CONFIRMATION HEARING ON:

DAVID A. NELSON, JAMES L. RYAN, AND HENRY

T. WINGATE

WEDNESDAY , SEPTEMBER 25, 1985

U.S. SENATE ,
COMMITTEE ON THE JUDICIARY ,
Washington, DC.
The committee met, pursuant to notice, at 2:05 p.m., in room SD
226, Dirksen Senate Office Building, Hon. Strom Thurmond (chair
man of the committee ) presiding.
Also present: Senator Simon .
Staffpresent: Duke Short, chief investigator; Laurie A. Westley,
chief counsel , Senator Simon .
OPENING STATEMENT OF CHAIRMAN STROM THURMOND
The CHAIRMAN. The committee will come to order.
We meet today to have hearings on three Federal judges, two
U.S. circuit judges, David A. Nelson, of Ohio, to be U.S. Circuit
Judge for the Sixth Circuit, and James L. Ryan, of Michigan, to be
U.S. Circuit Judge for the Sixth Circuit; and a district judge, Henry
T. Wingate, of Mississippi, to be U.S. District Judge for the South
ern District of Mississippi.
Senator Cochran, you were here first, but I understand Senator
Glenn has to leave right away ; would you mind letting him go
first ?
Senator COCHRAN. Not at all, Mr. Chairman.
The CHAIRMAN. Senator Glenn, please come around.
STATEMENT OF HON . JOHN GLENN , A U.S. SENATOR FROM THE
STATE OF OHIO
Senator GLENN. Thank you, Mr. Chairman , and Senator Coch
ran . I appreciate that. We all get bogged down with too many meet
ings here, and I appreciate this very, very much.
It is a real pleasure for me, Mr. Chairman, to introduce to you
David Nelson , from Ohio. He has been nominated while being in
the law firm in Cleveland of Squire, Sanders & Dempsey, one of
themost prestigious law firms in Ohio, and one of the largest, also.
His wife, Mary , is here with us today, and his son Fred, back in
the second row. We are glad to have them with us today.
David Nelson went to Hamilton College; he went to Cambridge
University, in England, as a Fulbright Scholar, he went to Harvard
Law School. He served time in the U.S. Air Force here in Washing
ton; was with the U.S. Post Office as general counsel and later as
(281 )
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Senior Assistant Postmaster General. He has worked on energy

matters; has been a trial lawyer, and in corporate law. He has a
broad background and experience, and it is a particular pleasure
for me to introduce you tohim here.
I have a number of friends in that law firm in Cleveland , OH,
and I can say that in David's work there in that law firm , I have
not heard a single bad word about him. All of the people there
have been unanimous in recommending him very strongly and
think he would be an outstanding Federal judge, and I agree with
their assessment of his capabilities .
So, it is a real pleasure, Mr. Chairman, to introduce him, and I
am sure you will be as impressed with his credentials and his views
on things as we have been.
Thank you very much .
The CHAIRMAN . Mr. Nelson, we are very glad to have you with
us. I congratulate you on your appointment by the President; I also
congratulate you on having the high endorsement of Senator
Glenn, who is held in high esteem here in the Senate.
We will take Senator Cochran next.
STATEMENT OF HON. THAD COCHRAN , A U.S. SENATOR FROM
THE STATE OF MISSISSIPPI
Senator COCHRAN. Mr. Chairman, I appreciate very much your
invitation to introduce Henry Wingate toyou and to the members
of the Judiciary Committee.
It is an honor for me to be able to recommend to the committee
that it confirm and ratify the appointment of Henry Wingate as
U.S. District Judge for the Southern District of Mississippi.
I am happy that President Reagan has submitted his name to
the Senate for confirmation, because I am convinced he will be one
of the finest district judges we have ever had in the State of Missis
sippi. He is well-educated. He is bright. He is hard working. He is
well respected by all who have met him and who have had dealings
with him .
He is a graduate of Yale Law School, Mr. Chairman. He also
graduated from Grinnell College, where he received his undergrad
uate education. He graduated from the public schools in Mississippi
before going to college.
He is also an outstanding racquetball champion, Mr. Chairman.
He is our State champion racquetball player. He and his wife both
have won State titles in racquetball championships.
But he is also a person who has given a great deal of himself to
his community; he is looked to for leadership and advice in matters
affecting the community, and he takes time to get involved in com
munity activities
Professionally, Henry Wingate is a well-rounded lawyer. He has
had experience as a special assistant attorney general, a position
he held for 4 years. He also served for 4 years as an assistant dis
trict attorney in Jackson, MS. In both of these positions, he pros
ecuted cases in the courts of general jurisdiction in the State of
Mississippi - and he did so with a great deal of skill, winning the
respect of trial lawyers all over the State.
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For the last 2 years, he has been serving as an assistant U.S. At

