African-American History

Judge Simon Sobeloff – Moderate to the Extreme

PP286.78 Simon Sobeloff, Theodore McKeldin, and Earl Warren shak

Simon Sobeloff (2nd from right) shaking hands with Theodore McKeldin. Supreme Court Justice Earl Warren stands to the far left. Theodore McKeldin Photograph Collection, PP286.78, Maryland Historical Society.

In his home town of Baltimore Judge Simon Sobeloff (1894-1973) was known as a man of principle and conscience. Though a Republican himself, he had strong relationships with party members on each side of the aisle, including mayors Theodore McKeldin(R) and Thomas D’Alesandro Jr(D). As his grandson Michael S. Mayer put it, “[he believed that] the legal system functioned best when racial, religious, or ethnic minorities, the poor, or the politically unpopular received fair treatment.” Though his personal views were progressive, and he often sided with the marginalized segments of society, his principled approach was viewed by most as well grounded and moderate. When he reached the national stage at the dawn of the civil rights era, and in the midst of the red-scare, this all changed. He learned the hard lesson that there is no middle ground in the eyes of extremists – “if you aren’t with us you are against us.” From 1955-1956 Democratic senators representing anti-integration constituencies and using red baiting rhetoric and prejudiced pronouncements, delayed Simon Sobeloff’s appointment to the 4th Circuit Court of Appeals for over a year.

Sobeloff was born in 1894 to Russian Jewish immigrants living in East Baltimore. His father, employed as an upholsterer, sold leather cushions to the courthouse where his son would preside as a judge many years later. After attending Public School #43 on High Street, and then Baltimore City College, Sobeloff entered law school at the University Maryland, and was admitted to the Bar in 1914. In 1918, the same year he married his wife Irene Elrich,  he began his career in public service when he was appointed Assistant City Solicitor of Baltimore by his former patron and benefactor, Baltimore Mayor William Broening*. After a brief hiatus in private practice following a Democratic takeover of city politics, Sobeloff was named Deputy City Solicitor by Broening upon the Republicans return to power in 1927. As Deputy City Solicitor Sobeloff was a strong advocate of progressive reforms including promoting consumer safety regulations and pushing for the establishment of a minimum wage. During this period he became Mayor Broening’s closest advisor. Sobeloff also developed a strong friendship with future Baltimore Mayor and Maryland Governor Theodore McKeldin, at the time Broening’s secretary.

By 1930 Sobeloff was approached by his mentor, Judge Morris A. Soper** about becoming U.S. Attorney for the District of Maryland. Though he had some reservations about prosecuting prohibition cases, he eventually agreed, and was announced by President Herbert Hoover and confirmed by the Senate in 1931. As he predicted, his prohibition case load kept him more busy than he would have liked. Although Sobeloff found prohibition generally distasteful, he respected the rule of the land, and displayed a balance of personal judgement and respect for the Constitution which would characterize his career. Sobeloff showed leniency to  small time offenders while devoting his energy to higher profile cases. At the same time he had little tolerance for prohibition officers who stepped outside of the law.

By 1943, Sobeloff’s old friend Theodore McKeldin emerged as a political force in the city and was elected mayor; he immediately named Sobeloff, who had advised the campaign and penned many of the speeches, as City Solicitor.  Sobeloff’s job during the post-WWII era was defined by his continued pursuit of social justice and reform. Most notably he worked to provide public housing for neglected groups that had been dispossessed by slum clearance. Sobeloff became even more renowned for his reputation and high character when Democrat Thomas D’Alesandro Jr. decided to keep him on as City Solicitor after taking office in 1947. Sobeloff remained a close friend and adviser to both McKeldin and D’Alesandro Jr. throughout their careers.

PP286.79 Simon Sobeloff at podium. February 25, 1954.

Simon Sobeloff at a speaking engagement flanked by Theodore McKeldin and Judge Earl Warren. Theodore McKeldin Photograph Collection, PP286.79, Maryland Historical Society.

