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was Senator O'Mahoney's idea and, as I recall, it was supported by Senator Hennings and others.
Those are the facts about the oath. This gentleman happened to be the first one, and it was requested, it was required of every other nominee that year. I am informed of that by the staff, who have checked.
Senator Bayu. I appreciate that explanation. I take the chairman's word and am pleased to have the record made complete. The previous public record, which is available to us, shows the oath being addressed to the nominee and Mr. Carswell saying, "I do,” and the chairman saying, “Is there anything else," and Senator Dirksen saying, “I think that is all," and the chairman saying, “Thank you very much."
And that was the end of the hearing. So I think it is important. I admit to a legislative prejudice. Maybe that is bad, in front of a prospective Supreme Court Judge, but I would like to think the Congress has infinite wisdom. Under our tripartite form of government, that has not always been the case, and I feel that it is important that we not have a judge who is timorous in the responsibility he has to knock down a law which Congress may pass with all good intentions, which is not, indeed, within the province of the Constitution.
You said you would not have this hesitancy, and that is all I want to get into the record.
Do you have anything you want to add to this? I do not want to muddy the record, but I wanted to clear that up. I think we have pretty well done it.
Judge CARSWELL. If you're satisfied with the answer. If not, I can only say again that I would not have any hesitancy, if I felt a law were unconstitutional, to so declare.
The CHAIRMAN. It would be your duty, would it not?
Senator Bays. That is why I asked the question. There seemed a real inconsistency between that oath—and that has been explained now and the duties, as I see it, of any judge.
Now, let me ask one question that I mentioned to you yesterday, in passing. I have still not had the opportunity to look into it as fully as perhaps we should, but I mentioned this matter which has been of some significant concern to various women's rights organizations. I have subsequently found out that that case is Phillips v. Martin Mariett. +16 Fed. 2d 1257. which was a case of last October, in which, as I recall, the issue was whether an employer refusing to hire mothers that had preschool children was a violation of 42 United States Code 703, which made it incumbent upon everyone to treat women equally.
Now, in that case, when a petition was made for review by the entire panel, as I recall, you voted no, which has given some people the impression that you are not in favor of equal rights for women.
Would you care to address yourself to that question?
Judge ČARSWELL. Senator, I did not write that opinion of the court. There was a dissent, as I recall. It is improper for me to comment on any of the particulars about the facts of that particular case. I simply cannot do it, with no attempt to be evasive about this at all. I simply cannot answer it, because here, again, we would get into a situation where I simply couldn't decide cases under this particular statute.
The record shows how the vote went; how each judge on our court voted, I suppose, is recorded. It shows how my vote is recorded on the petition en banc. I do not have immediately the case before me; I was not on that particular panel. You have stated what my vote was and I assume it is stated correctly. I have no reason to question it at all.
It speaks for itself, the opinion there, and the dissenters speak for themselves. Judges, you know, disagree among themselves sometimes, and obviously there was some disagreement here within the court itself. That is another reason why it would be highly improper for me to delve into this area.
Senator Baru. Fine. I think you can also see why it would be highly proper for this committee to make certain that we are not putting on the bench a man who, for some reason or other, feels that women should be not treated equally with men. Some people have this feeling without dealing with the specifics of a case.
Inasmuch as a moment ago you dealt with civil rights in somewhat of a black versus white situation, is it also fair to say that you believe the Code of the United States relative to equal rights for women should be enforced ?
Judge CARSWELL. The law of the land should be enforced, yes, sir.
Senator Baył. I just will read one section of the law specifically referred to in the case. It says that it shall be an unlawful employment practice for an employer to fail to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or type of employment because of race, creed, color, sex, or national origin.
Now, let me, if I may, deal with this question of ethics, because I think it is important that we let the country know that we are searching for a higher ethical standard. As I said, I hope we can apply this to judges and apply this to Members of Congress, myself included.
It is fair to say, is it not, Judge Carswell, that after having heard your recitation of the property that you own, you have not sat on a case in which you had a direct pecuniary interest?
Judge CARSWELL. That is certainly true.