torney for the southern district of Mississippi, handling both crimi
nal and civil matters, and again , displaying a great deal of skill
and ability in the handling of the matters assigned to him .
I have known Henry personally, Mr. Chairman, for several years.
I have known his wife ,who is a well-respected teacher in the public
schools of our State. Henry has a strong family background. He is
a person of good moral character.
Senator Stennis has also asked me to convey to the committee
his support for Henry Wingate's confirmation , and he has submit
ted a statement, which he has asked be included in the record of
today's hearing.
The CHAIRMAN . I have it here. Without objection , it will follow
your statement in the record .
[ Statement follows:]
PREPARED STATEMENT OF SENATOR JOHN C. STENNIS
Mr. Chairman, I am pleased to give my full support to the nomination of Henry
T. Wingate to be U.S. district judge for the southern district of Mississippi. He has
compiled an exemplary record of service to the legal profession in my State. A pros
ecutor with a reputation for honesty, integrity, and hard work, he has won the re
spect ofhis fellow lawyers throughout Mississippi.
Mr. Wingate is well prepared for service on the Federal bench . He is particularly
well versed in matters of criminal law, and his extensive background in trial work
in both State and Federal courts will serve him well as a Federal Judge. For the
past year and a half he has served as an assistant U.S. attorney for the southern
district of Mississippi, with his major responsibility being the prosecution of Federal
criminal law violations .
Prior to his experience in the U.S. Attorney's Office, Mr. Wingate was for 4 years
an assistant prosecutor in our State court system . There he again focused primarily
upon criminal law matters, specializing in the prosecution of violent crimes.
Mr. Wingate also is familiar with the legal problems that confront State govern
ment. His 3 years as special assistant attorney general for the State of Mississippi
exposed him to a variety of cases in which the State or one of its agencies was a
party .
Mr. Chairman, Mr. Wingate's contribution to the legal system is not limited to
this outstanding record of trial experience. He has devoted substantial time to
teaching courses on criminal law and procedure. For the past 7 years he has been
an adjunct professor at the Mississippi College School of Law. Since last November
he has been a lecturer for the National College of District Attorneys at the Univer
sity of Houston Law Center.
Mr. Wingate's concern for the proper functioning of our State's legal system can
be seen in the time he has given in educating our State's local judges on criminal
law and procedure as a lecturer with the Mississippi Judicial College, a part of the
Mississippi Court Education Program . He has participated in numerous workshops
on criminal law for members of the Mississippi highway patrol and other local law
enforcement officials.
As you can see, Mr. Chairman, Mr. Wingate has a commanding combination of
extensive trial experience and detailed substantive knowledge of criminal law. I
think that it is a very important combination . Because of his commitment to a well
functioning criminal justice system in Mississippi , he has given untold hours in
sharing his knowledge and experience with others. Mr. Wingate's record suggests an
underlying personalcommitment of dedication, fairness, and public service.
I have had an opportunity to talk with Mr. Wingate, and I am fully persuaded
that he understands the important responsibility that goes with being a Federal
trial judge. I am confident that he has the dedication to hard work and the temper
ment forfairness and evenhandedness that this job requires.
Because of his background of Federal trial experience, his knowledge of Federal
criminal law , and his commitment to the proper functioning of the legal system , I
believe Mr. Wingate is fully qualified to serve in the positionfor whichhe hasbeen
nominated . He is the sort of person we need on the Federal bench . I feel confident
that he will live up to the high standards we set for our Federal judges and will
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bring honor to the judicial system and the legal profession. I commend him to the
committee highly.
Senator COCHRAN . Thank you, Mr. Chairman .
Mr. Chairman , without any reservation whatsoever, I recom
mend Henry Wingate to the committee. I am confident that his
service will reflect a great deal of credit on the Federal bench.
The CHAIRMAN . Thank you very much.
Mr. Wingate, I want to congratulate you on your appointment by
President Reagan , and also congratulate you for the strong en
dorsement you have received here from both Senators from Missis
sippi. And I want to congratulate you on the fact that Senator
Cochran has come here in person, and he has taken the time out
from other work to come and endorse you. He is held in very high
esteem here, and that means a lot.
Mr. WINGATE. Thank you , Mr Chairman .
Senator COCHRAN . Mr. Chairman, I wonder if I could introduce
other members of Mr. Wingate's family who have come up from
Mississippi for the hearing ?
The CHAIRMAN . Go ahead .
Senator COCHRAN . His wife, Mrs. Arnita Wingate; his mother,
Mrs. Eloise Wingate; his sister, Mrs. Ruby Wingate -Rhodes; and his
mother - in -law , Mrs. Ella Ward - all of whom are here.
The CHAIRMAN . Well, I believe he's got some supporters, anyway.
[Laughter .]
Senator COCHRAN . Thank you very much, Mr. Chairman .
The CHAIRMAN. Thank you very much, Senator. Stay, if you
want, or feel free to leave if you wish .
Now , Congressman Broomfield, will you come around and bring
your candidate, Judge Ryan , of Michigan.
You may proceed.
STATEMENT OF HON. WILLIAM S. BROOMFIELD, A REPRESENTA
TIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. BROOMFIELD. Thank you, Mr. Chairman .
I appreciate the opportunity today to appear to introduce my
constituent, Michigan's Supreme Court Justice Jim Ryan , who has
been nominated by the President for a seat on the Sixth Circuit
Court of Appeals .
As the dean of the Michigan Republican congressional delega
tion , I have been involved in the selection of a number of candi
dates for Federal judicial posts for several years. I am extremely
proud of the generally high caliber of candidates we have recom
mended . Jim Ryan is clearly at the top of the list.
Although he is just 52 years of age, he has already built an ac
complished career in a number of areas of the legal profession. He
has served as a teacher and a distinguished lecturer at the Univer
sity of Detroit Law School, his alma mater, and at the Thomas
Cooley Law School, in Lansing, MI. He has served as a military
judge -advocate and a military trial judge, and continues as an offi
cer of the U.S. Naval Reserve. Jim has been a private practitioner
and served nearly 20 years on the bench, the last 10, as the justice
of the Michigan Supreme Court, where he compiled a record of out
 285

standing legal scholarship and reputation for fairness and hard

work .
Among his peers, Mr. Chairman, there is no question of Jim
Ryan's credentials. What is most impressive to me is his lifelong
dedication to public service . Far less qualified men and women are
leaving government service for greener pastures at a time when
Jim is seeking theopportunity forgreater public service.
Our country is fortunate, Mr. Chairman , that there are still tal
ented and patriotic Americans like Jim Ryan, who are willing to
step forward and volunteer to serve .
Mr. Chairman , it is a great honor for me to recommend Justice
Jim Ryan for the Sixth Circuit Court of Appeals.
The CHAIRMAN . Thank you very much , Congressman Broomfield .
We are very glad to have you come here in person and take your
time to recommend the candidate here today, the nominee, Judge
Ryan .
I want to congratulate him upon his appointment by President
Reagan, and alsoupon the greatinterest that Congressman Broom
field has shown. Congressman Broomfield is held in high esteem in
the Congress, and his endorsement carries great weight.
Mr. BROOMFIELD. Mr. Chairman , I wonder if I could just intro
duce his wife ? He has a number of family here, as well.
The CHAIRMAN. We would be glad for you to introduce them, if
you would like to, Mr. Broomfield.
Mr. BROOMFIELD. Thank you very, very much.
The CHAIRMAN. Mr. Ryan, do you have any friends you would
like to introduce now?
Mr. Ryan . Yes, Mr. Chairman. IfI may introduce my sister,Mrs.
Joan Fitzgerald; and my nephew, Tim Fitzgerald, and niece, Kerry
Fitzgerald. I would like to introduce, Mr. Chairman, a former chief
justice of the Michigan Supreme Court, Justice Thomas Brennan
and Mrs. Brennan; and behind them, a lifelong friend, Mr. James
Raftery, of the Michigan Bar, and Mrs. Raftery; Prof. Grover Rees,
from the Department of Justice; and in the fourth row is a dear
friend, late of Notre Dame andnow of Washington, Andy Dillon.
The CHAIRMAN. We are very glad to have all of you here.
Thank you .
Mr. Ryan. Thank you , Senator.
The CHAIRMAN. Now, we will take you in the order listed on the
agenda. First is Mr. Nelson .
If all of you would stand, I will give the oath to all of you at one
time.
Mr. BARRETT. Excuse me , Mr. Chairman . Will the witnesses be
heard now, or after
The CHAIRMAN . We are not swearing the witnesses; we are just
swearing the appointees.
Mr. BARRETT . Mr. Chairman, I have come from Mississippi to
oppose the nomination . Could I be heard ?
The CHAIRMAN. Oh, you will have a chance to be heard, yes.
Now , will you three gentlemen hold up your hands.
Will thetestimony you will give in this hearing be the truth, the
whole truth, and nothing but the truth, so help you, God ?
Mr. NELSON . Yes.
Mr. RYAN . Yes.
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Mr. WINGATE. Yes.