In 1954 Sobeloff was appointed Solicitor General of the United States by President Eisenhower and faced challenges that would come to define his career and cement his reputation as a man of conscience. He was approved unanimously by Congress with glowing reviews from both sides of the aisle (which, in a short time, would seem extremely ironic). In the wake of Brown vs Board and during the height of anti-communist hysteria, Sobeloff found himself representing the government’s position on two of the most inflammatory issues of the era: school integration and the loyalty program.

Though the Brown vs Board ruling  declared “separate but equal” schools were inherently unconstitutional, it did not address the specifics of implementation.  The ruling basically returned all of the relevant cases back to their respective local court dockets. It was Sobeloff’s responsibility as Solicitor General to represent the government in arguing the cases designed to implement the ruling across a vast landscape of complex local conditions. The difficulty in Sobeloff’s task was to create a policy which recognized both the impossibility of immediate enforcement, and the continued deprivation of civil rights caused by delay in enforcement. Though Sobeloff understood that local hostility to integration would be great he did not acquiesce and give in to fear. The deprivation of the rights of young African-American students would continue every day until the law was enforced. He brought a brief to the president which would require school boards across the country to come up with satisfactory enforcement plan to integrate within ninety days. Though President Eisenhower only made superficial changes to Sobeloff’s plan there was one large difference; it replaced the ninety day time limit with an unspecific order to move “with all deliberate speed.” Sobeloff’s brief greatly shaped the enforcement of integration – this would not go unnoticed by the enemies of racial equality.

Later that year, the case of Dr. John Plunnet Peters drew Sobeloff back into the public eye. Peters, a professor of Medicine at Yale, did several days of contractual grant-reviewing work for the government each year for a very small wage. After passing two separate loyalty tests, which were required at the time, Peters failed a third and was released from his contract. In between the second and third tests, the definition of grounds for dismissal was changed from “reasonable grounds for belief that the employee was disloyal” to “reasonable doubt as to the loyalty of the person involved.”Though he wasn’t bothered by the minimal loss of pay, Peters took issue with the principle of the matter.  The sources that supplied  the reasonable doubt to his loyalty were completely anonymous. His legal team challenged the accusations and lost the case at both the District Court in DC, and the Court of Appeals, before the case found itself on Sobeloff’s desk.

After careful consideration Sobeloff decided that this a poor case for the government to take, believing they would lose. He also felt the government was behaving unconstitutionally by denying Peters and the public the names of the accusers and therefore denying him due process to a fair trial.  Though attorney General Herbert Brownell initially agreed with him,  his mind had been changed by the time the brief was composed. Several journalists believed Vice President Richard Nixon and other politicians were involved in this shift of opinion;  Sobeloff himself suspected the J. Edgar Hoover and others may have been involved. The Attorney General took the position that the FBI needed to continue to protect its unnamed informants.

Knowing that this principled objection would be politically unwise, and probably cost him his one and only chance at a seat on the Supreme Court, Sobeloff stuck with his conscience. He decided that destroying communist subversion should not come at the cost of denying due process of the law, and refused to take the Peters case. In public speeches about national security Sobeloff said, “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.” Unfortunately southern Democratic Senators did not share this view when they decided to drag Sobeloff’s name through the mud later that year.

While the Peters case was being decided, Sobeloff’s long time mentor and friend Judge Morris Soper was preparing to retire from his seat on the 4th Circuit Court of Appeals, and both he and Attorney General Brownell approached him about being a replacement. Fearing it would look like a political deal, Sobeloff wrote Soper and apologized, telling him the timing was not right. Soper ended up delaying the announcement of his retirement until the case was decided, and things looked good to go. Sobeloff simply needed to be confirmed, which had never been anything but an easy process in the past. The political climate had changed drastically in the few short years since he was confirmed as Solicitor General, however, and the confirmation hearing became hyper-politicized by Southern Democrats in retaliation for his efforts to implement integration. Though the suggested ninety day implementation seemed moderate to Sobeloff, several Southern Senators saw it quite differently.

