UNITED STATES OF AMERICA (iongrrssionalRrcord

th PROCEEDINGS AND DEBATES OF THE 90 CONGRESS FIRST SESSION

VOLUME 113-PART 5

MARCH 7, 1967, TO MARCH 15, 1967 (PAGES 5573 TO 6866)

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1967 Ll1~rch 13,196'1 CONGRESSIONAL RECORD - SENATE 6459 Nearly a year prior to the Mansfield report, State. Rusk and General Westmoreland­ vice for the enactment of a minimum other, senators, including Church of Idaho, R'usk saying that we had already tried this wage law covering the District of Co­ Clark of Pennsylvania, Bartlett of Alaska, approach and Westmoreland saying it was Gore of. Tennessee; and Nelson of Wisconsin, too dangerous to try. lumbia. He was indeed the District hadraised pointed questions about our Viet­ The treatment given Kennedy recalled the Committee's principal adviser, trusted by nam polley.. I belleve it was this senate fioor President's sudden rush to Honolulu a year, Senators on both sides of the aisle, arid discussion early in, 1965 which finally ago when Senator FUlbright's hearings were a participant in every critical sessionaf prompted the President to make his April 7, capturing mass television audiences and the District Committee's discussions of' 1965, offer at Baltimore for unconditional large news headUnes. this legislation. It could be rightly said; discussions"with Hanoi.; On the.afternoon Those of us who have observed the lnab11lty that ,the minimum wage law today for of the. Baltin{ore address, the, President of such prestigious s'enators as Mansfield, the District of Columbia is a monument called $el').ator Church andme to, his omce Fulbright and Kennedy to influence signifi­ at the White House to examine an advance cantly our policy can be at least partially for­ to Joe Goldberg. cOIJY of his text and to tell us in effect that given if we conclUde that our own less pub­ I know that Joe Goldberg's death will WEt were "getting our way'; on the negotia." licized efforts are of limited value. be a loss to the Department of Labor and tion offer. Actually, the speech struck a It shOUld be noted that the Senate critics Ii loss to Esther Peterson, for whom he shrewd balance between hawks and doves' have experimented with a variety of ap­ was an immediate assistant, but most of and was accompanied by an escalation of the proaches "to reach the President's ear." all I know it will be a loss to his Wife war. It, did, howe,er, represent a partial Most of the dissenters have accompanied and children. response to Senate dissent, though I have their criticism with positive alternatives to come to think it waS primarily calculat"d to out present course. Their initiatives have I hope especially that his son,Stephen, disarm the dissenters at home and abroad b~en backed by many of the nation's most and daughters, Susan and Lucy, will grow without changing polley...... vocal citizens and IJrivata groups. Seldom and mature with the image of their The 37-daybombing pause of late1965 and in our history have so many enUghtened and father before them, an image of devo-' early .1913.6 was also partiallY an ,outgrowth morally sensitive poUtical. religious and ed­ tion to the American people, and a per-, of Senate pressure. Sixteen senators, .in­ ucational leaders joined in opposing a war­ son of great moral character. eluding Hartke of Indiana and McCarthy of time polley of our government. Minnesota, signed .a letter urging an ex­ , Their principal satisfaction to date, how­ tension of the bombing pause. These sena~ ever, has been the nervous, unprovable as­ tors have individually and in groups subse­ sumption that we would be involved in an THE QUALITIES OF VICE PRESIDENT quently taken issue with the omcial line. , even larger war had it not been for the critics "HUMPHREY To grasp both the frustration Of dissent­ both in and out of the Senate. There may ingsenators and their 11mlted impact on Ad­ be the further hope that while dissent is Mr. MONDALE. Mr. President, re­ ministration policy, it is necessary to con­ not likely to halt a. war it serves to point up cently, the Washington Post commented sider the. experience of senator Robert the painful lessons that we must learn if editorially on a remark made by Presi­ Kennedy. Because of the prestige Of his we are to avoid another such ill-advised dent Johnson to the effect that Vice name, the size of his state"and his possible venture in the future. President HUBERT H. HUMPHREY is an presidential interests, any'statement by the To the man who writes "Why don't you able and indispensable ally. That edito­ junior senator from New York is assured of speak out, Senator?" my answer is, "We have, rial does, I believe, a highly commend­ much closer press coverage and attention by. and we can only pray that it has served some the Administration .than the average senator useful. purpose." able job of evaluating the performance could expect.. .. , . GEORGE MCGOVERN. of HUBERT HUMPHREY as Vice President. On Thursday morning; March 2, Senator I ask unanimous consent that it be Kennedy called to advise me that he' ex­ printed in its entirety following the con­ pected to take the sena:te, floor that after­ DEATH OF JOSEPH GOLDBERG, elusion of my remarks. noon at 3 p.m. to discuss American polley