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NOMINATION OF GEORGE HARROLD CARSWELL

WEDNESDAY, JANUARY 28, 1970

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The committee met, pursuant to recess, at 10:25 a.m. in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, McClellan, Ervin, Kennedy, Bayh, Burdick, Hruska, Fong, Scott, Thurmond, Cook, and Griffin.

Also present: John H. Holloman, chief counsel, Peter M. Stockett, and Francis C. Rosenberger.

The CHAIRMAN. The committee will come to order. Senator Fong.

Senator Fong. Judge Carswell, since 1959, when Hawaii was admitted into the Union, Hawaii has supplanted Florida as the most southerly State in the Union. So as one southerner to another, I would like to commend you on your nomination. [Laughter.]

TESTIMONY OF HON. GEORGE HARROLD CARSWELL, NOMINEE

TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

Judge CARSWELL. Thank you, sir.

Senator Fong. I have listened to the questions put to you and your answers to them and I congratulate you on the candor and frankness of your answers. Up to now, I am satisfied that the answers you have given satisfy me that you are worthy of confirmation.

Judge CARSWELL. I appreciate that very much, Senator.

Senator Fong. I have very few questions to ask you, except again to ask you whether deep down in your heart you feel any prejudice, any bias against any individual because of race, color or creed?

Judge CARSWELL. Absolutely not.

Senator Fong. And you feel that you can be a fair and impartial judge and that racial feelings will not enter into the decisions in your duties as an Associate Justice?

Judge CARSWELL. I am positive of that, Senator.
Senator Fong. Thank you very much, sir.
The CHAIRMAN. Senator Thurmond.
Senator THURMOND. Thank you, Mr. Chairman.

Judge Carswell, I would like to congratulate you upon your appointment to the Supreme Court, and I would also like to congratulate President Nixon upon selecting you to fill this high position. I feel that at your age, you will be on the Court for a long time and will render great service to our Nation. You have a reputation for being a man of unquestioned integrity, impeccable character, a person of outstanding ability, of being a legal scholar, a studious worker. It is my judgment that you will perform a magnificent service to the Supreme Court.

I believe you graduated from Duke University ?
Judge CARSWELL. Yes, sir.

Senator THURMOND. And after that, you attended the University of Georgia Law School!

Judge CARSWELL. Briefly until Pearl Harbor caused the closing down of law schools generally.

Senator THURMOND. Then you completed your law degree at Mercer University?

Judge ČARSWELL. That is correct.

Senator THURMOND. There was an interim period when you were out of school, according to the biography, I believe-you were in service from 1942 until 1945 ?

Judge CARSWELL. That is correct, Senator.
Senator THURMOND. In the Navy in World War II ?
Judge CARSWELL. Yes, sir.

Senator THURMOND. And that accounts for the period after you attended the University of Georgia?

Judge CARSWELL. Yes, sir.

Senator THURMOND. I believe the record shows that you were appointed U.S. attorney by President Eisenhower, then appointed as district judge at the age of 34, probably, the youngest in the Nation.

Judge CARSWELL. 38, Senator.
Senator THURMOND. Was it 38 ?
Judge CARSWELL. Yes, sir.

Senator THURMOND. You were appointed 'U.S, attorney at 34, I believe.

Judge CARSWELL. 33.

Senator THURMOND. And U.S. district judge at 38? Then circuit judge. So you have served in all echelons of the Federal judiciary up to this point and your appointment to the Supreme Court would naturally be the next step if you are elevated, is that correct?

Judge CARSWELL. Yes, sir, that would be an accurate statement.

Senator THURMOXD. There has been a good deal said about balancing the Court. I think the public generally feels that there should be more balance on the Court, and President Nixon says there should be more balance on the Court. I was not surprised that he selected a person who has a reputation of having a conservative philosophy, because you cannot bring a balance to the Court unless that were done. I realize that some who do not favor such a policy would be opposed to you for that reason.