The CHAIRMAN . Thank you.
Gentlemen , please sit down, and we will begin with Mr. Nelson .
TESTIMONY OF DAVID A. NELSON, OF OHIO, NOMINATED TO BE
U.S. CIRCUIT JUDGE FOR THE SIXTH CIRCUIT
The CHAIRMAN. Mr. Nelson, do you want to introduce your
family, or any friends that you have here today ?
Mr. NELSON . Thank you, Mr. Chairman.
I am accompanied by my wife of some 29 summers, Mary Ne n,
and one of my three children, Fred Nelson, who found it not incon
venient to be present; the other two are in graduate school and col
lege, respectively.
Jack T. DiLorenzo is an old friend of mine from the Post Office
Department, and he dropped in. I think that completes the roster.
The CHAIRMAN. Thank you.
Mr. Nelson , I believe you have been a practicing attorney for
over 25 years.
Mr. NELSON. That is correct, Mr. Chairman .
The CHAIRMAN . Now you have been nominated to be a Federal
Circuit Judge for the Sixth Circuit.
Have you everheld any judgeship position of any kind?
Mr. NELSON . I have not, sir.
The CHAIRMAN. I wonder if you foresee any difficulty in the tran
sition from private practice to that of a Federal judge at the Feder
al circuit level ?
Mr. NELSON . I think it is going to take a tremendous amount of
work. It is going tobe a real challenge, and I am looking forward
to seizing that challenge. It is not going to be easy , but it can be
done. Others have done it. And I think the background that I have
had in the practice of law is such that I can expect to do what
others have done .
The CHAIRMAN . Mr. Nelson , I consider judicial temperament to
be a prerequisite for a good Federal judge. Would you give me your
thoughts on that? The reason I ask you that is that I have seen
some Federal judges embarrass jurors and witnesses and attorneys
and act almost like tyrants, and there is no excuse for that. I think
the higher in life a man gets, the more humble he ought to be.
Mr. NELSON. Mr. Chairman, having been on the receiving end of
the phenomenon to which you refer on occasion, I could not agree
with you more. I think it is terribly important, not only to the indi
viduals involved, but to the public, that judges be seen as fair and
impartial and concerned. I think a judge should view each case
that comes before him as a case of great importance, as it always is
to the litigants, and should I be confirmed by the Senate and take
office, all I can say is that I will do the best I can to reflect the
kind of judicial temperament that you and I agree that people
holding those offices should have .
The CHAIRMAN .Mr. Nelson , would you tell the committee what
procedures you will follow in determining any potential conflicts of
interest and how you intend to resolve them ?
Mr. NELSON . I will, of course, Mr. Chairman, resign from the law
firm of which I am a member and resign from the various director
 287

ships that I hold. I shall not sit in any case in which lawyers from
my law firm appear as counsel for the litigants, and I shall, of
course, recuse myself from any matter which involves a company
in which I might have a financial interest .
The CHAIRMAN. Mr. Nelson, in response to a portion of the com
mittee questionnaire concerning judicial activism , I believe you
stated that,
The judicial power vested in the Federal courts under Article 3 of the Constitu
tion extends to designated categories of cases and to controversies between designat
ed categories of litigants. The records of the Constitutional Convention said that it
would generally suppose that the jurisdiction given to the Federal courts was con
structively limited to cases of a judicial nature.
I believe you were referring to section 2 of article 3. Section 1 of
article 3 invests in the Congress the plenary power to ordain and
establish such inferior Federal courts as sees fit.
To what extent, as a direct function of that power, is Congress
equally empowered to limit the jurisdiction of lower Federal courts
or various classifications in controversies?
Mr. NELSON . Mr Chairman, I think at the outset, I should say
that it helps one's sense of perspective considerably to know that
the Framers of the Constitution referred to the court to which one
aspires as an “ inferior” court. The inferior courts exist by suffer
ance of Congress. Congress was not required to establish the
United States Court of Appeals for the Sixth Circuit . Given the dis
cretion that Congress has under article 3 , section 1 , and given the
historical compromise that was reached at the Constitutional Con
vention, when it was decided that the establishment of inferior
courts would not be mandated and that it would be left to the de
termination of Congress whether State Supreme Courts or lower
Federal courts should decide matters to which the Federal judicial
power extends, I would think, sir, that Congress has broad power to
determine what the jurisdiction of those inferior courts should be.
The CHAIRMAN. The distinguished Senator from Illinois.
Senator SIMON . Thank you, Mr. Chairman .
Mr. Nelson, your background looks like an excellent one. I have
just a couple of questions, however. One is your trial experience. As
gather from glancing through the record, you have tried approxi
mately seven jury cases; is that correct?
Mr. NELSON. I would have thought it might be a little higher
than that, but it is in that ballpark, Senator.
Senator SIMON . And your background has been entirely in civil
litgation?
Mr. NELSON . That is correct .
Senator Simon . Your background is excellent in many ways, but
this area frankly, is not strong-are you preparing yourself in any
special ways?
Mr. NELSON. I am doing some reading in the area of criminal
law, Senator. I have got a lot to learn, there is no question about
that, and it is going to take time. But the area of criminal law is
one on which I expect to spend a significant amount of time, as I
get acclimated and begin to wrestle with the matters that come
before the court.
Senator SIMON . The American Bar Association says in its Code of
Judicial Conduct that it is inappropriate for a judge to hold a mem
 288

bership in any organization that discriminates on the basis of race ,

sex, or religion . A question has been raised about an organization
called the Court of Nisi Prius. Am I pronouncing that correctly ?
Mr. NELSON . You are pronouncing it correctly. The members of
that organizationfollow the Englishpractice and mispronounce it.
They call it “ the Court of Nisi Prius.
Senator SIMON. Does this organization in fact discriminate, and if
it does, do you intend to continue membership in it?
Mr. NELSON. If it does, I intend to withdraw from the organiza
tion. I need to have a heart -to -heart talk with the people who are
now in charge of running it about the question whether, as a
matter of policy, the organization excludes women . There are
people of diverse religious backgrounds, racial backgrounds. The
court has black members, Jewish members. It has no women mem
bers. I think in large part, that is a matter of history, because the
middle -aged practitioners who historically have been members of
the court come from an area of practice where, until recently,
there simply haven't been women. My belief is that women are not
automatically excluded from membership in the court, but I need
to come to an understanding with them on that subiect. I am con
scious of the rule in the Code of Judicial conduct, and if I deter
mine that the organization discriminates against women as a
matter of policy , I will withdraw .
Senator SIMON . Thank you
As you have proceeded through this process, meeting with people
in the Justice Department and elsewhere, have people asked ques
tions that you felt were improper ? For instance, has anyone asked
you how you would rule on certain cases ?
Mr. NELSON. No one, sir, has asked me a question that I thought
improper. There have been rather free-wheeling discussions about
judicial philosophy, judicial activism. Lawyers sometimes talk more
than they should , and I have volunteered some views on various
subjects. But it was my choice to do so. I do not feel that I was
asked any improper questions.
. Senator SIMON . You do not feel under any obligation then to do
anything other than rule as the law is, if you become a judge ?
Mr. NELSON . As I am given the light to determine what the law
is, I shall try to apply it fairly and impartially to the best of my
ability; I really will.
Senator Simon . Thank you, Mr. Nelson .
Thank you, Mr. Chairman.
The CHAIRMAN. Mr. Nelson, I hope you enjoy your service on the
Bench . We hope to get you on the agenda tomorrow , if possible
and with the aid of my good friend here, Senator Simon, maybe we
can get you on the agenda tomorrow.
Mr. NELSON . Thank you. I appreciate your courtesy.
The CHAIRMAN. Thank you very much.
Senator Simon. Mr. Nelson, if you could place a phone call to the
organization in question, and let me know or let my staff know the
status of your membership, I think I would certainly have no objec
tion to moving ahead with your nomination.
Mr. NELSON . I will do it.
 289

The CHAIRMAN. If you would get in touch with Mr. Short, too,
and give him the answer. You can also give it to his people, or Mr.
Short can give it to them, either one .
Thank you.
[Information follows :]
September 25 , 1985

The Honorable Strom Thurmond , Chairman

Committee on the Judiciary
United States Senate

Dear Mr. Chairman :

With regard to the question Senator Simon raised at my confirmation

hearing this afternoon about my membership in the Court of Nisi Prius ,
I do not believe that the membership policies of the organization are
such as to require that I withdraw if my nomination to judicial office
is confirmed .

