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Senator Cook. The reason I say this is because by the record, as you stated, on March 4, 1969, in the fifth circuit, in 'Weeks v. Southern Bell Telephone, they ruled that weightlifting limitations barring women from jobs but not men, were out.
Mrs. FRIEDAN. Judge Carswell, sir, was not sitting in it.
Senator Cook. He didn't sit at all. If we know how the procedure works, there are 15 judges in the Fifth Circuit. They all sit in different cities. They are mailed these things, they look them over and they are asked what should be done. The opinion of Weeks v. Southern Belt Telephone was mailed to Judge Carswell. Now, if this is his opinion and if he is against women, then why do you think that he did not write a dissenting opinion in the Weeks v. Southern Bell Telephone case? Because if he is really against women, why was he not against the ruling of the Fifth Circuit that ruled that such weightlifting limitations barring women were illegal, and why didn't he say they were legal! I think if you lay so much precedence on a case that he didn't hear, that he did not read the testimony of, how do you justify in your mind that if this is his attitude, why did he not, when the Weeks case came to him, because all of the opinions are circulated and he read the Weeks case, why didn't he come to the conclusion that this is a case he should write a dissenting opinion on because it was giving women a right under Title VII that he thought maybe they shouldn't have? Why didn't he?
Mrs. FRIEDAN. It is clear, sir, that he was not on the three-judge court that heard that case and the chief judge did not in that case ask for a rehearing. But it is also clear in the record that Chief Judge Brown did ask for a rehearing on the I da Phillips v. Martin Marietta case. One does not there, therefore, have to resort to mindreading. In that instance, he ruled, he did vote. And one can fairly judge a man by his record. I am not a lawyer, but I do understand that mindreading isn't somehow permissible in courts of law.
Senator Cook. The point I am trying to make to you is, in all fairness, that I think you are condemning Judge Carswell on a case that he did not sit on, on a case that he did not have the record on, on a case that was merely submitted to him saying, should there be an en banc hearing or should there not, knowing full well that the rights of all the litigants were still being preserved. I am merely asking the point because I think, in all fairness to you and all fairness to your movement, which I will wholeheartedly subscribe to, I think you are on awfully thin ice. I will have to be honest with you and I can merely say that many of the other judges you are condemning on the same basis. Many of us, not having read the record, are assuming an awful lot.
Mrs. FRIEDAN. Well, sir, in my responsibility as a spokesman for women in the country
Senator Cook. I think you handle it very well.
Mrs. FRIEDAN (continuing). And as a woman myself, it is my responsibility to take this question very seriously indeed. I am glad to see that you are enough aware of the implications of Judge Carswell's ruling to feel the necessity of apologizing. I, myself, so one does not have to resort to mindreading, would wonder if you gentlemen should not put some questions to Judge Carswell about ascertaining more fully his views on the question of the rights of women under the Constitution, since the question has been raised. But as of the moment, with this on the record, I would concur with Congresswoman Mink that I would certainly protest the appointment of a judge to the Supreme Court, to the highest tribunal of this land, who would deny a hearing to women, deny a hearing on a case involving a law of such extreme importance to women as the law prohibiting sex discrimination in employment.
Senator Cook. But may I say for the record that I think there is a great deal of mindreading in your statement. I think there is a great deal of across-the-board condemnation of Judge Carswell, purely and simply because of the remarks that were made, the fact that it says that Judge Carswell discriminated when he did not sit in this case, when he did not hear this case, and I think there is an assumption of a great deal of mindreading in your statement.
I might say to you that, having been a judge before I came here, and having read with great interest and listened with great interest to what you have said, I think the position of women in this country in regard to the courts is abominable. I had under my jurisdiction all of the juvenile courts in my community of 750,000 people. And the poșition that men in this country subvert women to who must seek help from local governments, from State governments, and from national governments, is such that they ought to be horsewhipped. And I say this in all sincerity. So I think that your movement is tremendous and I think that it should grow.
For instance, one of the great things that I am very much involved in in the United States Senate is a constitụtional amendment for 18, 19, and 20-year-olds to vote in this country. I was a strong supporter of it in my State, and everybody considers Kentucky a Southern State, a backward State, and we have allowed 18 and 19-year-old young peoplo to vote in our State for about 10 or 12 years now. We would like some of these progressive, modern, up-to-date States to get on the ball.
