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Georgia v. Rachel
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NOMINATION OF GEORGE HARROLD CARSWELL
TUESDAY, JANUARY 27, 1970
Washington, D.O. The committee met, pursuant to call, at 10:35 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding
Present: Senators Eastland, McClellan, Ervin, Dodd, Hart, Kennedy, Bayh, Burdick, Tydings, Byrd of West Virginia, Hruska, Fong, Scott, Thurmond, Cook, and Griffin.
Also present: John H. Holloman, chief counsel, Peter M. Stockett, and Francis C. Rosenberger,
The CHAIRMAN. The committee will come to order.
The hearing this morning has been scheduled for the purpose of considering the nomination of George Harrold Carswell to be Associate Justice of the Supreme Court of the United States.
Senator Holland and Senator Gurney of Florida have approved the nomination.
Notice of the hearing was published in the Congressional Record on January 19, 1970.
I shall place in the record a letter from the American Bar Association, dated January 26, 1970, which holds the nominee qualified. (The letter from the American Bar Association follows:)
AMERICAN BAR ASSOCIATION,
New York, N.Y., January 26, 1970.
DEAR SENATOR: Thank you for your telegram of January 21, 1970 inviting the comments of the American Bar Association Standing Committee on the Federal Judiciary with respect to Judge G. Harold Carswell, who has been nominated for the office of Associate Justice of the Supreme Court of the United States. The Committee is unanimously of the opinion that Judge Carswell is qualified for this appointment.
This committee has previously investigated Judge Carswell for appointment to the District Court in 1958 and for appointment to the Court of Appeals for the Fifth Circuit in 1969. On each occasion Judge Carswell was reported favorably for these appointments. The Committee has now supplemented these investigations within the time limits fixed by your telegram.
With respect to nominations for the Supreme Court, the Committee has traditionally limited its investigation to the opinions of a cross-section of the best informed judges and lawyers as to the integrity, judicial temperament and professional competence of the proposed nominee. It has always recognized that the selection of a member of the Supreme Court involves many other factors of a broad political and ideological nature within the discretion of the President and the Senate but beyond the special competence of this Committee. Accordingly, the opinion of this Committee is limited to the areas of its investigation.
In the present case the Committee has solicited the views of a substantial number of judges and lawyers who are familiar with Judge Carswell's work, and it has also surveyed his published opinions. On the basis of its investigation the Committee has concluded, unanimously, that Judge Carswell is qualified for appointment as Associate Justice of the Supreme Court of the United States. Respectfully yours,
LAWRENCE E. WALSH, Chairman. The CHAIRMAN. Senator Holland.
STATEMENT OF HON. SPESSARD L. HOLLAND, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator HOLLAND. Thank you, Mr. Chairman, and members of this honorable committee.
I am glad to appear in strong and unlimited support of the nomination of Judge Harrold Carswell to be an Associate Justice of the Supreme Court.
My distinguished colleague, Senator Gurney, recommended Judge Carswell to the Justice Department and to the President. I am glad to join him strongly in his recommendation, that this nomination be confirmed.
I did not know Judge Carswell as a boy and as a young man, though I do know something of his distinguished family background and something of his splendid fighting record as an officer of the U.S. Navy in World War II.
He came to our State about the time that he married one of the lovely Tallahassee girls, and began the practice of law there. I have known him since a few weeks or a few months after his coming to our State.
I may say that his wife is not only a member of a family which has always, for nearly 40 years, been very dear to me but was a classmate of our oldest daughter, and we were frequently visiting back and forth during the 4 years that I served in Tallahassee as Governor and the earlier 8 years that I served as State senator. And of course, through that connection, I speedily became acquainted with Harrold Carswell when he came to our State.
I was glad to join in supporting his confirmation later as District Attorney for the Northern District of Florida, in which position he must have served well, because I never received from any member of the bar or any citizen of our State any comment concerning him except in complimentary terms. Later on—I believe it was 1958–he was nominated to be district judge for the Northern District of Florida. Again, I was happy to support his confirmation.
I may say that I had a rather good chance to observe his conduct as a trial judge by sitting as a witness in his court in an all-day session from early morning until nearly dark in a rather famous case, Crummer v. Ball, which I am sure some of you have heard about. In that case, 10 or 12 of the leading lawyers of our State were arrayed on each side and took part actively in the trial.
I was impressed not only by the demeanor of Judge Carswell and the dignity of his court, but by the way his rulings were received and accepted by those lawyers who were so intimately involved in that case. And, incidentally, I approved each of his rulings as a lawyer of some years practice myself.