In order to avoid any possible question on this score , however , I have

decided to resign from the group and have so advised its head .

Very truly yours ,

di dan
David A. Nelson

cc : Senator Simon

The CHAIRMAN. Next is Judge Ryan, if you will come around .

TESTIMONY OF JAMES L. RYAN , OF MICHIGAN, NOMINATED TO
BE U.S. CIRCUIT JUDGE FOR THE SIXTH CIRCUIT
The CHAIRMAN. Judge Ryan , we are glad to see you here.
Mr. Ryan. Thank you, Mr. Chairman.
The CHAIRMAN. I feel very kindly toward you, even though your
university beat the University of South Carolina last Saturday in
football.
Mr. Ryan. That is very kind of you, Senator. [Laughter.]
The CHAIRMAN. I believe you served 3 years in the Navy, didn't
you?
Mr. RYAN . Yes, sir.
The CHAIRMAN . And you are still in the Naval Reserve?
Mr. RYAN . Yes, I am, Mr. Chairman .
The CHAIRMAN. Well, that is commendable. I like to see a man
serve in uniform for his country.
Now, you were a Circuit Court Judge in the Third Judicial Cir
cuit in Michigan , Wayne County, I believe?
Mr. Ryan. Yes, sir.
The CHAIRMAN. Is that a court of limited jurisdiction or unlimit
ed? Do you have the power of death in criminal cases, unlimited in
civil?
 290
Mr. Ryan . It is a court of unlimited general trial jurisdiction , but
there is no capital punishment penalty in Michigan, Mr. Chairman.
The CHAIRMAN. There is no capital punishment in the State of
Michigan ?
Mr. Ryan . No, sir.
The CHAIRMAN . You all have not corrected that decision-I
mean, you have not realigned your State yet.
Mr. Ryan. There is a sympathy in the State for bringingcapital
punishment to Michigan, but it was abolished about 1850, Mr.
Chairman .
The CHAIRMAN. Yes . We have not corrected it at the Federal
level yet, either. We have been trying to do it, and we are still
trying to do it. It passed through the Senate twice, and the House
got alittle soft-hearted and did not pass it. So we hope to get an
other bill through - except for plane hijacking. We do have capital
punishment for plane hijacking at the Federal level.
Now, Judge Ryan, you haveserved, I believe as a Justice of the
Supreme Court of Michigan since 1975?
Mr. RYAN. Yes, sir.
The CHAIRMAN. From 1966 to 1975, you were Circuit Judge for
the Third Circuit, Wayne County.
Mr. RYAN . Yes, sir.
The CHAIRMAN. With this extensive judicial background, would
you please tell the committee what you consider to be the prerequi
sites for a just and fair judge ?
Mr. RYAN. Mr. Chairman , I would think they are certainly
many, but premiere among them, I think, would be personal integ
rity. If that is combined with scholarship in the law and a cultivat
edsense of intellectual self-discipline, and, certainly, allegiance to
the letter and the spirit of the Constitution, a judge willhave no
trouble at all in discharging his duties with the fairness that the
law requires.
The CHAIRMAN. Judge Ryan, how would you resolve a conflict be
tween your own conscience, or on your own sense of justice, and
the clear meaning of a statutory or Constitutional provision ?
Mr. RYAN. Mr. Chairman , with respect to the Constitution, it is
inconceivable to me that my conscience would be at-odds with any
provision of the U.S. Constitution. However, if a statutory enact
ment were part of the law of the land which conflicted with my
conscience, it would be resolved by my remembering that I was not
nominated to decide cases according to my conscience, but to decide
them according to the Constitution and the statutes as enacted by
the Congress and the States of the Circuit.
The CHAIRMAN. In other words, even though you had a different
personal view, you would stand by the law of the land , the statute
of the Constitution?
Mr. RYAN . Exactly, yes, sir
The CHAIRMAN. Judge Ryan , what are the standards that you
will use in deciding that your court has a continuing administra
tive responsibility to oversee the implementation of one of its
orders?
Mr. Ryan. Mr. Chairman, I think that the jumping off place for
establishing standards ought to be that the judiciary ordinarily
should not have any continuing supervision or continuing oversight
 291

of the administration of its judgments and orders. It seems to me

that the cases and controversy provision of article III of the Consti
tution suggests pretty directly that the courts are designed to
decide specific justiciable issues and conflicts, and oversight should
ordinarily be the business of the executive and the legislative
branches of Government.
The CHAIRMAN. Judge Ryan, in its famous dissent in Plessey v.
Ferguson in 1893, Justice John Harlan referred to our Constitution
as a “ colorblind” Constitution. Would you agree with this charac
terization .
Mr Ryan . Mr. Chairman , the only answer to that is absolutely.
Mr. Justice Harlan's statement is as sound and valid now as it was
when he wrote it in that case , in my opinion .
The CHAIRMAN. In other words, you will decide your cases re
gardless of race , color, creed, religion, sex, purely on the merits of
the case?
Mr Ryan. Absolutely , Mr. Chairman.
The CHAIRMAN. The distinguished Senator from Illinois.
Senator SIMON. Thank you, Mr. Chairman.
Mr. Ryan, I am pleased to have you here. You have come with
strong recommendations, and you have even overcome in your
background, I notice, being a justice of the peace.
Mr. Ryan . Thank you, Senator. Some think that is one of the
richest parts of it.
Senator Simon. Well, I can believe that. It is very different from
the kind of activity you will be involved in in the near future.
Mr. Ryan . Yes, sir.
Senator SIMON . Could you describe for me briefly, during your
meeting with the Justice Department, what kinds of questions are
asked of a nominee?
Mr. Ryan. I was asked to come to Washington for a half-day of
interviews shortly after that announcement, and I was interviewed
by four or five lawyers in the Justice Department - I do not re
member precisely the number. By some, I was asked little or noth
ing; by one or two lawyers in the Justice Department, I was given
the benefit of their judgment and their views about matters philo
sophical. With respect to others, I was asked - Mr. Trott, for exam
ple, of the Criminal Division, was only interested in knowing more
about how , in Michigan, we handle the voir dire of jurors. He
wanted to know whether our experience in the Michigan Supreme
Court was that decisions of our court were being overturned by
Federal District Judges pursuant to the issuance of writs of habeas
corpus. In another case or two, I was asked questions of the most
general sort, about my philosophy, about what is the sweep of judi
cial decisionmaking. There was a discussion about general areas of
judicial self-restraint, some of which were touched in the question
naire which the Senate submitted .
Senator Simon. Did anyone ask you how would you rule on any
given case ?
Mr. RYAN . Absolutely not, Senator. And I must say, I remember
that so clearly because I was prepared, I hope, to face that question
as a possibility, and I was delighted to see that the question was
not put.
Senator SIMON . Good .
 292