Mrs. FRIEDAN. Well, sir, since you bring up the question of constitutional amendments, I hope you are also going to see to it that finally, in 1970, the equal rights amendment to the Constitution is added that will prohibit sex discrimination in any law in this country.
Senator Cook. I am certainly for it. I think it is a just cause that you have, but I think your condemnation goes way beyond the realm of the attitude and the philosophy of Judge Carswell.
I appreciate your testimony.
Do you solemnly swear that the testimony you are about to give will
The CHAIRMAN. Identify yourself for the record. You are president of the Florida Bar Association, is that correct?
TESTIMONY OF MARK HULSEY, JR., PRESIDENT, FLORIDA BAR
Mr. HULSEY. Yes, sir, my name is Mark Hulsey, Jr. I am a lawyer from Jacksonville, Fla. I am also president of the Florida Bar.
I might say, although I was not called as a rebuttal witness following Mrs. Friedan, I want to reassure the committee that neither Judge Carswell not myself is sexually backward. I wanted to clear that point up in your mind.
Gentlemen, it gives me, of course, great pleasure to appear before this committee in support of the nomination of Judge Harrold Carswell to be an Associate Justice of the Supreme Court of the United States. I might say to the committee at the outset that the Florida Bar is the sixth largest bar in America, having some 11,373 lawyers and judges. It is also interestingly enough, the oldest integrated bar in the South, having become fully integrated in 1949 by Supreme Court rule. Every person, then, in Florida, is required to belong to the Florida Bar under our Supreme Court rule.
I might say also that our bar is managed by circuit representatives. These are lawyers who are elected by other lawyers from the 20 judicial circuits in the State, and I add, Mr. Chairman, that under a reapportionment formula that would please former Chief Justice Earl Warren. It is a very democratic process. These circuit representatives are known as the Board of Governors of the Florida Bar, and there are 41 of us.
In anticipation of my appearance before this committee, we conducted a written poll of the 41 members of the Board of Governors. I am happy to say to this committee that the Board of Governors of the Florida Bar, speaking as the elected representatives of the 11,373 lawyers and judges in Florida, unanimously endorse Judge Carswell, and urge this committee to recommend to the Senate his early confirmation.
I might also say to the committee that it has been my pleasure to know Judge Carswell personally for over 17 years. Based on my observations of him, first as U.S. attorney when I was an assistant U.S. attorney in another district-he and I handled a few criminal cases together—and as a trial lawyer, practicing before him in his court in Tallahassee on several occasions, and in one civil rights case, I recall, and on social occasions-based on all of these observations, it is my opinion that Judge Carswell possesses the integrity, the judicial temperament, as well as, of course, the professional competence required to hold the high office of Associate Justice of the Supreme Court of the United States. And I hope that this committee will unanimously recommend his confirmation to the Senate. I will
be glad to answer any questions of the committee. The CHAIRMAN, It is 12 o'clock. Let us recess until 2.
Senator TYDINGS. Mr. Chairman, do you have for the record the introductory remarks I put in on the evening 2 nights ago in connection with Mr. Hulsey?
I would ask unanimous consent that those introductory remarks be removed to the hearing immediately prior to Mr. Hulsey's testimony.
(The remarks from the hearing of January 27, 1970 follow:) Before we recess, I would like to make two statements for the record, since I shall not be here in the morning. Tomorrow, there are going to be two witnesses who, if I were here, I would comment upon to the committee.
The first witness I would like to make reference to is Gov. Leroy Collins of Florida, in my judgment one of the great public servants of this generation. I would like for the record to make that comment for my brother members of this committee, and to formally welcome him to testify before this committee.
It has been my privilege to know Governor Collins since I first worked for Senator Jack Kennedy in the Florida campaign for the Presidency in 1960. Since then, my every experience with Governor Collins has shown me that he is a man of the highest integrity and, a great American.
I would also like for the record to state that the President of the Florida bar, Mark Hulsey, Jr., is a partner of one of my oldest and closest friends from Jacksonville, Fla., Lloyd Smith.
I have known Mark Hulsey, myself, personally, for some period of time. He has a very fine record in the bar. He has been president of the Florida bar, which I understand is the oldest integrated bar in the South.
He has also been very active in civic affairs in his State. He is a fine gentleman.
Senator Bayh. Could I ask the witness a question, please. I am not going to be able to be here immediately after the recess.
In response to your opening remark, Mr. Hulsey, I don't think I said the judge was sexually backward.
