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Carswell as a judge, a prospective Supreme Court Justice, when you pick out only certain decisions that seem to indicate your position, fail to give other decisions, and do not go into other areas at all?

Mr. ORFIELD. I believe I have read all of his major school desegregation decisions which is the field of law which I am most familiar with and most competent to testify on. I think that they indicate such a basic betrayal of his responsibility that they are plenty adequate in themselves to justify rejection of the nomination. I think that you will be hearing testimony from some other opposition witnesses on other issues involving criminal proceedings for example.

Senator THURMOND. In the case of Steel v. Taft in which Judge Carswell refused to order the city of Tallahassee to help open its public swimming pools after it had closed them, did you know that the Fifth Circuit had taken the same position in Palmer v. Thompson?

Mr. ORFIELD. I am not raising any complaint about that.

Senator THURMOND. And so you are putting up your opinion against the Fifth Circuit's opinion? > Mr. ORFIELD. I did not criticize him on that case, Senator.

Senator THURMOND. Well, he took the position that was opposite from yours.

Mr: ORFIELD. I did not say that in every civil rights decision he made he was reversed. I am saying that there is such a large number of reversals that I believe that that indicates a general attitude toward the law which is an extremely unfortunate attitude for a district judge and would be a disaster for a member of the Supreme Court.

Senator THURMOND. Do you know anything against Judge Carswell's character, his integrity, his honesty, his reputation?

Mr. ORFIELD. Senator, I have made no investigation of his personality or background, but I think that there should be more time for journalists to investigate his background before the Senate has to act on this issue, because it seems to me that in the short time we have had

Senator THURMOND. Would you answer what I have asked you? Mr. ORFIELD. I do not know Judge Carswell. Senator THURMOND. You do not know anything against him? Mr. ORFIELD. I have no personal personality complaints against him. Senator THURMOND. And you are not a lawyer? Mr. ORFIELD. No, I am not a lawyer. Senátor THURMOND. And yet you are attempting to pass on his qualifications here as a lawyer, and as a judge, when you admit you are not a lawyer yourself, and you know nothing against him so far as his reputation and honesty and character is concerned ?

Mr. ORFIELD. I am making no comment whatever about his character.

Senator THURMOND. All right. Thank you.
Senator Bayh, do you have any questions?
Senatör BayH. Yes.

Mr. Orfield, I for one appreciate the time and effort that you have gone to here. I appreciate the fact that there are some citizens in this country who will voluntarily approach the committee to address themselves to this kind of problem; and although I do not know whether you enjoyed the last experience or not, I imagine you have done a lot more profitable things in your life, from a pecuniary standpoint, than studying the Haynesworth and the Carswell matters.

The distinguished Senator from South Carolina suggested that perhaps you erred in limiting your study to the civil rights field. Do you know of any statement that Judge Carswell made in any other area such as the 1948 statement which was made professing white racism and which would have the impact that this would have if a judge be-, lieved this today?

Mr. ORFIELD. No, I do not, Senator.

Senator BayH. Is it fair to assume that this would alert anyone who was really concerned about the quality of the nominee going to the court that this is an area that one ought particularly to investigate?

Mr. ORFIELD. Absolutely. I think it demands the most careful investigation from the Senate. I think for the Senate not to would be an indication that the Senate was really losing faith in this whole movement for equal rights in this society.

Senator Bayh. I have not decided in my own mind the impact of the cases. Your statement raises additional concerns in

my

mind, your analysis of these cases. I hope you will continue your study until the Senate works its will one way or the other on this, and if you

have other matters, I wish you would bring them to our attention.

Are you familiar with the barber shop and the swimming pool cases and would you care to comment on how they fit in this whole pattern? We want to get everything out in the open here.

Mr. ORFIELD. I have no particular objections to the barber shop case. It seems to me that was sound law. I have not read the swimming pool case and I will not make any comment on it, Senator.

Senator BAYH. You mentioned the Fifth Circuit. There was some discussion between you and our distinguished colleague from South Carolina relative to who was first or who was last vis-a-vis the Fifth and the Fourth Circuits. How would you categorize Judge Carswell's position in the area of civil rights and equal opportunity compared with other judges on the Fifth Circuit, and indeed with other judges in the State of Florida? You mentioned, I think, the Pensacola judge.

