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legislation was before Congress. This was in the context of all the political controversy. The President had just desegregated the military in which Mr. Carswell himself had been matured in part. The Nation had just then read President Truman's special report “To Secure These Rights." The issue was now central, the occasion to reflect was far better provided than in 1933.
We have to look at the situation in terms of distinction in point of time: When Senator Black was before the Senate for confirmation to the Supreme Court, and the relative unimportance, although I say that with regret, the relative public unimportance of the race issue, and the posture of the Supreme Court, and the difference in quality today.
If the Warren court will be historically a monument, it will probably be principally because it at least gave that initial push to the momentum of concern in the United States dating from 1954. There has been in my view a unique and admirable unanimity on this crucial question since that time.
I can think of no more regrettable insult to the Warren report, unless the committee is virtually reassured that this was merely a forgivable incident, and can find those reassuring events, in the absence of that kind of evidence I tell you in all respect that it will be a major insult to the legacy of the Warren report if this nomination is confirmed.
I find no similar situation in the circumstances of the confirmation of Senator Black.
Senator Bayi. Thank you. I have no further questions.
I would like to point out that I am sure that this has been no little inconvenience to you, Professor, and I am grateful.
Mr. VAN ALYSTYNE. I appreciate the opportunity very much. - Senator BAYH. Let me just make one observation. This is particularly revealing to me because we did not see eye to eye on the previous nominee. I was struggling with a different subject on that, but you have obviously given this a great deal of attention.
Senator THURMOND. The Senator from Indiana did not listen to your testimony in the Haynsworth case but it seems he is very interested this time.
Senator Baył. Neither did the Senator from South Carolina prove his consistency, and I imagine the record will show that.
Senator THURMOND. It looks like the professor is going to lose both times.
Mr. VAN ALYSTYNE. Well, with regard to Senator Bayh's predicament at least, I am reminded of a recollection of Justice Frankfurter who said that it is so seldom that wisdom ever comes, we ought not to be reluctant though it comes late.
Senator THURMOND. Thank you again.
The evidence you give in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?
Mr. LOWENTHAL. It will.
TESTIMONY OF JOHN LOWENTHAL, PROFESSOR OF LAW,
RUTGERS UNIVERSITY Mr. LOWENTHAL. My name is John Lowenthal. I am an attorney, a graduate of Columbia Law School, and professor of law at Rutgers Law School in Newark, N.J. I am a member of the New York Bar, and the bars of the Supreme Court of the United States, the second, fifth, and eighth circuits and various Federal district courts in those circuits.
I come here in my capacity as a private citizen and as a lawyer who litigated a civil rights case before Judge Carswell in the Federal district court in Tallahassee in 1964. In that case Judge Carswell by his actions to my satisfaction completely vindicated his statement of 1948 that he would always act in accordance with the sentiments he expressed in 1948.
Senator Bayh. Pardon me. You do not have a prepared text, professor
Mr. LOWENTHAL. No, sir; I do not.
Mr. LOWENTHAL. His statement that in 1948 he would always act in accordance with his belief in segregation and white supremacy.
Senator Bayn. In other words, you feel that
Mr. LOWENTHAL. His conduct in the case I will describe to you was. consistent with his 1948 beliefs. But I will state the facts and leave the conclusions to you.
Senator Bayh. I will not interrupt. I had misunderstood.
Mr. LOWENTHAL. Please do interrupt so that I can clarify whatever you wish clarified. I briefly described the case in a letter to the New York Times that was published on January 25, at page E-15, and I would like to put that into the record in lieu of a written statement if I may.
Senator BAYH. Does the Senator have any objection to this being put in the record ?
Mr. LOWENTHAL. May I do that?
Senator Bayu. The Communist oath, we are going to put it in the record. [Laughter.]
Senator THURMOND. Do you want it in the record ? Are you going to testify about this today?
Mr. LOWENTHAL. Yes. Senator THURMOND. I see no objection to it. Without objection it will go in the record.
(The letter referred to follows:)
[From the New York Times, Jan, 25, 1970]
Car WELL'S RECORD
NBWARK, N.J., January 20, 1970. TO THE EDITOR: When G. Harrold Carswell was a Federal district judge in Tallahassee, he was well known to both local and out-of-town lawyers as a vigorous opponent of civil rights. As I encountered him, he was no “strict constructionist" when it came to aiding the Old South's cause. Rather, he was such a "judicial activist” that he seemed more the partisan lawyer than the disinterested judge one hopes to find on the Federal bench.