President Nixon 'has also stated publicly that he favored a judge who would interpret the law of the Constitution and not attempt to rewrite it. He has also said he favors a strict constructionist. And he evidently feels that you possess the qualities to carry into effect those thoughts. There is nothing wrong with this; it is perfectly proper. If a President wishes to change the complexion of the Court, that is the only way to do it. I was pleased that the American Bar Association, in their letter to Senator Eastland, our chairman, 'stated that you are a man of integrity and judicial temperament and possessed of professional competence and unanimously recommended you as being qualified for the Supreme Court.

Now, as to your decisions, I shall not dwell at length on them. I want to say that, in looking at these decisions, it appears that you demonstrate an ability on your part to single out the issues in the case, to bring together the facts and applicable law, and succinctly state the conclusion with brevity and exactness. This style of writing judicial opinions is somewhat unique today, for the opinions of many of our judges are too long and superfluous. This style of legal writing indicates that you are capable of exactness in considering and interpreting a question of law. This ability certainly commends you to the position for which you have been selected.

There is nothing in your record that I have found that shows you do not believe in equality and fair treatment to all. There are some groups in this country who will take the position that possibly you do not beliere in equality because you have not decided every case in their favor. There are some groups in this country who want a judge to go with them on every case, right or wrong. All a judge can do and should do is to hand down the decision in accordance with the law and the facts in the case. There is nothing in the record that I have found that indicates that you have done otherwise.

I was interested in reading an article which appeared in the paper, by Mr. Fred P. Graham, of the New York Times, entitled “Carswell's Credo Is Restraint."

On the question there of desegregation, the article stated this: "And when precedents”-speaking of civil rights precedents—“have existed, he has struck down segregation in crisp, forthright opinions. In 1965, he declared that the barbershop in Tallahassee's Duval Hotel had to serve Negroes under the public accommodations provision of the Civil Rights Act of 1964. He brushed aside a barber's assertion}-someone said that was your barber; I don't know whether it was or not, but it doesn't make any difference—“a barber's assertion that he was not covered because 95 percent of the customers were local people and not guests in the hotel.”

From a reading of that, it is clear Judge Carswell observed that relative percentage of local as well as transient customers may not be used as criteria to determine coverage.

In 1960, when Tallahassee Negroes sued to desegregate the counters, waiting rooms and restrooms in the city-owned airport, he did not hesitate to order desegregation.

Are those statements correct, Judge Carswell?

Judge CARSWELL. Yes, sir that is a correct statement of the holdings in those cases; yes, sir.

Senator THURMOND. This was written by Mr. Graham for the New York Times, I believe.

Judge CARSWELL. That is a correct analysis of the cases.

Senator THURMOND. Now, quoting further from this article, it says:

Tom Harris, an official of the American Federation of Labor and Congress of Industrial Organizations, who led the successful attack against Judge Háynsworth, said today that Judge Carswell doesn't appear to have a significant record on labor cases. He says the AFL-CIO had no plans at present to oppose him. The few labor opinions that Judge Carswell has written reflect his reluctance to use judicial power and his tendency not to extend the judiciary's power.

I was pleased to see that statement that Mr. Graham wrote about you, about extending judicial power and your reluctance to use judicial power and tendency not to extend the judiciary power. I think that is one common complaint the public in this country have today, about judges extending the judiciary power.

On the matter of injunctions, I was impressed with this statement :

It is my view that the injunctive power of the court should never be invoked lightly, nor should it be converted into a mere ministerial function triggered automatically upon the finding of an infraction of the law.

Mr. Graham quotes further on the question of established law. He quotes this:

Judge Carswell's opinions tend to be bloodless documents, setting out the facts and the precedents, then briskly coming to a conclusion that is said to be within the precedents. He is not given to broad statements of his philosophy, for his creed at this point in his career seems to have been summed up in one statement from an opinion he wrote shortly after he became a judge in 1958: "Established law with its imperfections must nonetheless be applied as it is and not on the predilections of the court."

