indicating that relief on the merits should have been granted to the plaintiffs.

In Dawkins v. Green, Negro plaintiffs sought to enjoin police and municipal officers from seeking to enforce certain statutes on a discriminatory basis to intimidate and harass Negroes, and to prevent them from exercising certain constitutional rights. Without holding any hearing to provide the plaintiffs an opportunity to establish that the officials were in fact acting maliciously and in bad faith, Judge Carswell granted summary judgment against the plaintiffs based only on conclusory affidavits submitted by the officers. Again the court of appeals reversed, holding that this preemptory use of summary judgment was in error, and remanding the case for a hearing on the merits. In Steele v. Board of Public Instruction, Judge Carswell accepted an extremely grudging desegregation plan submitted by the county in 1963 and approved its continuing operation in 1965, to be reversed by the court of appeals on the basis that the plan was constitutionally inadequate.

In Augustus v. Board of Public Instruction of Escambia County, suit was brought on behalf of Negro children to enjoin segregation in the county schools and racial assignment of the teachers. Judge Carswell's opinion manifested a severely restricted interpretation of the Supreme Court's opinion in Brown v. Board of Education, concluding that it applied only to the segregation of children, not the teachers, finding no basis at all for the proposition that the racial assignment of teachers may also violate equal protection owing the students, and he denied them an opportunity to establish that systematic racial assignment of teachers may obviously bear on the quality of the student's own education. In reversing, the court of appeals held that it was error not to allow the plaintiffs an opportunity to show to what extent they may be injured by racial segregation of teachers.

Let me interrupt my prepared statement at this point to point out that when the identical issue came before Judge Haynsworth he, as the fifth circuit judge, of course recognized that the students were in a suitable position to contest that issue and granted full relief on the merits.

In a companion case brought before Federal district court Judge Simpson in the middle district of Florida on the same issue Judge Simpson also recognized that that was the point.

In short, gentlemen, Judge Carswell's opinion on this issue stands unique as a severe and restrictive and subsequently reversed interpretation on a principal point of constitutional law.

Senator BAYH. To put this in proper perspective, since we were talking about the fourth and fifth circuits, in this case you say Judge Carswell held exactly contrary to what another Federal district judge in Florida held and contrary to the fourth circuit?

Mr. VAN ALYSTYNE. That is correct.

Senator BAYH. And the interesting thing, if I am correct, is that of the cases you have cited, four are cases that he held while he was district court judge and they were subsequently reversed not by the Supreme Court but by the court of appeals?

Mr. VAN ALYSTYNE. That is correct. It is correct also, of course, that there are several cases in which relief was not denied to plaintiffs suf

fering injury from unlawful racial discrimination (see, for example, Brooks v. City of Tallahassee, 202 F. Supp. 56 N.D. Fla. 1961, Pinkney v. Meloy, 241 F. Supp. 933 N.D. Fla. 1965). They have been repeatedly mentioned here as the Air Terminal and Barber Shop cases.

Senator BAYH. Are there others that have come to your attention? Mr. VAN ALYSTYNE. Respectfully, Senator, those were the only two that I was able to find in 72 hours of research. It is also possible that opinions were overlooked in that these cases are nowhere indexed by judges names.

Senator BAYH. If you find others-I do not speak for the whole committee I would hope you would bring those to our attention as well.

Mr. VAN ALYSTYNE. I would wish to do so in any case from a private sense of responsibility to this committee. Respectfully however, while relief was not denied in these cases, it was only in circumstances where heavily settled higher court decision and incontestably clear acts of Congress virtually compelled the result, leaving clearly no leeway for judicial discretion to operate in any other direction. I would respectfully invite the committee's particular attention to the particular opinions to establish that conclusion.

More disturbing in the cases generally, and by generally I mean not to restrict myself to the area of race relations at all, although intrinsically far more difficult to illustrate in the nature of the shortcoming, there is simply a lack of reasoning, care, or judicial sensitivity overall, in the nominee's opinions.

There is, in candor, nothing in the quality of the nominee's work to warrant any expectation whatever that he could serve with distinction on the Supreme Court of the United States.