One final question . The Canon to the American Bar Association's

Code of Professional Responsibility says-and I am quoting
“Every lawyer, regardless of professional prominence or profession
al workload, should find time to participate in serving the disad
vantaged .”
Can you tell me what you have done to live up to this particular
canon?
Mr. Ryan. My primary responsibilities for 20 years have been 10
as a trial judge and 10 as a Supreme Court Justice. As a trial
judge, I made a special effort to utilize the authority given to trial
judges in Michigan to see to it, for example, that minority lawyers
were given the opportunity to receive assignments to represent in
digent defendants and participate in the growth of the criminal de
fense bar that way .
Since I have been on the Supreme Court, I have been involved in
the authorship of the Rules of Evidence, the rules of practice for
the juvenile courts, the probate courts, the circuit courts, and the
Supreme Court of Michigan, and in shaping those rules, I have at
tempted at every turn to be sensitive to their application to the
most disadvantaged in our society in Michigan.
Aside from those duties, I have been an adjunct professor of law
for 10 years at two Michigan law schools. During those times, I
spent extra time with students, not always members of minorities,
but students who had special disadvantages in their preparation
for law school, in order to help them succeed. And finally, I have
done what I think I can do within the ambit of the canons, in the
practice of my faith, in my parish, and in my parish community, to
share with the disadvantaged the material benefits which have
come to Mary and me.
Senator SIMON. I thank you.
Thank you, Mr. Chairman .
The CHAIRMAN . Thank you, judge. I hope you will enjoy your
service on the Bench, and wish you well.
Mr. Ryan . Thank you, Mr. Chairman.
Thank you, Senator.
The CHAIRMAN. We will try to get you on the agenda tomorrow ,
with the help of my distinguished friend here fromIllinois.
Senator SIMON . No problem.
Mr. Ryan . Thank you, Senator.
[Letter to the chairman follows:]
 293

United States Senate

WASHINGTON , D.C. 20510

September 23 , 1985

The Honorable Strom Thurmond

Chairman
Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington , D.C. 20510
Dear Chairman Thurmond :
I regret that I will not be able to introduce Judge James L. Ryan to
the Committee and appear personally on his behalf because the hearing on his
nomination to the 6th Circuit Court of Appeals is scheduled on Yom Kippur .
I have had the pleasure of knowing Judge Ryan for a number of decades .
His unblemished legal career has been marked by integrity , commitment
and judicial temperment . Ile has my full support .
Best regards.

Sincerely ,

Coul fin
Carl Levin

cc : The Honorable Donald W. Riegle, Jr.

CL / jpj

The CHAIRMAN. Mr. Wingate, if you will come around, I have al

ready sworn you.
TESTIMONY OF HENRY T. WINGATE, OF MISSISSIPPI , NOMINAT
ED TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT
OF MISSISSIPPI

The CHAIRMAN. I believe you graduated from Grinnell College

and recieved a J.D. degree from Yale Law School, correct ?
Mr. WINGATE. That is correct, sir.
The CHAIRMAN. And you finished in 1972 at Yale?
Mr. WINGATE. Yes, sir, I did.
The CHAIRMAN. You served in the Navy, in the Judge Advocate
General's Corps, 3 years?
Mr. WINGATE. Yes, sir, I did.
The CHAIRMAN. What rank did you attain ?
Mr. WINGATE. When I was discharged from the U.S. Navy, I was
a lieutenant. I am still in the Navy Reserve, and I am currently a
lieutenant commander
The CHAIRMAN. A lieutenant is equivalent to a captain in the
Army; a lieutenant commander is equivalent to a major, isn't it?
Mr. WINGATE . That is correct, sir.
 294

The CHAIRMAN. You served with Community Legal Aide, law

clerk for a year; private practice from 1973 to 1976–3years?
Mr. WINGATE. No, sir; it was 1 year, while I was waiting to go
into the service .
The CHAIRMAN. You were special assistant attorney general, Jus
tice Department, State of Mississippi, 4 years , is that correct?
Mr. WINGATE. Yes, sir, with the Attorney General's Office in the
State of Mississippi.
The CHAIRMAN . I believe you were the first black to occupy that
position ?
Mr. WINGATE. Yes, sir, I was.
The CHAIRMAN. Who was your Attorney General there?
Mr. WINGATE. Mr. A.F. Summer.
The CHAIRMAN. Then , you served 4 years as assistant district at
torney, seventh circuit court district, State of Mississippi; is that
right?
Mr. WINGATE. Yes, sir. I tried felony cases.
The CHAIRMAN. And you were the first full-time black in that po
sition?
Mr. WINGATE Yes, sir, I was.
The CHAIRMAN. And youserved as assistant U.S. attorney, south
ern district of Mississippi, Department of Justice, from 1984 to the
present?
Mr. WINGATE. Yes, sir. I am in that position.
The CHAIRMAN. And you are the first black to occupy that posi
tion; is that right?
Mr. WINGATE. Yes, sir, I am.
The CHAIRMAN . OK; now , I have a few questions here.
Mr. Wingate , at present,you serve as assistant U.S. Attorney for
the southern district of Mississippi. Prior to that, you were an as
sistant district attorney for the seventh circuit court district, State
of Mississippi. Do you believe these jobs have prepared you for the
challenging task that lies ahead as a U.S. district court judge, and
if so, how ?
Mr. WINGATE . Yes, sir. I think those jobs will be a tremendous
asset in those duties. As assistant district attorney for the seventh
court district in Mississippi, I was tasked with trying felony cases,
so I tried everything from capital murder to burglary to arson to
rape, and I was in court constantly. So I have first-hand experience
with courtroom procedures. I have first-hand experience with the
application of the Federal Rules of Evidence, and also with the
State rules of evidence, and also with courtroom procedure in gen
eral.
As Assistant United States Attorney, I have again tried a
number of cases, and again , I have gained experiencein the court
room, application of Federal Rules of Evidence, application of Fed
eral criminal statutes. I think both of those jobs have caused me to
learn a great deal about litigation, about courtroom procedures,
and I think they will be invaluable as service on the Bench.
The CHAIRMAN . So you are familiar with the rules of the State of
Mississippi, Justice Department, and the rules of the Federal Gov
ernment, Department of Justice rules?
Mr. WINGATE. Yes, sir; I have lectured on both to other attor
neys.
 295