Senator BAYh. You have mentioned your wife's interest in this was it Elberta Crate? Have you ever sat on any cases involving Elberta Crate!
Judge CARSWELL. No.
Senator Bayır. Or any other pecuniary interests involving your wife?
Judge CARSWELL. No.
Senator BAYH. Have you sat on any cases involving major customers of Elberta Crate?
Judge CARSWELL. I didn't even know who the major customers of Elberta Crate are. We have a close family, but they don't tell me all their business.
Senator BAYH. "In the controversy surrounding the previous nominee and one Supreme Court Justice there has been a great deal of controversy surrounding the issue of standards of ethical conduct for a judge. I would like to explore this area and briefly get your feeling, if you feel you can do this without dealing with the specific factor or matter of a case.
The general law of the land, as you know, is cited in 28 United States Code 455 which, just to refresh my memory, if not yours, says any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or attorney as to render it improper in his opinion for him to sit on the trial, appeal, or other proceeding therein.
The key question is "substantial interest." There is no specific definition in the law of the land. There have been several efforts to do this, and we hope we can be successful finally. The jurisdictions of the United States are not unanimous. The fourth and the fifth circuits have different standards of what a substantial interest shall mean, and the majority of the opinions, as Judge Frank pointed out, when he testified here in support of Judge Haynsworth, is another matter.
Would vou care to give this committee the benefit of your thinking relative to "substantial interest” and how you think it should be defined?
Should it be defined pursuant to the fourth circuit, the fifth circuit, or the preponderance of circuits which say that if you have any interest, you should disqualify yourself!
Judge CARSWELL. That makes it necessary to respond in two ways. No. 1, there is an opinion of the fifth circuit that speaks to this point. In the case of Kannear-Weed-I can give you the citation—it attempts to define in specific terms what "substantial interest” means.
This opinion was rendered by the Court before I participated in it. I was a district judge when it came down. I am aware and have had many discussions, many times, with many judges, across this land about this very matter.
This was one of the major discussions at the National Judicial Conference that was held here in Washington last June 10, when I was district judge representative for the fifth circuit we explored this whole area.
They came forth with that resolution that was then adopted. It was adopted into this general area. I voted for that resolution as it was then adopted in June of 1969. Subsequently, it had some modification placed upon it in September of 1969.
I am aware of the fact that Chief Justice Traynor of the California Supreme Court has a committee of the bar that are working very diligently at this to come to grips with it. This is a most difficult area, as to what is the interest that should be there, what are the
I personally, Senator, can tell you this, and put it in this record, concerning the areas of compensation of judges. Perhaps I am volunteering, but I would just answer, perhaps speak to both of them at the same time. I have never received
outside activities of any nature.
Now, there are many competent judges who. I think, have good, valid reasons to lecture at law schools. There is a hazard, perhaps, here in breaking the tie between the academic world and the bench and there ought to be, perhaps, some reasonable fee under those circumstances. I don't attempt to pass judgment upon whatever is determined there.
It is simply that in my position, I have not accepted and will not accept any fees for outside services, period.
Senator Bayh. I have another question I would like you to direct yourself to. I am glad to have your personal standards on the record.
You know now that you are going to be on the Supreme Court if this nomination is confirmed, which I think it will be.
Judge CARSWELL. Nice of you to tell me.
Senator Bayh. Is your personal standard going to be the standard that you hold other judges accountable to? Is it going to be the fifth circuit's standard, which says it is all right to own some stock?
Judge CARSWELL. I am going to go by Harrold Carswell's standard, and I don't think you can beat it. If you don't have any, don't accept fees for outside services, there can be no controversy about it.
If there is any question of conflict of interest in the judge's mind or anything to make somebody think he is hiding or his mind is turned or pushed in a certain way, he shouldn't sit on the case. I never have, and I don't intend to in the future.
I intend to follow the same course of conduct I have followed for the last 12 years, regardless of what someone writes as a code of ethics for the fraternity as a group.