Judge Carswell's concept of the judge's role is revealed by the following: Civil rights workers helping blacks register for the 1964 Presidential election were charged in local county courts with criminal trespass and juvenile delinquency.
Lawyers furnished by the Lawyers Constitutional Defense Committee removed the cases to the Federal District Court in Tallahassee; but the county officials ignored the removals, banned the out-of-state lawyers from the county courts, and proceeded to convict and jail the civil rights workers.
Petitions for writs of habeas corpus were filed in the Federal court. Judge Carswell called for argument, but the county officials did not even bother to file an appearance in his court, let alone argue their case. They evidently knew their man: Judge Carswell granted habeas corpus but, at the same time, on his own motion and without a hearing, remanded the cases to the county courts from which they had just been removed. (The remand was reversed on appeal to the Fifth Circuit. Wechsler, et al. v. County of Gadsden, Fla., Oct. 18, 1965. Last year, President Nixon elevated Judge Carswell to the Fifth Circuit.)
When I had to leave Tallahassee, I could not find a local lawyer willing to take civil rights cases. Leading members of the Tallassee bar, from whose ranks Judge Carswell came and who now practice before him, told me that they sympathized with the problem of obtaining counsel in civil rights matters, particularly for defendants in criminal cases, but that they could not afford to jeopardize their practices by taking such cases.
Judge Carswell's partisan judicial temperament, and his proclivities on civil rights, do not seem to me apprproiate for a Justice of the Supreme Court of the United States.
Professor, Rutgers Laro School. Mr. LOWENTHAL, Thank you. This was in August 1964 when Senator Goldwater was opposing President Johnson for the Presidency. In northern Florida, which a previous witness today described as further to the right than Louis the 14th I think he said, most of the Democratic figures in northern Florida were switching to support Goldwater. That was true, for example, of the registrar of voting in Gadsden County, which is near Tallahassee. The register of Gadsden County was also the editor of the local newspaper, and he was a Goldwater supporter whose office both for the newspaper and for registration was plastered with Goldwater literature.
There were at the time a number of voter registration workers advising local blacks about their Federal rights to register and vote in the forthcoming Federal elections.
Seven of these voter registration workers were arrested by Gadsden County officials in August 1964 on a charge of criminal trespass.
Senator BAYH. Excuse me, Senator Thurmond. I do not want to take precedent here, but since we do not have a written statement, I would like to make certain that there is a clear understanding. Do you mind if I interrupt occasionally to ask a question! I do not want to throw the witness off, but as far as these registrars are concerned, could you just give us a word of explanation? Were these federally appointed registrars! Were they local registrars? Were they volunteers So we will know in what capacity they were on the scene?
Senator THURMOND. It is getting kind of late. As briefly as you can make it we will appreciate it.
Mr. LOWENTHAL. I will make it brief. My understanding is that the registrars are not federally appointed. They are appointed locally: They handle registration for State as well as Federal elections and they get paid some modest sum.
Senator BAYH. They were official registrars!
Mr. LOWENTHAL. Official registrars, absolutely. Anyone who wished to register had to be registered by the registrar. Seven workers were arrested for criminal trespass, although several of them were local residents, and had relatives in the vicinity. The case was immediately removed from the local county court, Gadsden County, to the Federal district court, Judge Carswell's court in Tallahassee, the reason being that the attorneys thought that the local officials who were hostile to the voter registration drive would be unlikely to accord an adequate or fair trial. So the case was removed properly to the Federal district court.
At that point Judge Carswell indicated his attitude for the first time in this case by requiring two filing fees, which was no small matter for the impoverished voter registration workers, although there is law in his circuit and was at that time expressly for forgoing a requirement of filing fees in removal cases. The law in his circuit was Lefton v. Hattiesburg, 33 Fed. 2d 380.
This has always seemed to me a departure from strict constructionism. Nonetheless the filing fees were paid. The removal papers were filed with Judge Carswell, but notwithstanding the Gadsden County officials ignored the removal to the Federal court, ejected the lawyers from the county court, gave no time to the defendants to hire or obtain any lawyers, and proceeded to try, convict, and jail the voter registration workers.
