leeway on this. But I did say in the Haynsworth discussion that if a nominee had a philosophy that was so out of step with the mainstream and the direction the country appears to be headed, in that it would present a clear and present danger, then I think philosophy would enter into my thinking. As I say, I hope your philosophy doesn't come into that category.

If, indeed, I thought you stated today what that statement said in 1948, I think it would fall in that category. I think you said to the Senators whom you paid the courtesy of visiting, and now to the press and the whole country, that this in no way encompasses your views today on the subject. Is that right?

Judge CARSWELL. That is absolutely correct, Senator.

Senator BAYH. Could you give us some idea, when you changed your mind, or was that just sort of inserted in the high spot of the campaign, where something had to be said to turn the election around?

Judge CARSWELL. I couldn't do it. I, of course, can't pinpoint a moment in my life-I doubt if any of us could really-when we really make a basic conviction about such a matter on anything of that importance. I have been in public life now since July of 1953, I certainly have not got a record that would support any conclusion that I have racist sentiments or that I harbor any notion of racial superiority. I do not.

I know this in my inner self. I know this as a man and as a human being.

Now, as far as judgment to be passed upon that statement, it will have to be up to the good sense of this committee. I wouldn't want any member of this committee to vote for me if they thought I secretly harbored some notions along those lines. I would not expect them to.

I remember something that Justice Stewart said, when he was in a similar position some years back, he made the remark that I paraphrase, that he wouldn't want any member of the committee to vote for him if he had any notions that he was going on the Court to undo all that had been done or that he was not going on the Court to pass his own honest judgment as to what matters would be there before him in the interpretation of the Constitution with a free and clear mind and conscience.

I have to submit it to you not as a matter of convenience but as a matter of conviction.

Senator BAYH. I hope you understand that this matter would not have assumed the prominent place it has if it were not for the importance of that statement. I think you understand we feel duty bound to ask such a question and get your answer on it.

Judge CARSWELL. I thoroughly understand.

Senator BAYH. Would you say that all citizens of all races should be given equal rights to enjoy the privileges of public accommodation in public places? I am trying to get some definition here so we can see exactly what we're facing.

The CHAIRMAN. You are asking him a question that he might have to pass on if confirmed.

Senator BAYH. He certainly may have to pass on it now.

Judge CARSWELL. Insofar as that general question, you have put it under the general statutes and the Constitution. It is already in the law, and I intend to follow it, and have so done.

Senator BAYH. I just wanted to hear you say that. I don't want you to deal with any case or any specific set of facts.

Judge CARSWELL. Under the present law and the Constitution and the decisions of the Supreme Court, I follow them as a judge.

Senator BAYH. Do you feel, in regard to education, educational opportunities, equal housing treatment that the Congress has given, there is nothing about your background or your philosophy that would cause you to want to revoke the present status of the law of the land as it is now?

Judge CARSWELL. I would take the facts as they come before me in an individual case and apply the law as reflected in the Constitution and apply them honestly, with my best judgment, without any mental block or anchor or tug on my mind in this area, Senator.

Senator BAYH. Now, in Senator Kennedy's questioning, the matter of the golf club, social club, or whatever it was apparently, that had segregated membership, came up. Rather than go over that line of questioning, I would like to get your thoughts, if you please, about whether you feel that this effort, which has been used by a number of areas, to go from a public facility to a private facility to avoid the law which requires them to integrate, whether you believe that this type of practice as a facade to escape what the Supreme Court has said, has any place in our society today?

Judge CARSWELL. First of all, I have to say there is nothing I have done about this defunct corporation. I never served to operate as a director at all in any way. The name on the paper says, "director." I never met as a board of directors. It went defunct in 1956. The title to this particular property went into a subsequent corporation for which I was not a director at all.

It was formed in August 1956, and I was out of it on February 1, according to my present record.

Senator BAYH. I take you at your word, that which you said to Senator Kennedy and say again. I think most of us realize this has become a common practice, utilized in many places, and a man sitting on that bench has to recognize, it seems to me, that this is a facade some people try to hide behind.

Judge CARSWELL. Senator, I did not hide behind any facade.

