. But it also follows that there is nothing to preclude the Senate from laying bare that nominee's predilections, but even more than that, it has a responsibility to do so.

May I point out that many of the Founding Fathers feared that nominal "advice and consent" of the Senate on nominations to judgeships would create a dependency of the judiciary on the Executive.

It was their intent to make the judiciary independent by insisting on joint action of the legislative and executive branches of each nomination.

Consequently, again it has been pointed out with relation to the Senate's constitutional duty in advising on presidential nominations that "a Senator voting on a presidential nomination to the Court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee's views on the large issues of the day will make it harmful to the country for him to sit and vote on the Court, and that, on the other hand, no Senator is obligated simply to follow the President's lead in this regard, or can rightly discharge his own duty by doing so."

I trust that the distinguished members of this body will not regard it as presumptuous if I reiterate the basis upon which the approach ought clearly to be made in terms of the evaluations and the weighing of credentials and the examinations of a nominee.

It is obviously a heavy responsibility, it is burdensome, but I think that not to be looking carefully at the world view of the outlook that has developed through the nominee's own set of experiences is to omit and eliminate a very wide and important part of your responsibility in making the decision as to whether to advise the President favorably or unfavorably with regard to the nomination.

Competency as a legal technician is not sufficient cause for appointment to the Supreme Court. Since judges by definition must sit in judgment, exercising what Oliver Wendell Holmes called the "sovereign prerogative of choice," they must bring more to their task than a highly specialized technocracy. What a judge brings to bear upon his decision is the weight of his experience and the breadth of his vision, as well as his legal expertise.

In the words of Felix Frankfurter, a Justice ought to display both "logical unfolding" and "sociological wisdom." Or, as Henry Steele Commager put it: "Great questions of constitutional law are great not because they embody issues of high policy, but of pub ic good, of morality." Similarly, great judicial decisions are great not because they are brilliant formulations of law alone, but because they embody highmindedness, compassion for the public good, and insight into the moral implications of those decisions.

With that background we would urge a careful consideration of the nominee, and suggest that such consideration might lead to a negative vote and a rejection of his nomination on the part of the Senators here and in the body as a whole.

You see, for the past few days the press and the supporters of the nominee have been treating us to a view of Mr. Powell which would have us believe that he was the champion of the successful, gradual integration of the Richmond school board, and presided over the "successful, disturbance-free integration of the city's schools in 1959." While it is true Mr. Powell sat on the school board of the city of Richmond from 1950 to 1961, serving as its chairman during the last 8 years of that period, something less than successful integration took place.

The opinion of Circuit Judge Boreman, a distinguished member of the court not noted for his liberal views, in a case entitled Bradley v. School Board of the City of Richmond, Virginia, participated in by distinguished counsel who sits here with me, clearly documents the fact that in Richmond, only a matter of months after Mr. Powell had

left the city school board, after serving as a member and chairman all those years, the court in the case found a "system of dual attendance areas which has operated over the years to maintain public schools on a racially segregated basis has been permitted to continue.' What the very words of the U.S. Court of Appeals, Fourth Circuit, indicate beyond any doubt is that Mr. Powell's 8-year reign as chairman of the Richmond School Board created and maintained a patently segregated school system, characterized by grossly over crowded black public schools, white schools not filled to normal capacity, and the school board's effective prepetuation of a discriminatory feeder or assignment system whereby black children were hopelessly trapped in inadequate, segregated schools.

The entire text of the Bradley opinion is submitted for the record of these proceedings so that it may be carefully scrutinized by this committee and Members of the Senate in order that a more accurate view may be gained of the conditions that existed under the Powell administration.

(The opinion referred to follows:)

BRADLEY V. SCHOOL BOARD OF CITY OF RICHMOND, VIRGINIA

Minerva Bradley, I. A. Jackson, Jr., Rosa Lee Quarles, John Edward Johnson, Elihu C. Myers and Elizabeth S. Myers, Appellants,

V.

The School Board_of_the_City of Richmond, Virginia, H. I. Willet, Division Superintendent of Schools of the City of Richmond, Virginia, and E. J. Oglesby, Alfred L. Wingo and E. T. Justis, individually and constituting the Pupil Placement Board of Commonwealth of Virginia, Appellees.

No. 8757.

United States Court of Appeals

Fourth Circuit.

Argued Jan. 9, 1963.