My feeling is that coming onto the Supreme Court as a young man and with credentials of active experience in the Federal courts as a judge, and then more recently in the Fifth Circuit Court of Appealsand I was glad to support his promotion at that time, when he was named to the Fifth Judicial Circuit-he has had direct connection with the functioning of the Federal courts. It should be most helpful to him. I think that his performance in these two Federal judicial jobs and in the Federal law enforcement job which he earlier held should be of great value to him and to the court and our country.
In closing, I might say that not only do I strongly support his nomination and hope for his early confirmation, but I anticipate a splendid record to be made by him as a Justice of our highest judicial body.
I feel I would be remiss at this time if I did not, for the State of Florida, of which I am a native, express our appreciation of the fact that after having been a State since 1845 we have at least had one of our citizens, whom I regard as highly qualified, nominated by the President of the United States to be a member of the U.S. Supreme Court.
Thank you very much, Mr. Chairman.
STATEMENT OF HON. EDWARD J. GURNEY, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator GURNEY. Mr Chairman and distingiushed members of the Judiciary Committee, my senior colleague in Florida, Senator Holland, has done his usual excellent job in presenting the nominee to the committee. I shall not repeat nor go into the biographical background of the nominee, but rather I shall confine my presentation to just a few general observations about this nomination which I think perhaps I ought to do as the Member of the U.S. Senate who brought his name to the attention of the President.
It seems to me that one of the great obligations of a U.S. Senator, among his many duties, is the recommending of names to the President for nomination to the Federal bench. I think it is probably true to say that as far as the Federal district court is concerned and the court of appeals the Senators play almost the entire role at least in presenting the name to the President for the nomination.
As far as the Supreme Court is concerned, the highest in the land, they certainly have a good deal to do in the process of name selection. And, of course, they share an equal burden with the resident in the confirmation of a nominee to the Supreme Court. So I indeed view this as an obligation of the highest sort; a U.S. Senator probably has no higher duty.
It was with this in mind that I first approached the job, when I was first elected, of selecting a name for the Fifth Circuit Court of Appeals vacancy. As you may realize, this was a most-sought-after post. I consulted members of the bar, members of the judiciary, and
members of the community, leading members in the Northern District of Florida.
Without any question in my mind, I presented to President Nixon for nomination the most qualified man in the Northern District of Florida for this vacancy, Harrold Carswell. I can say here with all candor that the nomination was unanimously and favorably received in Florida and subsequent to that, I think, in the entire area of the fifth circuit.
Now, then, let me say a word about the probable issues of this nomination. I do not expect that the ethical issue will be before us as it has been in the past. I do not think there is any question about the judicial excellence of the nominee; his record proves that. There will be an issue; we know what it is. It is before us the civil rights issue.
I would like to make a comment about that which perhaps I, as the man who presented his name, am best able to make.
Of course, the rallying point will be around a speech made 22 years ago by a young man in his first and only venture in politics. I read about the story in Western Germany, where I was attending a ference a few days ago. The thing that struck me about it was this, and I think this is the most important thing before the U.S. Senate in this particular matter, and I would like to comment on it. It was the judge's reaction when confronted with the words he said 22 years ago, and I quote what he said on CBS television.
He said: Specifically and categorically, I renounce and reject the words themselves and the thoughts that they represent. They are obnoxious and abhorrent to my personal philosophy.
The important thing to me, I think is this: The judge had other avenues to follow which might have been very human. He might have been tempted, any one of us might have done the same thing, he might have explained it away. But he did not do that. He rejected this as his personal philosophy. Now, I think that shows forthrightness, candor, integrity, and strength of character that we need in members of the Supreme Court of the United States of America.
That sheds a whole lot of light upon this issue that is going to be before this committee and before the U.S. Senate.
It shows one other thing that I want to talk about very briefly. It shows an important quality of ability and willingness to change one's mind. Now, this is a nation now in process of great change. I suppose it is like a yeast at work. It is a volcano of restless lava. It is a kaleidoscope of changing color. And even though our legal system is based upon one of English jurisprudence and one of precedent, the law is also a living thing, and it is subject to change with passage of time. And if this Georgia political speech of 22 years ago reveals anything to us in the U.S. Senate, it certainly proves that, along with the subsequent decisions of Judge Carswell in the civil rights field, which this committee will explore in full, it shows that he has the quality of change.
And, certainly, that is what we are looking for in a possible nomination of the Supreme Court of the United States.
So, Mr. Chairman, and distinguished colleagues of the Judiciary Committee, as perhaps the Senator who had most to do with the presentation of this name, it certainly gives me great pleasure and great