Judge Harlan Waits

Almost four months after his nomination to the Supreme Court, John Marshall Harlan is still spending most of his afternoons before the Senate Judiciary Committee in Washington, instead of filling the vacant ninth place in the Court building. He has been detained, unfortunately, by questioning that daily grows more absurd and insidious.

Considering both the excellent qualifications of the nomince and the importance of the Supreme Court's works, such procedure is particularly unfortunate. Harlan's nomination has been before the Committee since January 10, and observers predict it will probably stay there for another two weeks. At these hearings the judge has heard himself opposed because of his "in experience," because he favors the United Nations and "may supply the judge necessary to abolish the United States by judicial decision," and because he was a Rhodes Scholar.

Such objections are, of course, patently absurd. They are the same type of irresponsible charges that a year and a half ago delayed Senate confirmation of Chief Justice Earl Warren. At the hearings on Harlan's nomination, however, there has arisen a new kind of attack, far more subtle and dangerous than the usual obviously judicious nomince, in effect, just how he would vote on various cases which might come before him.

Last Friday, Senator Eastland, Democrat of Mississippi, asked Harlan: "Would you approve a treaty that would deprive the people of rights guaranteed them by the Constitution?" When the nominee replied that it would be "indiscreet and inappropriate" for him to reply, Eastland followed with a comparable question concerning school segregation. The implications of such interrogation are alarming. The decisions of justice, whose task it is to interpret the Constitution without prejudice, are fundamentally different from those of a legislator, whose first responsibility is to his constituents. When Senators try, then, to assure that a Federal judge's opinions will mirror their own, they are attempting to blur the traditional line between legislative and judicial functions of the Government.

Nothing but harm can result from the Senators' present tactics. They should drop their charges and approve Harlan's nomination at once.