All of these seem to be sound principles, and I was impressed with them. From your record as I have been able to ascertain it, you believe in deciding a case on the law and the facts and that you would follow the Constitution and uphold the Constitution, that you would be fair and just to all, discriminate against none, and show favoritism to none. Is that your philosophy?

Judge CARSWELL. I certainly would so seek to do, Senator Thurmond.

Senator THURMOND. I shall be pleased to support your confirmation.
Thank you very much, Mr. Chairman.
Senator KENNEDY (presiding). Senator Cook.

Senator Cook. Judge Carswell, I think it is interesting to note some of the reports of the newspapers of the last few days, because one of the problems that we face by the way, I might say that most of these fellows sitting at the table that are with newspapers should have become your friend yesterday when you discussed the fact that you worked for the Macon newspaper and were paid very, very little. I think most of them in this room probably feel the same way about it.

But one of the things I think we fail to do when we analyze a nominee and when we seek to promote a particular thing, I think we fail to look at history. In regard to history and in regard to your 1948 speech, I would like to read into the record some history, and I hope that I can read before we are through with these hearings some more statements by other individuals who are now members of the Supreme Court, things that have been said about them. Then I thing we can evaluate whether history can in fact change a person and whether history can in fact improve one's attitude toward the social problems of this Nation.

In 1937, Senator Hugo L. Black from Alabama was nominated to be Associate Justice of the Supreme Court of the United States by President Franklin Delano Roosevelt. Both at the time of his nomination in August of 1937 and following his confirmation in the fall of

that year, it was urged that Justice Black should be refused confirmation because while in Alabama politics, he had been a member of the Ku Klux Klan. These charges were summarized by Senator Copeland of New York in a speech that he delivered on the floor of the Senate. For those who would like to read that entire speech, it is in 81st Congressional Record at pages 9068 to 9069. But let me quote some of the things that were said on that occasion. This is what Senator Copeland said:

Does the leopard change his spots? Will Mr. Justice Black be any different than candidate Black, who, according to the Mobile Register of August 15, 1926, backed by the Klan, had a walk away in his race to the Senatorial nomination ?

Likewise, the New York World said: With Alabama's most powerful political organization, the Klan, backing him, Hugo L. Black seems to have won the Senate nomination beyond a reasonable doubt. In Black, the Alabama Klan has a loyal and devoted friend.

The New York Times for August 9, 1926, said "Black has devoted part of his late campaigning to voicing opposition to Governor Al Smith in an effort to hold his part of the Klan's support.”

The Senator went on to say: From the time he came into the Senate, Mr. Black has been a leader against all efforts to pass an anti-lynching bill. Within two weeks, he moved to table my own motion to add this rider to a pending bill.

Following Justice Black's confirmation, amid public criticism triggered by a series of articles in the Pittsburgh Post-Gazette, Justice Black made a national radio speech on October 1, 1937, in which he admitted that he had at one time been a member of the Klan, but vigorously denied that he had ever subscribed to any of the principles of the Klan.

Now, the point I am trying to make, Judge, is that I am afraid when many of the people write articles and when many of the people make statements, they do in fact forget history. And I would hope that before these hearings are over, I can give you statements made by other members who are now on the Supreme Court of the United States that will be far, far more shocking than the remarks that have been made about Justice Hugo L. Black. And I would suggest that for many of those who will testify, who will testify against your nomination, they had better prepare themselves to admit that man in fact, in a changing social atmosphere, not only does logically and honestly change his mind, but he has to change his mind and he has to change it based on our society. I must admit that, and I have used it quite frequently, it is a very good thing they do, because we have had to pull an awful lot of people kicking and screaming into the twentieth century:

Justice Carswell, there was some conversation yesterday about the case of Ida Phillips v. The Martin Marietta Corporation. You did not hear that case, did you !

Judge CARSWELL. I don't recall the particular case at the moment, Senator. Could you give me a little bit better reading on it?

Senator Cook. It was a case that was heard before Judge—is it Gewin?

Judge CARSWELL. Judge Gewin.

Senator Cook. It says "The petition for rehearing is denied and the Court having been polled at the request of one of the members

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