in DEPUTY ASSISTANT SECRETARY The PRESIDING OFFICER. Without Vietnam. He ancl his advisers had been at OF LABOR objection. it is so ordered. work for weeks on a major Vietnam proposal and had been calUng other senators and Mr. MORSE. Mr. President, on Sun­ Mr. MONDALE. Mr. President, as members. Of the press to alert them~ , : day, March 12, Joseph Goldberg, the students of constitutional history know, That afternoon, When Kennedy took the Deputy Assistant Secretary of Labor, the role and mission of the VicePresi­ floor, the press gallery was jammed and a. died at the age of 53 from a heart attack. dent has been greatly expanded in recent considerable number of senators were in . Joseph Goldberg's death is a real loss years, The duties of today's Vice Presi­ their seats with advance copies of the speech to the people of the United States and dent require a depth and breadth of skill" which called for a cessation of the bombing experience, and judgment which could of North Vietnam accompanied by an invi­ the citizens of the District of Columbia, tation to.Hanoi to begin peace negotiations and it is a loss to me personally. not have been imagined by the Founding within a week. Joe was born In Poland, and his rise Fathers who, after all, failed to define As the semitor was preparing to speak, to outstanding accomplishment and serv­ the duties of that office after considering the Administration launched a series of ice to the United States is heartwarm­ a' committee report which had been strenuous' moves to "kill" the speech. The ing. I first met Joe in 1960, when he was drawn up over a single weekend. White House quickly'called an impromptu It has been said of the Presidency that news conference to announce that Russia assigned to the Committee on Labor and had agreed to a proposal made;weeks before Public Welfare as technical adviser to the office shapes the man. While the to discuss methods of limiting the arms race. the SUbcommittee on Labor during its same bit of conventional wisdom applies The President also reiterated his determina­ consideration of amendments to the Fair to the Vice Presidency, future commenta­ tion to continue the bombing. In a. rather Labor Standards Act. tors will surely note the singular con­ remarkable contrast.to the days when we As almost any Member of Congress will tribution which HUBERT HUMPHREY has used to regard the war as primarily a Viet­ agree, the Fair Labor Standards Act, made personally in shaping that high namese conflict with our forces there simply governing minimum wages and working office and in giving it new life and a very to assist Saigon, he added: "I think the special place in the American political American people should know that this is a conditions for millions of American question between their PreSident, their workers, is one of the most intricate and experience. country, their troops, and Mr. Ho Chi Minh complex fields of the law. Joe soon I am pleased to commend this editorial and the troops that he is sending in from demonstrated that he was an expert, but to the attention of Senators who, far bet­ the North. Everyone can take Whatever side even more he demonstrated an honesty ter than most persons, ,know firsthand of the matter he wants." As The Washing­ and integrity, a passion for the poor and the brilliant competence of Vice Presi­ ton Post observed the. following day, the underprivileged who were unprotected dent HUMPHREY. President was reacting as though the war were "no more than a personal vendetta be­ by this law. A MODEL VICE PRESIDENT tween Lyndon Johnson and Ho Chi Minh." It was not until 1961 that the Fair It is good to know that President John­ No matter the Views or interests of our ally Labor Standards Act amendments, son appreciates the quallties of Vice Presi'; in Saigon or our principal enemy, the Viet bringing the minimum wage up to $1.25, dent Hubert Humphrey as a public servant. Cong in the South, or the United States---" were adopted. Joe continued to provide His kind remarks about the Vice President please keep out Of this private affair between valuable help to Members of Congress at the press conference on Thursday cer­ the White House and Ho Chi Minh! that year. He was in constant attend­ tainly are deserved. It would be dismaying Kennedy's suggestions for negotiation'tied indeed if the President did not hold these to a bombing pause were further blanketed ance at markup sessions of the commit­ views. by a letter which the President had prev!...; tee and helped us with many constituent ,The Vice President has brilliantly suc­ ously arranged for release through senator complaints. ' ceeded in an office that presents the greatest Henry Jackson. SimUltaneously, Kennedy's' Starting in 1963 and culminating in dl11iculty' to a. man of his temperament and proposal was being blasted by Secretary.' or 1966, Joe provided expert technical ad- genius. Congress has given him twa special J~C ; 6460 CONGRESSIONAL RECORD - SENATE March I3, 1967 tasks to which he devotes great attention­ 1967 issue of the American Bar Associa­ THE CASE OF THE FEDERAL JURY REFORM outer space and undersea exploration. The tion Journal, be printed in the RECORD. (By PHILIP A. HART, U.S. senator from President bas showered blm Witb