Solicitor General

            That December, McKeldin appointed his long-time friend and advisor to succeed Charles Markell as Chief Judge of the Maryland Court of Appeals, making Sobeloff the first Jew to sit on Maryland’s highest court and only the fifth member of his faith to head a state’s highest tribunal.  He served in that office only a little over a year, for on January 21, 1954, President Eisenhower appointed him Solicitor General of the United States.  Two and a half weeks later, the Senate unanimously confirmed him.  During the nomination hearings before the Senate Judiciary Committee, Senator William Langer (R., N.D.) was so impressed with the Marylander’s qualifications and the favorable testimony offered on his behalf, that he asked if Mrs. Sobeloff were present.  When it turned out that she was not, he ordered a transcript of the hearing sent to her.  Simon Sobeloff took office on February 25, 1954. 

            During his term as Solicitor General, he played a major role in determining two of the most hotly debated issues of the 1950’s, civil rights for blacks and civil liberties in the face of the red scare.  When Sobeloff took office, the arguments in the series of cases known as Brown v Board of Education had been completed.  After considerable hesitation and debate, the government had submitted a brief siding with the NAACP arguing against segregation.  On May 17, 1954, Chief Justice Earl Warren, speaking for a unanimous Supreme Court, ruled that “separate educational facilities are inherently unequal.”  Segregation, he continued, deprived the plaintiffs and others similarly situated of the equal protection of the laws guaranteed by the Fourteenth Amendment.  Acknowledging that the wide variety of local conditions presented by the cases created problems of “considerable complexity” in formulating decrees, the Court ordered the cases restored to the docket and request both sides to provide further argument on implementation. 

            As Solicitor General, Sobeloff inherited the responsibility of representing the government in the upcoming legal battle over implementation.  He and Philip Elman, the Special Assistant to the Attorney General on Civil Rights, prepared a brief arguing that the Court’s equity power made it unnecessary to order immediate relief, but that if the Court ordered a gradual adjustment, the decree should stress that the vindication of the children’s rights should be “as prompt as possible.”  Relief short of immediate admission to non-segregated schools necessarily implied the continuing deprivation of these rights.  They recognized that popular hostility posed a problem, one which needed to be recognized and “faced with understanding,” but it afforded “no justification for a failure to end school segregation.”  Finally, the wise variance in local conditions made a single blueprint or formula impracticable; therefore, they suggested remanding the cases to the courts of first instance with instructions requiring school boards to submit a satisfactory plan to desegregate within ninety days.  If the school board’s plan made no attempt at good faith compliance, the court would be required to order desegregation beginning the following school term.

            On Saturday morning, November 20, 1954, the Solicitor General met with the President to discuss the brief.  Eisenhower changed the wording to “as prompt as feasible,” eliminated a section which argued that the experience of the armed forces demonstrated that contact between the races diminished prejudice, and added a passage explaining that segregation existed for a long time with the moral and legal sanction of institutions in the South, and that, just as the Court recognized the psychological factors in eliminating segregation, it should recognize similar factors in demanding compliance.  Despite the changes, the brief won praise from the liberal and moderate press both in the North and South.  The Court’s implementation ruling closely followed the outline of the government’s brief.  It omitted, however, the ninety day time limit, replacing it with an order that desegregation begin immediately and proceed with “all deliberate speed.”  Much of Sobeloff’s subsequent career would be devoted to implementing and clarifying that decision. 

            His tenure as Solicitor General also thrust him into the center of the maelstrom of anti-communist hysteria.  By the time Sobeloff assumed office, the controversy over internal subversion had been raging for years.  He openly expressed criticism of some aspects of the loyalty program, stressing in his public speeches the importance of maintaining national security without abandoning traditional procedural safeguards for the rights of the accused.  If democracy were to survive, he warned, “we must discipline ourselves to respect the rights of those who honestly differ with us, and to accord fair treatment and due process even to those of whose bad faith we are convinced.”  Setting aside procedural “guarantees to serve the immediate purpose” would render them unavailable “to prevent the crushing of honest and loyal men.”  Just as he had opposed the overzealous prosecutor of prohibition days, he had no sympathy for the witch hunter of the McCarthy era.  “If we, ourselves, pull down the edifice of our freedoms, wherein,” he asked, “is our triumph?”  Nor did he limit his opposition to words alone.  In the face of pressure from within the Justice Department, he refused to appeal the case of Owen Lattimore, a mildly dissident academic, after Judge Luther W. Youngdahl of the Court for The District of Columbia declined to uphold an indictment. 

            The case of Dr. John Plunnet Peters, however, brought Sobeloff into direct conflict with the administration and onto the front page of the newspapers.  Peters, the Senior professor of Medicine at Yale University, also served as a part time consultant to the Public Health Service.  From four to ten days a year he came to Washington to review grant applications.  In January 1949, the department loyalty board decided that no reasonable grounds existed for believing that he was disloyal to the United States.  On April 30, 1951, Truman issued an executive order changing the standard for dismissal of government employees from “reasonable grounds for belief that the employee was disloyal” to “a reasonable doubt as to the loyalty of the person involved.”  The department boards held another hearing and again cleared Peters.  Later that month, the Loyalty Review Board “post audited” (reviewed on its own initiative) Peters’ case, and on May 22 found that a reasonable doubt did exist a to his loyalty. 