Senator BAYH. Not you, sir, but some clubs try to use this means, some public facilities are assumed by private ones in an effort to escape the law that says to integrate. Does this practice concern you?

Judge CARSWELL. If you're asking me to pass judgment on a set of facts prematurely. I respectfully submit that I can't answer them. It would be highly improper to answer such a question. There may be cases just in the category that vou describe. probably are. on their way to the Supreme Court of the United States. In all likelihood, there may be some before the court on which I now sit. In this area, without attempting to be evasive about it at all, I just simply have to take the position of other nominees, the traditional stance, and, I think, the proper one, that you cannot get into this. I would box myself in in such a manner that I would probably then be disqualified to sit on that case that arose under that situation.

The CHAIRMAN. You bought a share of stock in a country club?
Indoe CARSWELL. Yes, sir.

The CHAIRMAN. Did that corporation ever operate a country club?
Judge CARSWELL. Never operated at all.

The CHAIRMAN. Never operated at all?
Judge CARSWELL. Never operated at all.

The CHAIRMAN. In fact, it was a corporation organized for profit, wasn't it?

Judge CARSWELL. That is my understanding, Senator. It was organized for profit and then, later, a nonprofit corporation was formed, in which I had no part as a director.

The CHAIRMAN. That was a corporation that operated the country club?

Judge CARSWELL. That is the one that got the title to the property that has been the subject matter for discussion.

The CHAIRMAN. Yes.

Senator BAYI. Mr. Chairman, I'm willing to accept the witness' description of the activity or inactivity of the club, and indeed his nonparticipation.

But I think it would make it much easier for some of us who would like to vote in support of your nomination to know that in those communities where a calculated effort is made to create, out of a public accommodation-a park, whatever it might be a private accommodation for the sole purpose of avoiding the necessity of integration, that your vote would be cast against this obvious subterfuge.

Now, this is said with complete leeway to adjust to facts. If you feel you cannot answer this, I will not pursue it further. I am not trying to say what you did was wrong or right that many years ago. What I am trying to determine in my own mind is how we are to vote here.

Judge CARSWELL. I would just have to repeat what I said and give one further example why. I have not read the paper carefully today in this regard, but I heard something somewhere that an opinion has been rendered by the Supreme Court recently, in the last day or so, that touches into this area. I think it would be highly improper for me to opine anything about that at all.

I think I'll have to stand on my record and the statement I have given you.

Senator BAYH. Fine. You have a right to do so.

Is it too specific to ask you to give your opinion on-I think I would probably get the same answer.

Let me deal with another area, because you have every right to answer or not answer our question, and we don't want to get you in a situation where you box yourself in.

Some have made the statements that in civil rights cases, you have used every possible method to delay these decisions or to avoid assuming Federal jurisdiction over matters which were previously State jurisdiction.

Would you care to comment on that, or send us an example in advance to rebut this allegation?

Judge CARSWELL. Senator, I'll stand on my record in that regard. I have not delayed or attempted to delay rendering judgment in this field or any other field of cases whatsoever.

I think that that is the only answer that I can give you.

Senator BAYH. Senator Hart and Senator Kennedy earlier talked about the place of the Court and the vote on the Court in the whole area of social change, what indeed is the responsibility of the Court." Not to repeat those, I noticed that last Thursday, Fred Graham, who

used to serve as counsel for one of the subcommittees of this committee, wrote a rather lengthy article in the New York Times in which he had one paragraph that I would like to ask if you feel is an accurate interpretation of your feeling as to the role you would like to assume on the Supreme Court.

In analyzing your opinions, he felt that these opinions reveal a jurist who hesitates to use judicial power unless the need is clear and demanding, one who finds few controversies that cannot be settled by invoking some well-settled precedent and who rarely finds the need to refer to some social conflicts outside the courtroom that brought this case before him.

Is that an accurate interpretation?

Judge CARSWELL. I think I would be the last one that would be able to render a judgment on my own opinions. They would have to speak for themselves. I think I would have to simply leave that to others to make the analysis.

Senator BAYH. You said earlier today that you didn't think the Supreme Court should be a continuing constitutional convention. Do you believe that as a Federal court judge, a Supreme Court Justice, you nevertheless have to take into consideration the social conflicts to which Mr. Graham referred as repeatedly whirling around us in trying to apply the Constitution and the facts of the situation today?