The CHAIRMAN. Mr. Wingate, would you tell the committee how
you would handle an instance in which counsel for one of the par
ties in your court was obviously not a skilled litigator and was not
prepared to adequately represent the interests of his or her client?
Mr. WINGATE . I believe that every client who comes before the
court is entitled to a fair trial, to due process of law, and that in
cludes competent representation . If counsel comes before the court
not equipped to provide competent representation , then that coun
sel is then denying that client due process of law. As judge, in
making the determination that that counsel is inept and unquali
fied , then it would be my duty to relieve that counsel of his duties,
to declare a mistrial, to see to it that competent counsel is appoint
ed, andthen to admonish that particular counsel.
The CHAIRMAN. Mr. Wingate, what kind of guidelines should a
judge followin determining the propriety of Federal intervention
into State affairs ?
Mr. WINGATE. With caution, sir. The Federal courts possess nei
ther the resources nor the expertise to make day-to -day decisions
for State- run activities. The Federal courts should not intrude into
the affairs of the State government unless there is a clear constitu
tional violation that the State does not address.
The CHAIRMAN. Mr. Wingate, one of the criticisms of judicial ac
tivism is a tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far -reaching orders ex
tending to broad classes of individuals. Do you feel that this criti
cism is valid, and would you please explain your answer?
Mr. WINGATE. I have heard the criticism before, and I would
hope that this procedure is not employed by most Federal judges.
For my part, I think that judicial restraint would be the watch
word, that a Federal judge should not necessarily decide issues that
are not before the court, and should not involve itself in making
policy decisions which are constitutionally assigned to the other
branches of Government.
The CHAIRMAN. Do you believe in our system of three branches
of Government, each having its own responsibilities, check and bal
ance on each other, with each staying within their own spheres,
provided in the Constitution ?
Mr. WINGATE. Yes, sir; I do.
The CHAIRMAN. The distinguished Senator from Illinois.
Senator SIMON . Yes; first of all, you come with strong recommen
dation from our colleague, Senator Cochran, and that is a great
credit to you .
Mr. WINGATE . Thank you , Senator.
Senator SIMON. I notice he mentioned you are a racquetball
champion, but he did not mention you are a table tennis champion,
to . I notice that in the record .
As you went through the process of being interviewed, do you
feel as a result of any questions you answered that you are under
any kind of compulsion to represent a particular political philoso
phy or ideology or will you be free to be an unbiased judge simply
and uphold the law ?
Mr. WINGATE. I feel absolutely no compulsion to follow any par
ticular philosophy, and I will certainly try to uphold the law.
 296

Senator Simon. Did anyone ask questions of you that you felt
were improper during the interviewing in the process ?
Mr. WINGATE. No, sir; there were just broad -range discussions,
but no one asked me specifically how I would rule in any specific
matter.
Senator SIMON . All right. I think my other questions have been
answered by examining your record, and I have no further ques
tions, Mr Chairman .
Mr. WINGATE. Thank you, Senator.
The CHAIRMAN . Thank you very much .
Mr. Wingate, have you introduced all of your family or friends?
Mr. WINGATE. Yes, sir; I have.
The CHAIRMAN. Thank you. You may retire.
Now , I understand we haveone witness here in opposition , Mr.
Richard Barrett, of Learned, MS.
Mr. Barrett, come around, and if you would hold up your hand
and be sworn, that the testimony you will give in this hearing will
be the truth, the whole truth, and nothing but the truth , so help
you God ?
Mr. BARRETT. Yes, Senator
The CHAIRMAN . Have a seat.
Mr. BARRETT. Thank you, Senator.
TESTIMONY OF RICHARD BARRETT, LEARNED , MS
The CHAIRMAN. Mr. Barrett, we generally allow 5 minutes for
witnesses and put their entire statement in the record, but I will
give you 10 minutes, if you would like to have that.
Mr. BARRETT. Thank you, Mr. Chairman.
The CHAIRMAN . You may proceed .
Mr. BARRETT. Mr. Chairman, I bid rejection of the nomination of
minority activist Henry Wingate, and beg the committee not to
turn the clock back 100 years in Mississippi , to the dismal days of
Reconstruction, when there was no progress for any of our people,
when we had black power tyranny, and when we had no democracy
and no majority rule.
Some may think that white Southerners interpose this objection
simply to dismember the Nation or, perhaps, to cripple the Federal
courts. That is not my purpose in being here today.
I am here in behalf of the mechanic at his wheel, the farmer at
his plough , with just a simple plea, and that is, Mr. Chairman ,
guarantee the freedom and the democracy of the people of Missis
sippi, and you will guarantee freedom and democracy to all the
American people throughout the land.
When I was wounded in Vietnam, the injury may have been to
my limb, but actually, my body as a whole was pierced. If a tyran
ny is thrust upon Mississippi, the Nation as a whole is pierced.
President Reagan, Republicans, Democrats, Americans—there is no
need to punish the people of Mississippi. Mississippi has given her
sons to defend you, her substance to clothe you , her steeples to
adorn you , and her laws to magnify you.
As recompense, she has been straitjacketed and hamstrung by
Civil Rights Acts, Voting Rights Acts, busing, integration, forced
housing, racial quotas, and now , laws to prevent thedilution of mi
 297

nority voting strength. And Boston is no less persecuted than

Biloxi.
Maybe the authors of these oppressive laws meant well, but like
the drafters of Prohibition, they failed. If I speak with the tongue
of malice against any man today, may the blood in my veins run
cold. But, Mr. Chairman, minority rule is unjust, and the American
people cry out for change. It is a silent scream .
In my own district, in the Mississippi Delta, I was a candidate for
Congress last year. A Federal judge took the Constitution that I
would call a Michelangelo, and he twisted it into a Picasso. Previ
ously, the laws assured majority rule; he changed them until the
district was 60 percent colored, and he vowed that they would be
changed until aNegro held that congressional office. Some 92 per
cent of the electorate protested this despotism by shunning the
polls in droves. North and South now experience the same plight,
agonize over the same dilemma but perceive the same solution :
genuine majority rule.
Today, we must increase majority voting strength , white voting
strength, if democracy is to survive. I say this not out of love less
for any group, but out of love more for American democracy.
Mr. Chairman , it is said by some—and I call them hypocrites
that race is not an issue so long as a Negro is appointed to office. If
King George the Third had sent one of his noblemen here today to
be confirmed, who was a racquetball champion, who had no judicial
experience and who was undistinguished , you would object to him,
as I would, for his red coat. You would say that he wore a badge of
privilege. He would be given to side with his lords because of his
membership in the nobility. He would put birth before worth , and
crown over craftsmanship.
The nominee submitted by President Reagan presents himself for
appointment, undistinguished, without judicial experience, a rac
quetball champion. But I object to his black coat, his badge of privi
lege. He will be given to side with his lords because of his member
ship in the NAACP. He will put black before white, and minority
over majority.
I object to the belief that the citizen is helpless before the Gover
nor, or the Governor before the Congress, or the Congress before
the President.
I protest because minority rule will establish a tyranny that can
forbid majority young people today, who are breathlessly looking to
the stars, from sitting in the cockpits of space ships, or from sitting
upon the benches of Federal courts, or from sitting in these very
seats here in Congress.
I know you say, “ Well, he is the first,” or “ He is only one.” Mr.
Chairman, James Meredith was the first to integrate education in
Mississippi, and now, the public school classrooms of the city where
I toiled up from poverty are 90 percent Negro-in a State that is
not 90 percent Negro. Witness darkening Dallas. Witness despair
ing Detroit.
Thomas Paine said , “ It is absurd for an entire continent to be
governed by a small British isle .” Is it not equally absurd for an
entire Nation today to be governed by the whims and wishes of the
NAACP, or Harlem , or Watts ?
 298