willis_robertson_speech_ms3121_box79E

A copy of Absalom Willis Robertson’s (D-Va) speech on the Senate floor in which he states that the people of his state find Sobeloff “onboxious.” Morris Soper Papers, MS3121, Box 79E, Maryland Historical Society

Democrats Strom Thurmond and Olin Johnson of South Carolina, agitated by the school desegregation cases, got James Eastland (D-Mississippi) of the Judiciary Committee to bottle up the nomination for over a year. On top of the desegregation cases, a core group of Senators,  pointed to Sobeloff’s “judicial activism,” his role in the Peter’s case, and a trumped up charge relating to  Baltimore Trust investigation from many years earlier. On the floor of the Senate, Senator Absalom Willis Robertson from Virginia called Sobeloff’s selection “an effort to woo certain political pressure groups in other parts of the nation by action which is offensive to a majority of the people in the region he will serve.” As confirmation looked more and more inevitable, the charges became more and more of a stretch.  When little dirt on Sobeloff could be found the Senators resorted to pointing to a Baltimore Trust case from twenty years before in which Sobeloff was alleged to have acted inappropriately. It wasn’t mentioned that the information was hearsay from a mentally disturbed individual who was known to dig through old files at the Baltimore Courthouse and be “habitually engaged in champertous practices.”   Just days before the confirmation, crosses were burned near his home as well as Chief Justice Earl Warren and Justice Felix Frankfurter, and the head of the Washington Branch of the NAACP.

Sobeloff_to_Soper_MS3121_box79e

In this letter from Sobeloff to his old mentor Judge Soper he writes that he is “more bored than worried” by the precedings about his nomination. Morris Soper Papers, MS 3121, Box 79E, Maryland Historical Society

Henry Levy in the Jewish Digest wrote “it is ironic that Judge Sobeloff’s appointment should have stirred so violent a controversy. He is moderate in everything he does, and the very act that aroused the ire of the Southern Senators was an act of moderation..”

In fact, at a speech at Morgan State only a week after Brown vs the Board, Sobeloff had the following quote which sums up his philosophy of moderation and compromise in a democratic society: “In appraising the Court’s decision, we must be careful to avoid the tendency either to minimize or exaggerate its significance. I know that there are many sincere people who would have wished the Court to order a complete abandonment of the existing system forthwith, or at least a more specific time-table had been indicated…..It is well to remind ourselves of the words of Lord Bryce who wrote our Constitution: ‘It was and remains what its authors styled it, eminently an instrument of compromise; it is perhaps the most successful instance in history of what a judicious spirit of compromise may effect’ .”

Sobeloff was eventually confirmed in 1956 by a vote of 64-19. Joining the Southern Democrats, most notably, was a Republican Senator from Wisconsin named Joseph McCarthy, a fact which Simon Sobeloff took great pride throughout the rest of his life. (Eben Dennis)

* When Broening became State’s Attorney in 1911 he hired Sobeloff to be a docket clerk. Later Broening would lend Sobeloff the money he needed for law school.

** Sobeloff had been Chief Judge Morris Soper’s law clerk in 1914. He would later replace his old mentor on the 4th Circuit Court of appeals 42 years later.

A good portion of this research was taken from rather limited sources: Michael S. Mayer’s short biographical pamphlet about Simon E. Sobeloff  and an unpublished manuscript that was originally meant for the Maryland Historical Magazine magazine. As the Morris Soper papers continue to be processed dozens more pages of correspondence between Soper and Sobeloff are sure to emerge. Make an appointment with special collections if you would like to gain more insight on this fascinating judge from Baltimore.

 Sources

Morris Ames Soper Papers,correspondence, MS 3121, Maryland Historical Society

Morris Ames Soper Papers, news clippings, MS 3121, Maryland Historical Society

Mayer, Michael S., Simon E. Sobeloff, Pamphlet 2127, Maryland Historical Society

An Oral History interview with Simon Sobeloff, OH 8025, Maryland Historical Society

Michael Sobeloff Mayer Manuscript Collection, MS 2250, Maryland Historical Society

Levy, Henry. The Jewish Digest, 1956 “The Sobeloff Confirmation- A Triumph of Decency