            Peters sought remedy in the court system.  After losing in the District Court for the District of Columbia, Peters’ attorneys, the prestigious and public minded firm of Arnold, Fortas, and Porter, appealed to the Supreme Court.  When the Peters case came to his desk, Sobeloff initially concluded that it was not the ideal case with which to review the security program, since it involved the Truman program which had since been replaced and it also involved the post audit procedure, which could easily become the determining factor in the Court’s decision.  After reviewing the file, Sobeloff was skeptical of the evidence against Peters and uncomfortable that the names of some of the informants against him were withheld from both Peters and the Board.  He sent a memorandum stating his position to Attorney General Herbert Brownell.  Moreover, he told Brownell that he was “bound to conclude that the government can no longer confidently rest upon any easy generalization that a loyalty or security program for its employees raises no constitutional difficulties because Government employment is a “privilege and not a right.”” “Of course,” he agreed, “no person has a right to a federal job, any more than he has a right to a radio station license or an air route certificate.  But it does not follow that he has no right to due process.”  Asserting that the Fifth Amendment “is a command to the Federal Government that it must afford due process in all its dealings with citizens in matters affecting their life, liberty or property,” he proposed a confession of error – an admission that while the government won the case in the lower court, just would best be served if the decision in its favor were reversed.  He ended with a ringing challenge to the administration to live up to its articulated principles. 

            “The President recently said in his State of the Union Message: “We shall continue to ferret out and to destroy communist subversion.  We shall, in the process, carefully preserve our traditions and the basic rights of every American citizen.”  Now is the time, and this case the appropriate occasion, I believe, for showing the Court and the country that the administration is as firmly pledged to the second sentence as to the first.” 

            Apparently Brownell found Sobeloff’s arguments convincing and the Solicitor General drafted a brief reflecting the views expressed in his memo.  Several members of the Justice Department, including the Assistant Attorney General in charge of the Internal Security Division, William Tompkins, and Warren Burger, Assistant Attorney General in charge of the Civil Division, disagreed with Sobeloff’s position.  Sometime between February 16 and 18, 1955, Brownell changed his mind.  Columnist Joseph Alsop believed that Vice President Richard M. Nixon and other “politicians” exerted the decisive influence.  Sobeloff himself suspected that FBI Director J. Edgar Hoover may have convinced Brownell that a confession of error would be in the best interest of security; the FBI wanted to continue to protect the identity of its informant. 

            In any case, Sobeloff now faced a dilemma.  He felt that he could not argue the governments’ case under such circumstances.  Recognizing that an advocate need not agree with his client’s position, he nevertheless believed strongly that such a course did not reflect the best interest of the government or the development of law in the United States.  Although torn between two loyalties, there was no doubt in Sobeloff’s mind as to which course was proper.  He informed Brownell that he could not argue the case for the government.  David Bazelon agreed with Sobeloff’s action in principle, but the consequences of such a decision disturbed him.  He believed that the Solicitor General was “cutting off a likely appointment to the Supreme Court.”  He wanted to make sure that Sobeloff felt no pressure from his friends.  Sobeloff assured Bazelon, “No, I do not take this step because I want to be able to live with my friends.  I do it because I have to be able to live with myself.” 

            A new brief, actively supporting the case, was prepared and signed by Brownell, Deputy Attorney General J. Lee Rankin, Tompkins, and Burger.  Burger argued the case before the Supreme Court and lost.  Although both sides pressed for a constitutional decision, the Court, as Sobeloff originally predicted, ruled in Peters’ favor on the ground that the post audit procedure exceeded the jurisdiction granted the Loyalty Review Board by Truman’s executive order.  Justice William O. Douglas wrote a separate concurring opinion, taking his brethren to task for not deciding the procedural issue of confrontation.  He sent his reading copy of the opinion to Sobeloff, with the inscription:  “Dear Simon:  I wanted you to have this document.  With it come my affectionate regards.  WOD”

            Several months before the Peters case reached the Justice Department, Brownell had discussed with Sobeloff the possibility of replacing Morris Ames Soper on the United States Court of Appeals for the Fourth Circuit.  Soper was ill and tired, and sincerely wished to retire.  After the developments surrounding the Peters case, however, Sobeloff hesitated to accept the judgeship, fearing it might take on the appearance of a political deal.  While the Justice Department prepared to argue the case without him, he wrote a letter to his old friend and mentor, Judge Soper.  He restated his position that he should not accept a judgeship while the Peters case was still pending, for people “would disbelieve the fact that the offer was made long before the action in that case and they would question the Department’s and my motivations.”  He expected a decision in June and expressed the hope that “matters might remain in statu quo until then, but I fully understand your desire to be relieved as early as possible.  It would be a poor way to repay my heavy debt to you for a lifetime of kindness if I failed to realize – as I readily do realize – that I have no right to ask you to delay on my account.”  “The decision,” he concluded, “must be, and is, entirely yours.”  As it turned out, Soper waited to announce his retirement, and Sobeloff was appointed to the Fourth Circuit, but not until the Court decided the Peters case.