special There being no objection, the articles Michigan) duties and missions. He has dealth With The bll.Sic responsiblllth!sof juryofflcials, all of them competently and quietly. His­ were ordered to be printed in the RECORD, as follows: federal and state, are imposed by tbe Con­ tory ",ill have to disclose how valuable he stitution. "The American tradition of trial has been in the inside counclls of the Ad­ THE SELECTION OF FEDERAL JURORS by jury, considered in connection wltb either ministration but there is reason to believe be (A discussion of proposed changes by Sena­ criminal or civil proceedings, necessarily con­ has been very useful there. tors PHILIP A. HART of ~nchigan and SAM J. templates an Imparti!J.l jury drawn from a The most important legacy tbat he wlll ERVIN Jr., of North Carolina) cross-section of the community." Thiel v. leave tbe country will be a concept of tbe (NoTE.-On the following pages, two dis­ Southern Pacific Company, 328 U.S. 217, 220 Vice Presidency that fits both its subordinate tinguished members of the United States (1946) . The Supreme Court has recognized position in the Executive Branch and the Senate set forth differing views on how the that It is impossl1:lle to select completely rep­ necessities of modern administration. Not names of prospective jurors should be resentative juries. "Neither the jury roll for an Instant has be allowed himself a word chosen for the federal courts. The problem nor 'the venire need be a perfect mirror of the or a deed that would Indicate any confusion was before the 89th Congress as Title I of cqmmunity or accurately reflect the propor­ about the place Where there resides the the much-debated Civil Rights Bill of 1966, tionate strength of every identifiable group," constitutional duty and power to speak for and It seems certain that similar legislation Swain v. Alabama, 380 U.S. 202, 208 (1965). the Government of the United states. He will be Introduced in the new Congress. But the Court has made It equally clear that has rightly said, and repeatedly said, that (Surprisingly enough, the question is not the Constitution not only bars conscious dis­ there can be only one authoritative voice-­ one that has received much attention from criniinatlon, but tbat jury offlcials have a and that is the voice of the President. He the organized Bar. A resolution opposing "constitutional duty ..• not to pursue a has been the President's echo on every pub­ the provisions of Title I was introduced in course of conduct In the administration of lic polley discussion of the Administration. the House of Delegates in Montreal last their offlce which would operate to dis­ And whenever the Vice President, under our August and was voted down after several criminate in the Selection of jurors on system, tries to be anything other than that, hours of heated debate. At that time, ~a racial grounds". .Hill v. Texas, 316 U.S. 400, "the trumpet maketh an uncertain sound." former President of the Association remarked 404. (1942). Other decisions m::tke it clear No wonder the President admires his pub­ that "in some Inexpllca1:l1e fashion" the sub­ that discrimination In jury selection on ac­ lic service. The thoughtful citizens of this ject had until then escaped the attention of count ofreliglon, sex, national origin or eco­ country also admire it and understand it. the legal profession. nomic status is similarly proscribed.1 In He Is, in truth, the very model of a model (According to its sponsors, Title I was in­ other words, juryofflcials have an: affirma­ Vice President. tended to assure that federal grand and petit tive- duty to insure that their source lists jurors are selected from a full cross section of potential jurors substantially reflect a of the community. The legislation con­ broad cross-section of the populatlon,of the SELECTION OF JURORS IN FEDERAL tained four basic features that were meant community and that the SUbsequent steps COURTS to accomplish this. In the selection process will operate in the (First, the bill specifically stated tbat no long run to prodl;lce trUly representative Mr. ERVIN. Mr, President, the. ad­ citizen "shall be denied the right to serve on Juries. .. . ministration's current civil rights bill, grand and petit juries ... on account of The fundamental defect in the present like its predecessor which was defeated race, color, religion, sex, national origin, or laws relating to the selection of federal in the Senate last year, contains in title economic status". The present law, Section juries--:...contained In Chaper 121 of the Judi­ I extremely important proposals fora 1863 of Title 28 of the United States Code, cial. Code-is that they do not· alford suffl­ selec~ merely prOVides that no citizen "shall be ex­ cient guidance to federal jury commissioners revolutionary reform of the jury cluded from service ... on account of race as to how they should discharge the duties tion procedures in the Federal courts. or color". Imposed. upon them by the Constitution. One of my major objections to this pro­ (Next, the legislation designates voter reg­ No specific source ,of namesofpotentlal jur­ posal.has been that its merits have never istration lists as the exclusive source from ors is prescribed, and