You might ask, “ Well, then, how can the majority be prevented
from lording over the minority ?” Working men in Mississippi and
throughout this land, who arise at daybreak, who drive trucks, who
forge steel, and who descend down into mines are not given to be
lords or dandies. If only they could vote here today. I would urge
that someday all citizens indeed could vote for Federal judges, as
we do for our other important officials; and perhaps someday, the
American people could also vote by initiative and referendum on
issues that affect their destiny. If the entire electorate could vote
on the Wingate nomination today, upright and honest men would
not rank a man by the list of his friends, but rather, by the sweat
from his brow ; not by the plaudits of public officials, but by the
hours of his own toil .
Some might say, “Well, then, what if aa white man holds the job?
Will that not mean that we will have segregation ?”
What is segregation ? Is it not simply a natural preference for
one's own race or nationality ? Some call it apartheid , some call it
nationalism , some call it patriotism . But Mr. Chairman, I submit
that segregation is a moral and commonsense way for different
races to touch without colliding. It is South Africa , defending the
Cape against communism. It is the Afgans, standing for their lib
eration behind the Iron Curtain . It is a pizza parlor, serving only
pizza and hiring only Italians. It is a Polish church , singing in the
Polish tongue. It is an Irish neighborhood, where the lilt of “ When
Irish Eyes Are Smiling" brightens the classroom with light and
happiness.
Mr. Chairman, what message shall this committee send to the
majority youth of America, if it confirms the Wingate nomination?
Will it not say, this generation will go out into eternity with these
words on its palid lips: “ Your skin is too light, son . Your record is
too good. Your grades are too high. You cannot be a Federal judge.
You cannot be a foreman . You cannot work here."
Instead, if Wingate is rejected, Mr. Chairman, then you say to
the American Nation, "Study harder, and you will earn more.
Work harder, and you will have more. Do more, and you will be
more-the American way.”
The cry goes out. The fight goes on. Lexington , MA. Lexington ,
MS. We are already united in a common bond. We hate oppression .
We love liberty. Now, we are united in the most righteous cause of
all—to lift our people up, to keep our people free, and to set democ
racy on higher ground .
[Statement follows:)
 299

SENATE JUDICIARY COMMITTEE ADDRESS

RICHARD BARRETT
September 25 , 1985

Mr. Chairman :
From the bust beneath the stately capitol dome to the
pleasant gardens of his home in Carrollton , Mississippi , the
memory and legacy of J. 2. George spans the skies -- as a rainbow
-- rising above the pettiness and confusion of his day and ours .
Senator . General . Statesman . 2. George .
Patriot .
J.
Mississippi's most illustrious native son , revered for leading
people from the foggy frenzy of Black and Carpetbagger rule
to the higher plain of democracy and majority rule .
His only torch , the truth . His only vision , freedom .
Today , before youlife
confirm minority activist , Henry Wingate ,
to preside for over the lives and fortunes of
Mississippians , before you replace the red , white ands blue
aspirations of lovers of democracy with the black and somber
drapes of apostles of despair , I lift again that torch of truth .
I catch a glimpse of that vision of freedom .
And I bid rejection of the Wingate nomination in the name of
democracy and majority rule .
Turn not the clock back to the dismal days of the
Reconstruction , when there was no progress for any of our people .
For should the Wingate nomination be confirmed , a despotism so
hated , a tyranny so oppressive , will affix itself upon our land
that should our children one day regain their freedom , they will
look back to the place where you cast the fatal vote and surely
say , " Up from that grave we arose . "
It was not just the wound in my side alone , but my body that
bled in the Vietnam War . Wound Mississippi and you pierce not a
limb alone , but the body of the nation .
Some have suspected that the white Southerner meant to dis
member the nation , to cripple its courts and to defy its
authority . To them , a liberal federal judge , indeed , a Negro
federal judge , would be just the schoolmarm to crack the knuckles
of so unruly a child . Indeed , until this very day , even this
very moment , although our ancestors signed the Declaration of In
dependence together , Northerners and Southerners view each other
with such misgivings that some might delight more in the company
of Fidel Castro than Lester Maddox , or in Henry Wingate than J.
2. George .
But I say to you , "Guarantee the freedom of the people of
Mississippi , and you assure your own . "
Republicans need not punish Mississippi .
She gave your standard -bearer the nectar of her votes , your
candidate the warmth of her heart and your policies the strength
of her conviction .
Democrats need not punish Mississippi .
She gave this Committee its venerable Chairman for so many
years , this Congress so much of its progressive legislation and
the poor so outstretched a helping hand .
 300

Americans need not punish Mississippi .

She has given up her sons to defend the nation , her sub
stance to clothe the naked , her steeples to adorn the skies and
her laws to magnify our inheritance .

May the blood in my veins turn to dust if I speak out of

malice or meanness toward any man , but , Mr. Chairman , minority
rule is unjust .
Civil Rights ' Acts , Voting Rights ' Acts , busing ,
integration , forced housing, forced hiring , racial quotas and law
to " prevent dilution of minority voting strength " may have
well . But , like Prohibition , they failed . It is not time to
disect the past , but to grasp the future .
And the American people cry for change .
It is a silent scream .
After federal judges beat and hammered election which
guaranteed majority rule in Jackson, Mississippi into a Picasso
of their former symmetry and strength , a mere 20 % of the elec
torate turned out to " ratify the allocation of seats to Negroes
on the City Council . Eighty percent protested by staying away
from the polls .

In my own
race for Congress , a federal judge changed the
district twice to " increase Negro voting strength " upto nearly
60 % . Someof the electorate protested that despotism by
92 %
shunning the polls in droves .
The time has come increase white voting strength ,
majority voting strength , if democracy is to survive at all .
It is said that if Negroes make up a majority of a district ,
they must hold the seat . If Negroes do not make up the majority ,
the district must be redrawn until they hold the seat . If
Negroes do not hold the majority in the redrawn district , the
seat must be given to a Negro regardless if Negroes make up a
percentage of the whole state . Honest men cannot blind their
eyes to the tyranny that results .
Upright men shun public office . Apathy clamps itself upon
the body politic like a lid on a kettle . Or should I say a
cauldron , a boiling cauldron .
Resistance to integration turns into immigration away from
integration .

Small towns are withering . Lights are going out . Atlanta .

Birmingham . New Orleans . Detroit . Property values are wiped
out . Soul cities are replacing Emerald Cities .
If the core of Three Mile Island's nuclear plant were ex
panding at so unstoppable a pace , an immediate alarm would ac
tivate every engine of our resources to shut it down . But with
the nucleus of minority rule burgeoning at its present rate , the
forces of majority rule are no less summoned to defend the
nation's very existence .
Some two hundred twenty thousand Negroes brought here from
Africa have burgeoned into some twenty - two million . No people on
the face of the earth has multiplied and flourished as has the
Negro race in America .
 301

Now , it is said , race is not the issue , so long as a Negro

is appointed to office .
A noble of King George III might present himself for
appointment , undistinguished , without judicial experience ,
would object to his red coat , his badge of privilege .
He would be given to side with his lords , with rank before
work , with birth before brain .
A nominee of President Reagan presents himself . for
appointment, undistinguished , without judicial experience , but I
object to his black coat , his badge of privilege .

He will be given to side with his lords , the NAACP , with

black before white , with minority over majority .
object to the belief that the citizen is ' helpless before
the mayor , or the mayor before the governor , the governor before
the senate or the senate before the President . Men have created
our institutions and if men have acted in error , men can remedy
those errors .
But , you protest , he is only one -- the first federal judge
in Mississippi .

James Meredith was the first to integrate Mississippi

schools , but the classrooms of the Magnolia State's ' capitol city
are some 90% colored as a result . clark Gable uttered the first
four letter word on the silver screen , but profanity in movies
has made common decency " Gone With the Wind" as a result .
Thomas Paine said it is absurd for our vast continent to be
ruled by the tiny British Isle . It is equally absurd for the en
tire American nation to be governed by the whim of Harlem or
Watts .
How then can the majority be prevented from being haughty or
oppressive itself ?