Senator BayH. Excuse me just a moment. How does one eject a lawyer? How do authorities or officials eject lawyers ?
Mr. LOWENTHAL. Marshals or other officers in the court were directed physically to remove the attorneys from the courtroom.
Senator BAYH. So these people were tried and convicted without any lawyer to represent them?
Mr. LOWENTHAL. That is correct. At that point or early the next morning at 2 a.m., I arrived in Tallahassee and it was obvious that since
my clients were now in jail, the first move was habeas corpus, so I prepared habeas corpus petitions at once.
It was evident to all those with experience in northern Florida that it was not safe for voter registration people to be in local jails. Moreever the voter registration drive was stalled while the workers were in jail, and the local blacks were intimidated from registering: Judge Carswell did not make it easy to file the habeas corpus petitions.
In the first place, he required after we had prepared them that they be redone on his own special forms. These required the signature of the petitioners so we had to drive way out to Quincy where the jail was, some 25 miles from Tallahassee, only to learn that the defendants were 25 miles further out on a road work gang.
Senator Bayi. Is this common practice to require the signature of the petitioner?
Mr. LOWENTHAL. I do not know. At that point I telephoned Judge Carswell and told him of the situation, and he agreed to accept the habeas corpus petitions without signatures under the circumstances, and asked me to convey to the Gadsden County officials his invitation to appear for a hearing before him. The Gadsden County officials, the prosecutor, declined to appear in Judge Carswell's court. I attended therefore in Judge Carswell's chambers a session in which I can only describe his attitude as being extremely hostile.
He expressed dislike at northern lawyers such as myself appearing in Florida, because we were not members of the Florida bar. I might add here that we could not find local lawyers willing to represent the voter registration people in Florida. It was either northern lawyers or no lawyers.
Senator Bayu. Who were those lawyers who were earlier ejected from the case?
Mr. LOWENTHAL. I do not recall their names, but they were lawyers who were also, I believe, from the north and had preceded me representing these voter registration workers. They then had to return to their jobs or whatever else in the north and I was sent down to replace them.
Senator BayH. If it is possible I would appreciate it if you could get their names. I would like very much to have those names.
Mr. LOWENTHAL. Judge Carswell indicated that he would try his best to deny the habeas corpus petitions, but I pointed out that he had no discretion in the matter, that the Gadsden County officials had clearly acted in derogation of Judge Carswell's own jurisdiction, since the removal to Judge Carswell's court was wholly proper. Judge Carswell agreed with that, and granted the habeas corpus petitions, but at the same time on his own motion, because the Gadsden County officials were not there to ask for it, and without notice to the defendants, the habeas corpus petitioners, and without a hearing or any opportunity to present testimony or argument, he remanded the cases right back to the Gadsden County courts.
I at that point moved before Judge Carswell directly for a stay of his remand so that I could have time to file a notice of appeal to the fifth circuit. He denied my request for a stay, pending filing notice of appeal.
For the record, I would like to produce Justice Carswell's order granting the habeas corpus petition, remanding to the Gadsden County court and denying my request for a stay. I have sufficient copies if I may be permitted to offer it for the record.
Senator BayH. May we have that for the record, Mr. Chairman? Senator THURMOND. Without objection. (The documents referred to follow :)
The United States District Court for the Northern District of
Florida, Tallahassee Division
(Tallahassee Civil Action No. 1022) ORDER GRANTING PETITION FOR WBIT OF HABEAS CORPUS, FILED AUGUST 17, 1964
This cause came on to be heard ex parte with counsel for petitioners being present and after attempted notification of appropriate State of Florida authorities, and it appearing to the Court that petitioners complied with the removal statutes of the United States by filing their petition for removal with the Clerk of this Court on August 14, 1964, and that thereafter but prior to purported trial of the said petitioners in the Justice of the Peace Court, Quincy, Gadsden County, Florida, the Justice of the Peace was personally served and acknowledged service of copy of the petition for removal in accordance with the statute, it is, therefore, clear under the provisions of Title 28 United States Code 1446 that the Justice of the Peace Court, Quincy, Gadsden County, Florida, was di. vested of jurisdiction to try these petitioners and that the subsequent trial was a nullity at law. The above statute is very specific in stating that a State Court