The Senator's Retreat

When Senator McCarthy refused last week to appear in Judge Bailey Aldrich's courtroom for the pending trial of Professor Wendell Furry, the Senator said he wanted to avoid giving Judge Aldrich a chance to repeat the "insult" he delivered to the Senate by refusing to uphold its contempt citation against Leon J. Kamin. The bitterness with which McCarthy accused the Judge of a lack of objectivity in "communist" cases, however, made it seem likely that the Wisconsin Senator was concerned more with his own dignity than that of the Senate, and was anxious to avoid a setback similar to the one he suffered at Kamin's trial.

The caustic treatment received by the Senator at the hands of Kamin's attorneys last fall, and Judge Aldrich's ruling that McCarthy had clearly overstepped the legal authority of the Government Operations Committee he headed in 1953-54, have already been discussed at length in this newspaper. What has not been discussed, since it only appears through re-reading Aldrich's decision, is that the Judge chose to believe McCarthy on small points and completely disagreed with him on large ones.

In order to reach his decision in Kamin's case Aldrich had to examine McCarthy's statement that his committee had been investigating, not private industry, but the operation of government security regulations. After studying the testimony of the other members of McCarthy's investigating group and the content of McCarthy's hearings, the Judge ruled the Senator's contention "entirely insubstantial."

McCarthy also indicated he thought Furry's case a lost cause, at least in Judge Aldrich's "kangaroo court." Furry's case is so similar to Kamin's that the Aldrich opinion acquitting Kamin would probably serve as the basis for a Furry acquittal. McCarthy probably realized this in January, when he made his first attack on Aldrich.

Meanwhile, the Government has been silent for three and a half months, with one puzzling exception. A week ago, several Boston newspapers reported that Furry may not be brought to trial. They did not attribute their prediction to anyone, but merely went on to say that U.S. District Attorney Anthony Julian had gone to Washington for consultation on the case. One interpretation of these stories is that the Justice Department, although legal propriety forbids its lawyers publicly to discuss a pending case, tipped off court reporters on the possible implications of Julian's trip to prepare opinion in Boston--where the Senator's support is strong--for the inevitable.

Government attorneys have until May 14 to decide whether they will bring Furry to trial. Since McCarthy's withdrawal appears final (Judge Aldrich is not likely to respond to the Senator's attack), the government will have to do without his possibly crucial testimony. The prospect that Furry may never be tried is stronger than ever.