I would like to get your expertise relative to this hearing process that we have been debating back and forth. I am not a lawyer in that circuit. You are. Could you give us the benefit of your feelings here? I want to read you one of the statements that the judge made, because I am not sure you were here.
Mr. HULSEY. I was here. I heard it.
Senator Bayh. Then you know what the judge said relative to this and I don't want to make a greater issue out of this than it should be. But what does it mean when the judge votes to deny a rehearing?
Mr. HULSEY. Well, I think we are talking about two different things. Do I understand that I get an expert witness fee now in testifying before the committee ?
Senator BAYH. I thought perhaps you had already been paid that before you came.
Mr. HULSEY. Thank you, sir. No, sir; I haven't.
Senator BayH. I think the record should show that that last remark was in jest.
Mr. HULSEY. Thank you, Senator. I recall when you appeared at our convention in Miami and we were delighted to have you down there.
Senator Bays. I enjoyed it. It is nice of you to be here.
Mr. HULSEY. I think we are talking about two different things. Senator Cook mentioned that automatically, almost, in every lawsuit, when you lose the case, the first thing you do is file a petition for rehearing. That means, of course, that-the court sits in banks of three. You only have three judges sitting.
Senator Cook. I might say that in a number of cases, I filed a petition for rehearing that I knew darned well I wasn't going to get, but I really filed it and I filed it with all the intent that lawyers file a petition for rehearing, in an effort to get another crack at it.
Mr. HULSEY. Yes, sir.
I might say particularly the fifth circuit asks us, in order to prod some of the dilatory lawyers—I am not one of those—not to file these petitions unless you really mean it. Ofttimes, you file a petition automatically.
I don't know the facts of that particular case. I know nothing about
it other than what I have heard here. I don't know whether a petition for rehearing, was filed or not before the three-judge panel. I understand something was filed from Judge Brown's footnote. It may be that the Government, as amicus curiae, filed some kind of paper. But be that as it may, Judge Brown, who is not particularly shy and retiring, as you heard from his rhetoric, apparently asked the court to consider a hearing en banc. I am sure the committee realizes that when you have 15 men sitting on the court, all of whom are pretty strong minded and all of whom think they are absolutely right, that when you have the panels of three sitting around, oftentimes, you have conflicts that arise. By that, I mean you could have panel A hearing a case involving a certain matter of law; you can have panel B in another part of the circuit hearing the same point of law, but a different panel of judges. So they want to be certain that when the fifth circuit court of appeals speaks, it speaks as one court, even though they have the several panels sitting around the circuit. So, therefore, I am not familiar with the internal procedure, but I know they have an internal procedure whereby the judges can request, when they think there is something wrong with a given opinion, or may conflict with something that another panel has ruled OK, they circulate that opinion among the judges by mail. In Jacksonville, for example, we have a circuit judge sitting there, Judge Simpson. He receives these opinions through the mail. He reviews it and decides whether or not to grant the en banc hearing. That merely means that if he reads the decision, he thinks there is something wrong with it, too, and that Judge Brown's letter is persuasive, then he will vote by mail to having rehearing, or to have a hearing en banc. That means all 15 judges will sit.
Well, as I understand this case, they did just that. I don't know who the three judges were originally, but they ruled 2 to 1 upholding Judge George Young, I presume, from the middle district of Florida. Then Judge Brown said, well, let's have the full panel consider this case. So they circulated the case around the whole panel to determine whether or not they wanted to have a full hearing. And 10 judges apparently voted no and five voted yes
Senator Cook. Three voted no. The CHAIRMAN. There were 13 judges on the court at that time. There are 15 now.
Mr. HULSEY. I see.
Frankly, although I, too, have a number of ladies in my house, and although I, too, am very much in favor of womanhood, I think it is a little unfair to say that because Judge Carswell, in an administrative matter within the circuit court of appeals, voted not to hear a case en banc, automatically labels him as antiwomen. I just don't think that follows. If that is what you are asking me to comment on.
Senator Bayh. I wanted to get your opinion on that procedure, because I am not familiar with it.
Mr. HULSEY. I don't think there is anything unusual about it. I thing it is routine, it happens frequently. And as I say, the primary purpose, and we have this in Florida, where we have district courts, is to enable the court to speak as one voice. Because you know, when you have a negative court of law and then you have different panels sitting, you are always going to run the risk of some difference of views among the judges themselves.