Decided May 10, 1963

Action by Negro pupils, their parents and guardians to require transfer of pupils from Negro public schools to white public schools and, on behalf of all persons similarly situated, for injunction restraining defendants from operating racially segregated schools. The United States District Court for the Eastern District of Virginia, at Richmond, John D. Butzner, Jr., J., ordered that individual infant plaintiffs be transferred to schools to which they had applied but refused to grant further injunctive relief and plaintiffs appealed. The Court of Appeals, Boreman, Circuit Judge, held that where a reasonable start toward maintaining nondiscriminatory school system had not been made, plaintiff pupils, on behalf of of others in class they represented, where entitled to injunction restraining school board from maintaining discriminatory "feeder" system whereby pupils assigned initially to Negro schools were routinely promoted to Negro schools and, to transfer to white schools, they must meet criteria to which white students of same scholastic aptitude would not be subjected.

Reversed in part and remanded.

Albert V. Bryan, Circuit Judge, dissented in part.

1. Schools and School Districts155

Case of one of pupils who brought action to require transfer to pupils from Negro public schools to white public schools became moot, where he was assigned by Pupil Placement Board to integrated junior high school to which he had applied.

69-267-71-24

2. Schools and School Districts155

School board and superintendent of schools were proper parties to action to require transfer of pupils from Negro public schools to white public schools where, although state Pupil Placement Board has authority over placement of pupils and local officials refrained from making recommendations to Board, approximately 98 percent of placements were made routinely as result of regulations of school board pertaining to attendance areas and Pupil Placement Board had no inclination to vary those attendance areas, although it had authority to do so. Code Va. 1950, §§ 22-232.1 to 22-232.31.

3. Schools and School Districts154

That Negro applicants for enrollment in the first grade of white public schools were assigned to such schools, that two high schools had been constructed to accommodate all students in attendance areas, that any Negro student attending white school was, upon promotion to another school, routinely assigned to white school, and that some Negro students had been assigned to schools in white attendance areas did not evidence reasonable start toward maintaining nondiscriminatory school system, where pupils assigned initially to Negro schools were routinely promoted to Negro schools and, to obtain transfer to white school, pupil must meet criteria to which white student of same scholastic aptitude would not be subjected. Code Va. 1950, §§ 22-232.1 to 22-232.31.

4. Schools and School Districts 155

Where a reasonable start toward maintaining nondiscriminatory school system had not been made, plaintiff pupils, on behalf of others in class they represented, were entitled to injunction restraining school board from maintaining discriminatory "feeder" system, whereby pupils assigned initially to Negro schools were routinely promoted to Negro schools and, to transfer to white schools, they must meet criteria to which white students of same scholastic aptitude would not be subjected. Code Va. 1950, §§ 22-232.1 to 22-232.31.

5. Schools and School Districts 154

It was primarily the duty of school board to eliminate discriminatory system with respect to placing of students in schools.

Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Richmond, Va., on brief) for appellants.

Henry T. Wickham, Sp. Counsel, City of Richmond (J. Elliott Drinard, City Atty., Richmond, Va., and Tucker, Mays, Moore & Reed, Richmond, Va., on brief) for appellees, The School Board of the City of Richmond, Virginia, and H. I. Willet, Division Supreintendent of Schools.

Before Boreman, Bryan and J. Spencer Bell, Circuit Judges.

Boreman, Circuit Judge.

[1] This is a school case involving alleged racially discriminatory practices and the maintenance of public schools on a racially segregated basis in the City of Richmond, Virginia. In September 1961 eleven Negro pupils, their parents and guardians instituted this action to require the defendants to transfer the pupils from Negro public schools to white public schools. The plaintiffs also pray, on behalf of all persons similarly situated, that the defendants be enjoined from operating racially segregated schools and be required to submit to the District Court a plan of desegregation. The District Court ordered that the individual infant plaintiffs be transferred to the schools for which they had applied. This appeal is based upon the refusal of the court to grant further injunctive relief.

[2] Defendant, Virginia Pupil Palcement Board, answered the complaint, admitting that plaintiffs had complied with its regulations pertaining to applications for transfer but denying discrimination and other allegations of the complaint. The defendants, School Board of the City of Richmond and the Richmond Superintendent of Schools, answered and moved to dismiss on the ground that sole responsibility for the placement of pupils rested with the Virginia Pupil Placement

1 Of eleven original pupil plaintiffs, one was assigned by the Pupil Placement Board to an integrated Junior High School to which he had made application before the hearing in the District Court. His case became moot.