Mr. ORFIELD. Well, I think that there were many Federal district judges during this period who exhibited a great deal more sensitivity to the decisions of higher courts, and who were willing to really explore the human and legal problems that were involved in this tremendous transition of dismantling the dual school system. You find Judge Carswell seemingly insensitive to these issues, unwilling to apply fairly clearly established law, and so unwilling to explore new legal issues that are raised, new unsettled legal issues that actually in one case, on a very important issue of faculty desegregation, he just threw it out of his court without even hearing evidence on it, without even examining the law.

I think it is an extremely disturbing record.

Senator Bayh. One of the matters that concerns several of us we must try to determine what kind of Justice Judge Carswell would make if he is confirmed to the Supreme Court. I think it is very true that the 1948 statement would serve as a warning flag to look closely in this area. Most of us, not being without fault in our past experience, would not like to say that a man making one mistake back in 1948 should be forever held accountable for that mistake if indeed he has changed and feels differently.

1 The one example that is continuously relied upon to show how indeed the Court has benefited from one such individual is Justice Black.

Are there similarities between the previous records of Judge Carswell and Justice Black, and does Justice Black's record on the Supreme Court now indicate what Judge Carlswell might do?

Mr. ORFIELD. I have seen that comparison made very frequently, and as I said early in my statement, I think it fails on two counts.

One is that in a very thorough investigation of Black's political career, John Frank, who was a leading witness before the committee on the Haynsworth'hearings, in behalf of Judge Haynsworth, said there was no reference in any campaign speech by then candidate for the Senate Black which indicated either support for white racism or any kind of anti-Negro attitude; and consistently in Black's political career before he came into the Senate, as a police court judge in Birmingham, and earlier than that as a lawyer, he had been willing to defend and to protect the rights of black ligitants.

This is a record wholly different from Judge Carswell's.

Judge Carswell has told us he actually believed that statement when he made it. I think Justice Black made a mistake in joining the clan, later admitted it, later was actively disliked and opposed by the clan. I think the disturbing thing to me about Judge Carswell's statement is that it seems to tie in with the whole history of unwillingness to move, and insensitivity to problems in this whole area of civil rights.

I certainly hold to the view that if this statement had been made and it had been followed by a good sound record as Federal district judge, that the Senate probably should dismiss that as a youthful indiscretion. It wasn't, however. He was later involved in this campaign, with heavy civil rights emphasis in the Russell primary. He was later involved in this golf course business, which seems to me to be far from settled in my mind after hearing the testimony.

And then as a Federal district judge he was repeatedly involved in cases where he was reversed or where he ignored existing law, all in the civil rights field. I do not think Judge Carswell is stupid. I think he is a very effective man in his testimony. I am sure he must have known what the law was. That means that he must have intentionally courted reversal by the superior court, in order to buy some more time for preserving segregation at the local level.

Senator Bayi. It is pretty difficult for us to look into a man's mind and judge his motivation.

Mr. ORFIELD. That is right.
Senator BAYH. We can read the cases and analyze them.

Mr. ORFIELD. Of course, but the only explanation I can think of is stupidity or unwillingness to recognize an existing precedent. I have sort of eliminated the first from my mind.

Senator Bayh. I appreciate your taking the time to come here and give us the benefit of your opinion.

Mr. ORFIELD. Thank you very much.

Senator Bayh. Mr. Chairman, I would like to say, and I think I speak for Senator Kennedy as well as myself, that because of other obligations this afternoon, we were not here when Mr. Proctor testified. We tried to find him. I understand he is at a Washington hotel. I do not know that anybody has been able to talk to him yet but we would like very much to have a chance to ask some questions of Mr. Proctor, and have access to some documents that he had that were not placed in the record. I hope we can do this, if not today, I understand that we are going to hear some witnesses Monday, If that is the case I hope that we can have a chance to ask some questions of Mr. Proctor. Thank you.

Senator THURMOND. On that point, I might say I was not acting chairman, and I think that matter would have to be taken up with the permanent chairman, Senator Eastland.

The next witness is Prof. William Van Alstyne.
Raise your hand and be sworn.
The evidence you will give in this hearing shall be the truth, the
whole truth, and nothing but the truth, so help you God?

Mr. VAN ALSTYNE. I do.
Senator THURMOND. Have a seat.
You may proceed with your statement.