the subsequent steps in been adequately analyzed-either in which names of prospective jurors may be the selection process are left largely to local Congress or in the country at large. The drawn. The only exception is the case where determination. The pra.ctlcal consequences proposals~ use of the registration rolls would stlll not of this lack of statutory guidance were administration's jury selection summed up by one of the district court clerks de~ produce a true cross section. In that case, have been shielded from meaningful the judicial council of the circuit could order who submitted statements to the Subcom­ bate by the decision to make them a civil the addition of other names in order to mittee on Constitutional Rights of the Senate rights issue. . achieve a cross section. The present law, JUdiciary Committee in tbe course of the sub­ To some extent this unfortunate situ­ Section 1864 of Title 28, specifies that the committee's hearings on the Administration's ation has improved in recent days. I was names of prospective jurors shall be drawn 1966 Civil Rights Bill: . pleased that the junior Senator from from a box containing the names of not "Faced with the lack of statutory guide­ Maryland [Mr. TYDINGS] chose to in­ fewer than 300 persons, but it does not spell lines as to an acceptable system of jury se­ troduce a series of six alternative pro­ out how the names are to be obtained. lection, and cognizant of the many directives (Third, the legislation compels use of a arising out of decisions of the courts affecting posals for jury selection reform and .that master jury wheel from which the names of jury selection generally,the Federal jury he has scheduled these bills for hearings potential jurors would be selected at random. commissioners are faced with an extremely in his Subcommittee en Improvements in The only quaiifica.tlonsthat could be re­ dlfflcult task in order to perform their duties Judicial Machinery of the Committee on quired of jurors are' abillty "to read, write, and fulfill the responsibllties of their offlce," 2 the Judiciary. I hope that in this way speak, and understand Engllsh". No higher The present systems for. selecting federal jury reform can be evaluated on its own qualifications could be imposed, and thus juries do vary significantly .from district to merits. the "blue ribbon jury" or the "key-man sys­ district.. It may be that in most districts tem", used in many parts of the country, federal juries are more or less representative Apparently, the editors of the Ameri­ would be eliminated. This is one of the most of the population. But ther~ is considerable can Bar Association Journal have also controversial features..ofthe proposal. evidence that the val"ied systems now used appreciated the fact that the 1966 debate (Finally, the legislation includes a chal­ in many areas do not produce truly repre- on civil rights failed to produce much en­ lenge provision whereby any defendant in a sentative juries. . lightened discussion of these vel'y'serious criminal case would be entitled to dismissal An informal survey conducted by the De­ jury proposals; They recently asked the or a stay of proceedings on the ground of partment of Justice last year with respectto failure to comply with the blll's provisions. the composition of jury panels and llsts of senior Senator from Michigan [Mr. qualified jurors in certain federal judicial HART] and me tel present in essayform (Senator Hart urges that these proposals be adopted. He argues that the present statute districts In the South indicates that Negroes a summary of the arguments for and allows jury commissioners toomucb leeway have been substantially underrepresented on against title I. The provocative article in selecting jurors and he points out that juries In several federal courts in that area." by. Senator HART is really the first Negroes have been substantially underrep­ thoughtful statement by the proponents resented on juries in the South. 1 See Showgurow v. Maryland, 213 A. 2d of title I, and it has helped to raise the· (Senator Ervin argues that the proposal is 475 (Md. 1965); White v. Crook, 251 F. SupP. awkward and perhaps unworkable. He con­ 401 (M.D. Ala. 1966): Hernandez v.Texas, 347 level of debate toward its proper plane. tends that the goal of juries that are a tiue U.S. 475 (1954): Labat v. Bennett, 365 F. 2d In the interest of widening this discus­ cross sectionof the cOJIlmunity iaan impos,:. 698 (5th Cir. 1966). sion still further, I ask unanimous con­ sible one, and he points out that the stand­ • Hearings. Bejore the Subcommittee on sent that the article entitled "The Case ards imposed by the legislation are at odds Constitutional Rights oj the Senate Commit­ for Federal Jury Reform," written by with the statement of the Judicial Confer­ tee on the Judiciary on S. 3296, 89th Cong., 2d ence of the United States that jury commis­ Sess., pt. 2, at 1463~1464 (1966). These hear­ Senator PHILIP A. HART, and my article sioners should selec't jurors of "as high a de­ ings are hereafter cited as SUbcommittee entitled "Jury Reform Needs More gree of integrity, Intelligence, morality and Hearings. Thought," published in the February common sense as possible".) 3 Subcommittee Hearings, at 238,