Senator BAYH. The reason I bring this matter to your attention, and would like to proceed just a bit further on it, is that while you were on the fifth circuit, this Southern Louisiana Gas rate case came before your circuit and two of the judges involved had what, to me, would appear to be significant holdings.
Now, perhaps you could explain—as I recall the case, the court stated that the judges were not disqualified—I don't know whether this was a message over the telephone that was later made public, but the court later stated that the judges were not disqualified because of the interests that they had, but that they automatically withdrew themselves voluntarily from the case.
Would you help to define that for us, please?
Judge CARSWELL. Senator, it wasn't a telephone message, it was a printed opinion about that, a per curiam opinion, consisting of two fellow judges and me. There were three of us called to sit on this case.
Incidentally, it was once printed that I refused to disclose my stockholdings, I didn't refuse; it never occurred to me to tell anybody that I didn't have any. That was the fact about that.
But after this matter arose, the two judges of that panel made disclosure of their holdings in these two companies. This was a per curiam opinion, where we disqualified the entire panel. I disqualified myself because immediately following the first couple of hours of hearings, we had had a previous discussion about the case. This is just exactly in the area that I was discussing with you earlier. I felt it would be improper for me to continue even if they were not because then it might be said, or someone might think, that I had in turn gotten myself involved into some of their potential or possible, or apparent, disqualification.
Out of an abundance of caution, this action was taken by each of those judges. The opinion speaks for itself; it is a per curiam opinion. It speaks for all three of us. I cannot comment any more on it other than that. It would be improper to do so.
Senator Bayh. I want to refresh my memory, because I am sure you, having dealt personally with that case, are better qualified to testify to it than I. As I recall, the opinion stated that although we do not feel disqualified, we voluntarily withdraw ourselves from the case.
Now, is my interpretation erroneous ? Judge CARSWELL. Senator, I cannot attempt to interpret an opinion of the court of which we were a part. It will have to speak for itself.
Senator BAYH. Fine.
Is it your judgment that if a person has any substantial interest, he should withdraw himself from the case ?
Judge CARSWELL. That is a matter of statute, and certainly he should. I call that a minimal statute.
Senator Bayh. Is any interest a substantial interest? Judge CARSWELL. That is a matter of judgment, and upon the facts and circumstances of each case under the law.
Senator Bayu. That is right. That is exactly where we get into the fact that the greatest preponderance of jurisdiction in this country, according to what Judge Frank said, is if you have any interest at all, you disqualify yourself; the fifth circuit says if you have a relatively small interest in a large firm, you need not disqualify; and the fourth circuit says it is all right if you make this public.
What I want to know is what is the standard going to be on the Court?
Judge CARSWELL. I respectfully have to not answer that. Obviously your suggestion is that there is a conflict in the circuits.
Senator BAYH. I think there is.
Judge CARSWELL. Then, inevitably, that can only be resolved by the Supreme Court of the United States, and quite clearly, it is improper for me to express an opinion about that specific issue.
Senator BAYH. And, quite obviously, it would be my responsibility to find out what your opinion is on this.
Judge CARSWELL. I have given you my personal opinion. I cannot give you my standing on cases in court that should be resolved.
Senator BAYH. I realize that there are bound to be lines that you cannot cross over, but I think this a legitimate area of interest for those of us who want to try to increase that standard.
Are you conversant with the various canons of ethics that deal with impropriety and appearance of impropriety—canons 4, 13, 24, 29, 33, and 34? If you want me to read excerpts from them, I will, but I think you are certainly conversant with them.
Judge CARSWELL. Yes, sir.
Senator Bayh. In trying to reach a determination of what is ethical conduct and what is not, do you believe that these legal canons of ethics have received consideration by the judiciary?
Let me just read a couple of things that concern me, because in the matter which we struggled through earlier, the Haynsworth matter, frankly, I was never convinced in my own mind that Judge Haynsworth got involved in any impropriety, but there was a great appearance of impropriety.
We are trying to give the appearance of justice in our courts. That is why this canon says that a judge's official conduct should be free from impropriety and from appearance of impropriety. So it talks in 13 about kinship of influence and-we are talking about impro