Men who arise at daybreak and drive trucks , pour steel or

descend into mines are not given to be lords or dandies. If they
could vote here today ( and it is my prayer that someday they can
vote directly on federal judges and in national referenda ) , they
would doubtless rank their choice by the sweat from his brow , not
the length of the list of his friends , by the hours he has
toiled , not by the plaudits of special interests he has gained .
But what if a white man is selected instead? Is this not
segregation ?
Segregation ( some call it nationalism ) is a preference for
one's own race or nationality . It bids the Afganistanis to fight
for freedom . It on South Africans to defend the Cape
eggs
against communist takeover . It destined pioneers to tame the
West . It holds out hope to Poles for their liberation .
It is a pizza parlor , serving only pizza and hiring only
Italians .
It is a Polish church , singing in the Polish tongue with
parishioners wearing their native costumes.
 302

It is an Irish neighborhood , with laughter of happy children

playing in the streets and the strains of " When Irish Eyes Are
Smiling" filling the classroom with gladness .
It is a Christian country , with the man the head of the home
and righteousness exalting the nation .
That we are a white , English-speaking democracy , founded on
the work ethic , grounded upon belief in God , is not our shame ,
but our glory . Is it a plague we bring to Africa , or medicine
and food? Is it a scourge we bring to Latin America , or
earthquake relief and a better way of life ?

It is not that we love others less , but that we love America

more .
It is not that any man must be oppressed , but that democracy
must rule .

What signal shall your vote send to majority American youth?

That , by confirming the Wingate nomination , no matter how
hard you study , or work , or prepare , or serve , you can never hold
the office of federal judge in Mississippi ? In Chicago ?
Or, by rejecting the Wingate nomination , that you who work
more shall have more ...
That you who honor the freedom and democracy of your fathers
shall live long on the land the lord has given to you .

The CHAIRMAN. Mr. Barrett, regarding your statement, I would

like to make one thing clear. In allowing you and other witnesses
to testify today, this committee is merely carrying out its long
standing policy of receiving information from all parties interested
in a particular judicial nomination .
However, no one should suggest that because you are allowed to
address this committee that the committee in any way condones or
agrees with what you have said .
Personally, I believe in equal opportunity for everybody, whether
they are white or black or whatever color , or whatever sex, or
whatever race, whatever religion . And sometimes, I feel that those
who come from the minorities, who are deserving, deserve probably
more consideration because they have really had to overcome a lot
of obstacles. I do not think we should deny anyone the right to be a
Federal judge because he is in the majority or the minority, or be
cause ofhiscolor or his race or his sex or religion.
So, speaking for myself, I cannot agree with your statement.
Mr. BARRETT. I hope, Senator, someday the American people
could vote on Federal judges, and then we could all trust the ulti
mate wisdom of the democracy.
The CHAIRMAN. The distinguished Senator from Illinois.
Senator SIMON. Mr. Barrett, were you born in Mississippi?
Mr. BARRETT. No, sir; I was born in the North . I came to Missis
sippi as a young man, after serving in Vietnam.
Senator Simon. I just have a very brief statement, Mr. Chair
man .
 303

I find occasionally, that people who move to Mississippi or Ala

bama or other places want to prove themselves and get themselves
established in such a way that they are accepted by people with
certain political beliefs.
You have a lot of talent, Mr. Barrett. You ought to try to chan
nel it in a constructive direction . I do not mean this disrespectfully
to you, but I have served on this committee, as the chairman can
tell you, and I have been sitting through hearings on a great
number of judges. Mr. Wingate is the second black judge out of all
of these judges we have had here. He is a graduate of Yale Law
School. What you have said does not harm him. I think it may hurt
you. I suggest you take some time and go out in the forest . Think
about what you are doing and where you are going — and see if you
can take that considerable talent you have with words and use it in
a more constructive way to make Mississippi and this nation a
better place.
Thank you, Mr. Chairman.
Mr. BARRETT. Senator, some 95 percent of the white Democratic
electorate in Mississippi voted for me last summer. I am speaking
for my country and for my people, and I will continue to do that
without fear or favor, Senator.
The CHAIRMAN. Thank you very much, Mr. Barrett.
Mr. BARRETT. Thank you, Mr. Chairman.
The CHAIRMAN. Is there any other witness? I do not think so.
Mr. Wingate, I hope you have a successful tenure on the bench .
Wewill try to get you on the list tomorrow for consideration .
The committee is adjourned.
[Whereupon, at 3 o'clock, the committee was adjourned .]
BIOGRAPHIES

DAVID A. NELSON

NOMINEE, U.S. CIRCUIT JUDGE, SIXTH CIRCUIT

Birth : August 14 , 1932, Watertown, NY.
Legal Residence : Ohio.
Marital Status: Married to Mary Ellen Dickson Nelson, 3 children .
Education : 1950–1954 – Hamilton College, A.B. degree. 1954-1955 — Cambridge
University. 1955-1958 – Harvard Law School, LL.B. degress.
Bar: 1958 — Ohio .
Military Service: 1959-1962 – United States Air Force.
Experience: 1958–1959 – Squire, Sanders & Dempsey Associate. 1962-1969 — Squire
Sanders & Dempsey, Associate, 1962–1967; Partner, 1967-1969. 1969-1971 – U.S . Post
Office Department, General Counsel, 1969-1971; Senior Assistant Postmaster Gener
al, 1971. 1972 - present - Squire, Sanders & Dempsey, Partner.

JAMES L. RYAN

NOMINEE, U.S. CIRCUIT JUDGE, SIXTH CIRCUIT

Birth : November 19, 1932, Detroit, MI.
Legal Residence: Michigan .
Marital Status: Married to Mary E. Rogers Ryan, 4 children .
Education: 1950–1954 - University of Detroit. 1954-1956 — University of Detroit,
School of Law , LL.B. degree.
Bar: 1957 – Michigan .
Military Service : 1957-1960—United States Navy. 1960 -present — United States
Naval Reserve.
 304

Experience: 1960-1962 — Waldron, Brennan & Maher, Associate. 1962-1963 – Pri

vate practice. 1963-1966 – Ryan & Burress, Partner. 1963-1966 – Justice of the
Peace, Redford Township. 1966-1975 — Circuit Court Judge, Third Judicial Circuit of
Michigan (Wayne County). 1975 - present - Justice, Supreme Court of Michigan .

HENRY T. WINGATE

NOMINEE, U.S. DISTRICT JUDGE, SOUTHERN DISTRICT OF MISSISSIPPI

Birth: January 6, 1947 , Jackson , MI.
Legal Residence: Mississippi.
Marital Status: Married to Turner Arnita Ward .
Education : 1965–1969 – Grinnell College, B.A. degree. 1969-1972–Yale Law
School, J.D. degree.
Bar: 1973 – Mississippi..
Military Service: 1973-1976 — United States Navy , Judge Advocate General's
Corps.
Experience: 1972-1973 — Community Legal Aid, Law Clerk. 1973 – Private practice,
Jackson , Mississippi. 1976-1980 — Special Asst. Attorney General, Justice Depart
ment, State of Mississippi. 1980-1984 — Asst. District Attorney, Seventh Circuit
Court District, State of Mississippi. 1984 - present - Assistant U.S. Attorney, South
ern District of Mississippi, U.S. Department of Justice.