Judge CARSWELL. I don't see how they can escape doing so. That is the grist that grinds the mill there. That is where your cases come from, from controversies arising among the people across the whole spectrum.

Senator BAYH. It has come to our attention that back in 1958, before I had the good fortune of being on this committee, our distinguished chairman asked you to take the following oath, and I would like to get your thoughts on this. He said:

Do you, George Harrold Carswell, in contemplation of the necessity of taking an oath to support and defend the Constitution of the United States, understand that such oath will demand that you support and defend the provisions of Article I, Section 1, of the Constitution that "all legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives." and that, therefore, you will be bound not to participate knowingly in any decision designed to alter the meaning of the Constitution or any law passed by the Conrgess and adopted under the Constitution?

Would you want to take such an oath here now, as you are preparing to go on the Supreme Court of the United States?

Judge CARSWELL. Senator, I took that oath before the committee, as the record shows, at the time the subcommittee consisted of the present chairman, Senator Eastland, Senator Dirksen, and Senator O'Mahoney. Shortly prior to that time, there was a bill pending in Congress, either by Senator Jenner or one of your predecessors from your State, and Senator O'Mahoney was also interested in it.

They wanted to have such an oath administered to all nominees at all levels in the Federal judiciary.

As it was explained to me by the chairman of this committee prior to that time, this oath was being requested of me. My response to him then and my response to you now would be this. I distinctly remember paraphrasing something that President Eisenhower said when somebody asked him if he would get up and salute the flag. There was

something going on about the flag at the time, as to whether it was appropriate to salute the flag. I stated that I would have no objection taking an oath to support and defend the Constitution of the United States of America in its parts and in its totality, that in taking an oath as to recognize article I, section 1, I did so with the full knowledge that the ultimate oathtaking in the office required me, as it did, and as it has twice subsequently, to protect and defend the Constitution in all of its parts.

Senator BAYH. I salute you for reaffirming your support for what I think would be a normal oath given a judicial officer. But the matter that I thought we ought to lay to rest here, without trying to verify the reality of whether that was a conservative or a liberal effort in 1958-I have heard both sides argued-rather than try to put the record straight right now with you going on the Court, whether you think the last part of that is not a matter of some concern, in which we perhaps ought to redefine what we mean when we say, "not to participate knowingly in any decision designed to alter any laws passed by the Congress?"

Now, if the Congress of the United States comes up with an unconstitutional law, it seems to me whether you call it altering or ruling it unconstitutional, that is a pretty strict responsibility. Am I in error in suggesting that?

Judge CARSWELL. Is that your question?

Senator BAYн. Yes.

Judge CARSWELL. No; I don't think you would be in error in suggesting that at all.

Senator BAYH. You would suggest that perhaps at least part of that oath would not be appropriate right now?

Judge CARSWELL. Without any doubt, I think that a Justice of the Supreme Court of the United States has an obligation to declare unconstitutional a law that he finds to be so under the Constitution. Senator BAYH. Thank you. I won't pursue that.

The CHAIRMAN. I want to give the facts about the oath.

Senator BAYH. I think all interested parties ought to be heard. The CHAIRMAN. Senator O'Mahoney and Senator Hennings were opposing the Jenner bill, which was aimed at the jurisdiction of the Supreme Court in subversive matters. Now, the record shows that in a committee meeting, Senator O'Mahoney dictated this oath and Senator O'Mahoney-the committee lost a quorum and couldn't vote. Senator O'Mahoney and Senator Hennings and others requested me, as chairman, to ask or to require any nominee to subscribe to that oath. In fact, we had requests from other members of the Judiciary Committee that that be done. And that oath was propounded to every nominee that year.

I think Judge Carswell was the first.

I remember that there was an appointment to the judiciary from Alaska and one from Hawaii, and I was instructed by the committee, since these nominees were not coming here for hearing, that the oath be mailed and that they bs required to sign it before the committee would act.

Now, as far as Judge Carswell was concerned, and all other nominees, my judgment is that none of them would have been cleared by the Judiciary Committee unless they had subscribed to that oath. It