(dissenting). I must respectfully dissent.
As one who favored the launching of the Integrated Bar, I regret to see it founder on the very shoals which its antagonists predicted.
In Lathrop v. Donohue (1960), 10 Wis. (2d) 230, 102 N. W. (2d) 404, the supreme court of Wisconsin scrutinized the proper sphere of action on the part of the Integrated Bar. The matter of the selection of judges was not discussed. However, the court noted the major activities of thé bar under the following headings (Appendix, p. 246 et seq.) : Postgraduate Education of Lawyers; Public Relations; Discouraging Unauthorized Practice of the Law; Establishment of a Minimum-Fee Schedule; Legal Aid; Investigation and Adjustment of Grievances; and Legislative Activities.
When the Lathrop Case reached the United States supreme court (1961), 367 U. S. 820, 81 Sup. Ct. 1826, 6 L. Ed. (2d) 1191, there was a plurality opinion written by Mr. Justice Brennan, who observed, at page 829, that there is a “judicial selection” committee of the State Bar. However, the court quoted the specific functions of that committee, and it is of interest to note therefrom that the “judicial selection” committee is clearly not designed to play any role whatsoever in the political processes by which judges are chosen:
*670“This committee shall study and collect information pertaining to judicial selection, tenure, and compensation, including retirement pensions, and shall report from time to time to the association with respect thereto.”
In a concurring opinion by Mr. Justice Harlan, in which Mr. Justice Frankfurter joined, there appears the following, at page 853:
“In establishing the Integrated Bar Wisconsin has, I assume all would agree, shown no interest at all in favoring particular candidates for judicial or legal office or particular types of legislation. Even if Wisconsin had such an interest, the Integrated Bar does not provide a fixed, predictable conduit for governmental encouragement of particular views, for the Bar makes its own decisions on legislative recommendations and appears to take no action at all with regard to candidates. By the same token the weight lent to one side of a controversial issue by the prestige of government is wholly lacking here.” ( My emphasis.)
It is my conclusion that it was not contemplated by either the Wisconsin supreme court or the United States supreme court that an integrated bar would utilize its structure for participation in activities designed to influence the success of a specific nominee or candidate. That would be a proper activity of a voluntary bar but not of one which is compulsory.
The court’s opinion stresses that the poll is an expression of the opinions of the individual members and not “a position of the State Bar.” In my view, this is completely unrealistic ; perhaps the best proof of this is the vast number of headlines, news stories, and even cartoons which almost invariably reported the result as the “State Bar’s rejection” of the nominee.
It is not enough to say (as does the instant per curiam decision) that the selection of judges is “a part of the larger area commonly referred to as the administration of justice.” Lawyers are intimately involved in almost all significant *671events relating to the flow of human affairs. In the Lathrop Case, the Wisconsin supreme court observed, at page 238, that the State Bar has a committee on administration of justice, but a reading of the duties of that committee suggests that the qualifications of a particular judicial appointee are not a part of its proper activities:
“‘Section 4. Committee on administration of justice. This committee shall study the organization and operation of the Wisconsin judicial system and shall recommend from time to time appropriate changes in practice and procedure for improving the efficiency thereof; and in that connection shall examine all legislative proposals for changes in the judicial system.’ ”
Of course, the selection of a federal judge is of major importance to the bar and to the community. So too each of the following matters is now or formerly was of great importance :
(1) Whether the United States constitution is to be amended to provide for a so-called “court of the union,” a supercourt of the chief justices of the several states. (Jt. Res. 9A and 1 IS.)
(2) Whether the United States constitution is to be amended to preclude federal courts from entertaining suits regarding the apportionment of state legislatures. (Jt. Res. llAand 12S.)
(3) Whether the United States constitution is to be amended to permit future amendments of such constitution to be initiated by the legislatures of two-thirds of the states. (Jt. Res. 10A and 13S.)
(4) Whether the scope of the treaty-making power contained in the United States constitution shall be narrowed. ( Bricker Amendment.)
(5) Whether the acceptance by the United States of the jurisdiction of the World Court should have re*672served the right to decide if the matter was within the jurisdiction of the World Court. (Connally Amendment.)
(6) Whether the United Nations should seek the release of Cuban political prisoners who were sentenced by Castro-controlled courts. This is the content of a resolution just adopted by the Board of Governors of the American Bar Association. (ABA News, Vol. 8, No. 11, November 15,1963.)
While of vital interest to lawyers, the foregoing are examples of issues which are basically political. They are like a multitude of other political questions which are matters “of more than average public concern.” While they are of significance to lawyers, they nevertheless remain primarily political subjects. They are matters on which lawyers and voluntary bar associations should express themselves, but on which a compulsory or integrated bar by its very nature must scrupulously desist from choosing up sides.
I doubt that I can state my viewpoint with any more clarity than has been expressed by the incumbent president of the Integrated Bar. The able president of the State Bar Association, Francis J. Wilcox, writing in the column, “The President’s Page,” in a recent issue of the 36 Wisconsin Bar Bulletin (August, 1963), p. 5, stated the following:
“Recent events have focused once again the attention of the membership on the responsibilities of the State Bar as a spokesman for the profession. The three constitutional amendments now pending before the legislature are of great importance to the citizens of the state and it is the duty of the individual lawyers to speak out as to their convictions with respect to these amendments and to give to the public the leadership they have a right to expect from the lawyers. However, an integrated State Bar cannot be the conscience of the individual lawyer nor can it discharge his responsibility of leadership in his community on legislative matters. At best, it can merely inform the lawyers and alert them and *673they, in turn, must discharge their traditional function. Elsewhere in this bulletin we have caused to be published a scholarly analysis of the impact of these amendments and we urge you to acquaint yourself with them and, having formed an opinion on a sound basis, to speak out either singly or in voluntary groups having a common view of the matter.”
I fully agree with Mr. Wilcox’s statement and am unable to reconcile it with either the association’s action or the majority opinion.
The highly restricted nature of the activities of an integrated bar were recognized by this court in the Lathrop Case, at page 240, where this court said:
“The plaintiff contends that the State Bar’s legislative activities are the same as those of such voluntary bar associations as the former Wisconsin Bar Association and the American Bar Association. Such argument ignores the obvious and very material distinction that exists between the legislative activities of the State Bar and those of a voluntary association. A voluntary association is free to take a stand on any proposed legislation in any field it deems desirable.”
It is my belief that the decision of the majority heralds the ultimate demise of the Integrated Bar if, under the aegis of this per curiam decision, the State Bar is encouraged to lend its prestige and facilities in connection with political controversies.
I am authorized to state that Mr. Justice Dieterich joins in this dissent.