also dissenting:
As a result of the exhaustive hearings before the Committee, we now have far more information as to the moral quality, the legal capacity and the political views of this applicant than is ordinarily the case.
The report of the Committee makes it clear that apart from the problems that stem from the applicant’s insistence upon what he regards as his constitutional right to refuse to answer questions relating to his political views, there is no basis for denying him admission to the bar. The record suggests nothing derogatory as to his character or his reputation. The affirmative showing of good character and reputation is entirely convincing. So far as the right of revolution and the use of force to overthrow the government are concerned, the applicant was unable to visualize, in the foreseeable future, any circumstances that might call for its exercise in this country. We agree with the Committee that these views, illustrated as they were by the revolt of Hitler’s generals toward the close of World War II and the recent Hungarian revolt, were neither subversive nor foreign to American political philosophy.
But the applicant did refuse to answer questions as to membership in the Communist party or in subversive organizations. Those questions were not predicated upon any information that might have led the Committee to suspect such membership. Despite the fact that the application has been pending for many years, the Committee expressly states that it has “received no information from any outside source which would cast any doubt on applicant’s loyalty or which would tend to connect him in any manner with any subversive group.”
Our prior decision determined that questions concerning the applicant’s membership in the Communist Party or in subversive organizations were relevant, and we must now determine the consequence to be attached to his refusal to answer them. It is possible to say that he has refused to answer relevant questions, that the burden of proof rests on him and that he must therefore be denied admission to the bar.
In our opinion, however, a more penetrating approach to the problem is necessary if we are to discharge our duty with fairness and justice. The applicant has refused to answer these questions because he believes that they violate his rights under the first and fourteenth amendments to the constitution of the United States. He has expressly disclaimed any reliance upon the privilege against self-incrimination. His views as to the constitutional propriety of the questions may be right or they may be wrong, but there seems to be no doubt as to their sincerity. Adherence to them has prevented his admission to the bar for many years. We do not see in this record any basis for a finding that the applicant’s refusal to answer raises a doubt as to the sincerity with which he takes the oath to support the State and Federal constitutions.
We think that it is unnecessary, and inappropriate to decide this matter as though it called for an exercise of the ultimate limits of State, power with respect to admission to the legal profession. What is involved is no more than an appraisal of the applicant’s moral character and his fitness to practice law. His views upon the right of revolution were fully expounded before the Committee. Those views are incompatible with membership in the Communist Party, or with anything resembling subversion. It is hard to understand the logic of a position that permits the applicant to expound at length upon his views as to the right of revolution but prevents him from answering questions as to Communist party membership. But we can not say that what seems to us to be a logical inconsistency is a reflection upon his character.
It is true that the work of the Committee has been greatly increased by the applicant’s refusal to answer directly. But that refusal appears to have been sincerely based upon constitutional grounds that can not be said to be entirely implausible. To refuse admission, therefore, would amount only to an assertion of power beyond that which is required in order to determine the question before the court.
In our opinion the record sufficiently demonstrates that the applicant possesses the requisite qualifications for admission to the bar.