It is, moreover, in this context and on the basis of this subsequent record that the Senate must resolve fair doubts in assessing the significance of a acknowledged statement made by the nominee under public circumstances, as a mature man of 28 years, with a graduate education in the law and experience in business affairs, now to be considered for the highest judicial office in the United States. This is not the time, in this public room, for any of us to weigh these words for all their impact. Rather, it is for each of you to go to some private place, to these words again, slowly and aloud, listening again, then to decide the future of the Supreme Court and the advice of the Senate:

I yield to no man, as a fellow candidate or as a fellow citizen, in the firm vigorous belief in the principles of white supremacy and I shall always be so governed. (G. Harrold Carswell)

Senator THURMOND. Any questions, Senator Bayh.

Senator BAYH. This is from one Senator's standpoint a damning piece of testimony, offering the judge's

Mr. VAN ALYSTYNE. Senator, I have not come here to damn Judge Carswell. I do not know him personally.

Senator BAYH. Perhaps I should use a word other than damning. Mr. VAN ALYSTYNE. No, but I merely wish to volunteer this observation if I could. It was really after a great deal of personal agonizing that I decided to appear at all. I was concerned, however, that with the relative brevity of time for others to make some systematic and professionally responsible review of the judge's decision there might be

no one else who could attempt to advise members of this committee in terms of your own question, Senator, whether there were reassuring events in this 20-year hiatus of time, so that one could honorably, as I should want to do as well, wholly dismiss and discount the utterance of 1948.

Senator BAYH. I want to tell you, Professor, I have been searching for those. I have been hoping that we can find them.

You were Assistant Attorney General in the Civil Rights Division of the Justice Department. At what time?

Mr. VAN ALYSTYNE. In the year 1958-59.

Senator BAYH. That was during the Eisenhower administration?
Mr. VAN ALYSTYNE. It was.

Senator BAYH. You were deputy attorney general of the State of California?

Mr. VAN ALYSTYNE. Yes, sir.

Senator BAYH. A member of the bar?

Mr. VAN ALYSTYNE. Yes.

Senator BAYH. Magna cum laude from the University of Southern California. Those are pretty impressive credentials, and I would assume that those credentials plus your sincerity indicates very well that you do not take the analysis that you have given us lightly. Mr. VAN ALYSTYNE. Not at all.

Senator BAYH. May I ask just one question, the same question that I asked of a previous witness. Do you make a specific comparison between the Hugo Black example and the Judge Carswell example? Mr. VAN ALYSTYNE. I can and I think it is in three dimensions rather than two. I agree with Professor Orfield and his distinctions and would want to add additional observations about reassuring events, aside from his nominal affiliation with the clan.

As county prosecutor of Bessemer County in Alabama, Hugo Black prosecuted the mayor and chief of police for extorting confessions from Negroes. That is a reassuring event in my mind. As a U.S. Senator, he had ample opportunity to take a political position under very public circumstances on a variety of constitutional and civil liberties issues. In one case, for instance, he voted against the Smoot-Hawley tariff, a very complicated bill, and primarily on the basis that it gave a certain power to one of the customs masters to screen out certain forms of writing from the United States; that is to say, his was the first amendment objection.

This matter was carefully reviewed by people of politically liberal persuasion at the time, and they did find a repeated series of reassuring events at this time, so to indicate that at the very worst then Hugo Black's affiliation with the KKK was one of convenience, given their overwhelming political control of the area, but neither by public utterance nor by private conduct nor by subsequent participation in the U.S. Senate or otherwise in public or private life was there lacking the presence of reassuring events or any presence of things more detrimental.

There is, however, a different distinction as well, Senator: 1948 is not 1933. The race issue was not a major issue in 1933. The affiliation of convenience may not speak particularly well of a man, but this was by no means so serious a matter in 1933 as in 1948. In 1948 civil rights

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 BAYH. 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 BAYH. 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 next witness is Mr. Lowenthal of Rutgers University.
Hold up your hand, please.

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.

Senator THURMOND. Have a seat.

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.

Senator BAYH. That is all right.

You say that his actions in the case before you, he vindicatedMr. LOWENTHAL. His statement that in 1948 he would always act in accordance with his belief in segregation and white supremacy. Senator BAYH. 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 THURMOND. Excuse me, I was reading something here. Senator BAYH. 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]

CARSWELL'S RECORD

NEWARK, 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.