TESTIMONY OF WILLIAM VAN ALYSTYNE, PROFESSOR OF LAW,

DUKE UNIVERSITY LAW SCHOOL

Mr. VAN ALSTYNE. Thank you, Mr. Chairman, Senator Bayh.

My name is William Van Ålstyne, and I am a professor of law at Duke University where I have taught constitutional law and related seminars on the Supreme Court since 1965. Prior to that time, I was professor of law at Ohio State University where I taught courses in constitutional law from 1959 to 1964. I have also been a visiting professor at Stanford University Law School, UCLA Law School, the University of Denver Law Center, the University of Mississippi, and a senior fellow at the Yale Law School.

I have written approximately 30 articles in the field of constitutional law published in various professional journals including the Harvard, Yale, Stanford, and Michigan Law Reviews. A member of the Supreme Court Bar and admitted to practice in California, I have participated in constitutional litigation in the U.S. Supreme Court and the Federal district courts and Court of Appeals for the Fourth Judicial Circuit, either as an amicus curiae or as assigned counsel on contested issues of constitutional law.

Prior to entering academic life in 1959, I served as an attorney in the Civil Rights Division of the U.S. Department of Justice, following a brief period of service as a deputy attorney general for the State of California. My academic degrees are from Stanford University (LL.B. 1958, Order of the Coif, articles editor of Law Review) and the University of Southern California (B.A. 1955, philosophy, magna cum laude).

I mention these matters because I too am a volunteer in these hearings, and have no pretension about my own prestige, and have tried to establish in an appropriate fashion at least some professional basis for appearing before you this afternoon.

I have in addition previously served as consultant to the Senate Subcommittee on Separation of Powers, under Senator Ervin, and I am currently general counsel to the American Association of University Professors and a member of the board of directors of the North Carolina Civil Liberties Union, an affiliate of the ACLU.

This afternoon, however, I appear purely in a personal capacity. A short time ago, as you gentlemen recall, this committee was asked to report to the Senate its recommendations as to whether the Senate Felix Frankfurter believed that it was completely appropriate for Senators to consider the philosophy of nominees; the meaning of due process and the content of terms like liberty are not revealed by the Constitution. It is Justices who make the meaning. They read into the neutral language of the Constitution their own economic and social views.

Let us face the fact that five Justices of the Supreme Court, Frankfurter said: “are molders of policy rather than impersonal vehicles of revealed truths."

One of the Senate's great men, George Norris, of Nebraska, made similar comments during a confirmation debate: “Why," he said, "do we have 5-to-4 decisions and why is it that the five, are usually the same and the four are usually the same? If you will examine you will find that it is the viewpoint of the individual that they have carried with them."

Without charging any dishonesty, without charging any intention to do wrong to either side, after all the close cases, the difficult cases in an appellate court are often determined by human nature, by the viewpoint of the individual. That is part of the man and remains part of the judge.

Senators participating in the Haynsworth debate on the floor of the Senate similarly expressed a very strong conception of the Senator's rights and responsibility to consider a nominee's judicial record. Senator Muskie told the Senate that a Supreme Court Justice must be fully sensitive to the efforts of all Americans to participate fully in our society.

Senator Javits found Judge Haynsworth guilty of persistence in error in his handling of civil rights cases. I think that this is a very interesting and important concept for evaluating Carswell's record, persistence in error. I think that the Senate has a clear right and a responsibility to reject a judge who is guilty of persistence in error in handling his duties on the lower court, especially where basic constitutional rights are involved.

I think that Judge Carswell's record is one of persistence in error, persistence in clear error.

Other Senators expressed themselves on this issue. Senator Mondale spoke of the impact of such an appointment on the country. If the Supreme Court, the one institution

to which black Americans can look with confidence, he said, is turned around there will be no reason for those in the South committee to resist change to act in any other way than according to their convictions.

Senator Case said that the Senate's role in Supreme Court appointments, unlike Cabinet appointments, was of equal responsibility, although somewhat different in character, to that of the President himself.

In the Haynsworth record he found the degree of insensitivity to human rights unfitting for the tribunal to which the American people look as the ultimate protector of constitutional guarantees.

These comments and those of many other Senators certainly apply with even greater force in the case of Judge Carswell. Not only was he insensitive but he failed to enforce existing law.

Senators I believe must attempt to assess the adequacy of a President's nominee to the Court which often plays a decisive role in na

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