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.

JOHN LOWENTHAL, Professor, Rutgers Law 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 BAYH. 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

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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 BAYH. 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

COUNTY OF GADSDEN, FLORIDA, PLAINTIFF

v.

STUART WECHSLER, ET AL., DEFENDANTS

(Tallahassee Civil Action No. 1022)

ORDER GRANTING PETITION FOR WRIT 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 divested 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

from whence the action is attempted to be removed loses jurisdiction immediately upon it being served with appropriate removal papers from United States District Court, and it is not necessary that a specific order to this effect be entered by the United States District Judge as apparently was the impression of the Justice of the Peace.

The petitioners are, therefore, entitled to the relief prayed for as a matter of law in that their petition for writ of habeas corpus should be granted. It is, therefore, upon consideration hereby,

Ordered that petitions of each of the above entitled petitioners for writ of habeas corpus are hereby granted and the Sheriff of Gadsden County, Florida, is hereby directed to release said defendants from his custody forthwith upon service upon him, or his authorized deputy of a true copy of this order certified by the Clerk of this Court. Personal service by attorney of record for these petitioners upon the Sheriff of Gadsden County, Florida, is specifically authorized. Done and Ordered in Chambers at Tallahassee, Florida, this 17th day of August, 1964.

G. HARROLD CARSWELL, United States District Judge.

ORDER OF REMAND, FILED AUGUST 17, 1964

(Title Omitted)

It appearing to this Court that the removal of the above entitled cause from the Justice of the Peace Court, Quincy, Gadsden County, Florida, should be remanded to that Court for further proceedings in accordance with law and the Constitution of the United States, in the interest of justice and in the interest of sound judicial administration, and in accordance with the holding and basic philosophy of Dresner, et al v. Municipal Judge, City of Tallahassee,

F.2d --, decided by the United States Court of Appeals, Fifth Circuit, on August 5, 1964, affirming the order of this Court dated August 3, 1964, it is, therefore, upon consideration hereby

Ordered:

1. This cause be and it is hereby remanded to the Justice of the Peace Court, Quincy, Gadsden County, Florida, for further proceedings in accordance with law. 2. The petitioners here, defendants in the subject action pending in the Justice of the Peace Court, Quincy, Gadsden County, Florida, shall be allowed to make new bond, or reinstate old bond on the original proceeding in an amount not more than that originally set pending trial or other proceeding in accordance with law.

Done and Ordered in Chambers at Tallahassee, Florida, this 17th day of August,

1964.

G. HARROLD CARSWELL, United States District Judge.

ORDER DENYING PETITION FOR STAY, FILED AUGUST 17, 1964

(Title Omitted)

Attorneys for petitioners, defendants in the criminal proceeding in the Justice of the Peace Court, Quincy, Gadsden County, Florida, having moved ore tenus for a stay order from this Court staying the proceedings in the said Justice of the Peace Court pending the possible filing of notice of appeal filed by them in petitioners' behalf from order of this Court remanding this cause to the said Justice of the Peace Court be and it is hereby denied.

G. HARROLD CARSWELL, United States District Judge.

Mr. LOWENTHAL. If the committee wishes additional copies. I have them. The documents that I have just put in the record come from the printed record on appeal to the fifth circuit in Wechsler vs. County of Gadsden, Fla., No. 21825 filed in the Court of Appeals for the Fifth Circuit on February 4, 1965, pages 32 through 35.

Senator BAYH. This all took place just about 5 years ago?

Mr. LOWENTHAL. Yes.

Judge Carswell refused to permit his marshal to serve the habeas corpus petitions on the Gadsden County sheriff, although I understood, but I do not recall from what source, that it is routine practice or had theretofore been routine practice for the Federal marshal to serve habeas corpus petitions.

Senator BAYH. Excuse me, I hate to keep interrupting here.

Mr. LOWENTHAL. Please do.

Senator BAYH. You had a petition for habeas corpus granted?

Mr. LOWENTHAL. I was the lawyer before him, and I asked that order granting the habeas corpus on the Gadsden County sheriff, so that I myself had to drive out to Quincy and serve it on the sheriff. I did that. The sheriff produced the jailed voting registration workers, and at once rearrested them because Judge Carswell had had his marshal telephone the sheriff to advise the sheriff that Judge Carswell had on his own motion remanded the cases right back to the Gadsden County court.

Senator BAYH. You say the judge refused to let his marshal serve this. What conversation transpired there? Were you present when this order was made?

Mr. LOWENTHAL. At all times.

Senator BAYH. You heard the judge say "Mr. Marshal"

Mr. LOWENTHAL. I was the lawyer before him, and I asked that the marshal serve the habeas corpus order on the Gadsden County sheriff. Judge Carswell declined to have his marshal do that, and said that I myself could do it, which I had to do.

Senator BAYH. What about these phone calls? You say he had the marshal call the Gadsden County sheriff. How are you familiar with that call?

Mr. LOWENTHAL. I was in Judge Carswell's chambers and office, and I do not remember whether I overheard the conversation between Judge Carswell and his marshal or whether somebody reported this to me. I do not know. What I do know is that when I got out to the sheriff with the habeas corpus order to release the men, the sheriff already knew of the remand, and therefore on the spot produced the defendants and rearrested them and put them back in jail.

Senator BAYH. Since I have already interrupted, could you please tell us what grounds the judge gave for having given habeas corpus, and assuming jurisdiction of the case in the first place, and then waiving it right back to the party from when he had assumed jurisdiction? Mr. LOWENTHAL. The ground he gave is stated in his order of remand that I have put into the record. He said:

It is in the interests of justice and in the interests of sound judicial administration and in accordance with the holding and basic philosophy of Dresner vs. Municipal Judge City of Tallahassee, a fifth circuit decision of August 5, 1964. When I finally could find that unreported decision, I concluded that it had nothing whatever to do with the case. It was a decision in which the fifth circuit had directed a district judge to amend a habeas corpus order in some respect, so irrelevant that I do not recall what it

was.

Senator BATH. Can you give us the citation again, please?

Mr. LOWENTHAL. Dresner v. Municipal Judge, City of Tallahassee, U.S. Court of Appeals, Fifth Circuit, August 5, 1964. I have a penciled