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of the Court and a majority of the circuit judges who are in regular active service not having voted in favor of it." This was pursuant to rule 35 of the Federal Rules of Appellate procedure, Local Fifth Circut, rule 12.

The rehearing en banc was also denied.

Now, in this, when the judges were polled, did all of the judges receive an entire copy of the record? If you recall ?

Judge CARSWELL. Senator Cook, I just don't know in that particular instance. I would assume that the normal procedure was followed and the workings, inner workings of the court in this regard were just a pure administrative matter of mailing papers back and forth between the officers. The judges lived in different cities. The routine procedure in this is to send around what we call a pink slip procedure, calling attention to the fact that there may be a desire to reexamine an opinion. That would be a request for an en banc hearing. It does not necessarily mean that the opinion is under attack or that the judge requesting an en banc is absolutely committed and has made up his mind that it is to be changed or wants it changed, or that he even wants to dissent about it.

It is a mechanical procedure, sending out a notice to fellow judges on the bench, something as a warning to the effect that something about this disturbs me, I want to hear a little more about it, want to know something more about it. It may mean that this is a terrible opinion and I certainly don't want to be associated with it and I wash my hands of it, that sort of thing. That doesn't necessarily follow in

every instance. Senator Bayh. Would the Senator yield just for procedure here, please?

Senator COOK. Yes.

Senator Bayh. In other words, it is possible for a judge who votes in favor of a case or to sustain a position to ask for an en banc ruling, which could only have the effect of overruling?

Judge CARSWELL. No, Senator; that isn't what I said and that is not what I meant to say and that isn't the import of my words at all. What I meant and repeat is this any judge sitting on a large court, and by the way, I am a member of the largest Constitutional court in the world, they tell me. We have something like 15 judges now. The judges sit in panels of three, the case we are talking about here is a case on which I did not sit on the panel.

Senator Cook. You did not?

Senator Bayh. The case I called to your attention was brought to my attention personally, which I brought to your attention 2 days ago, so you were warned it was going to come up. Judge CARSWELL. Certainly.

I would like to complete my remark to this extent and only to this extent: A judge who votes for an en banc hearing is not voting to overturn a panel decision if it has been published. It merely means, only means, I want to take a better look at this thing, let's have another hearing on it. There is something about it obviously disturbing. Maybe some of the language, maybe some of the dicta that had nothing to do with the crucial issue, but it may come out later in a confusing manner in other instances; it may be cited as a precedent in a peculiar context. So this is a standard judicial procedure that I am sure is followed by

every court in the country. I don't think there is a judge in the country who has ever approached a hearing or a vote for an en banc hearing on any other basis. To do so is to commit yourself before you ever have the hearing.

Certainly I never voted for an en banc hearing with a firm conviction that I was going to go the other way. Although sometimes, you may be sure you are in sharp disagreement with the opinion. It might be that, but isn't necessarily that. That is all I am saying.

Senator BayH. I appreciate that.

Senator Cook. The problem in this case involves a woman with two children and the Martin Marietta Corp., who had a rule that she could not be employed if she had some children. And you have been accused of being against women, which is an odd sort of thing to be said about men.

But the point I am trying to make is you did not sit on this case at all? You did not hear it?

Judge CARSWELL. I recall the case now that you have given me the facts and the context of it. Yes, this is the one Senator Bayh mentioned yesterday:

I was not on the three judge panel that heard the arguments in that case. Also, there were two of those judges who saw it one way under the particular facts of that particular case and wrote an opinion, one judge dissenting and asking for an en banc, again, calling upon his brother judges, of whom there are a dozen others, to take a look at it and see whether you think it should be overturned or not; Is there something here so bad about this opinion that you think it should definitely be overturned ? Based upon those facts and upon those conditions, then the judge voted and I voted to sustain the two judges who had voted as they did; that is to say, I voted that it wasn't necessary, as far as I was concerned, to have an en banc hearing.

Senator Cook. But this does not preclude this case from being appealed?

Judge CARSWELL. Certainly it doesn't.

Senator Cook. This is the point I wanted to make in regard to the comment.

Judge CARSWELL. You mean appealed to the Supreme Court?
Senator Cook. That is correct.
Judge CARSWELL. Why, certainly not.
Senator Cook. Mr. Chairman, I believe that is all.
Senator ERVIN (presiding). Senator Griffin ?
Senator GRIFFIN. Has Senator Scott had an opportunity ?

Senator Scott. If Senator Griffin doesn't mind, I have only about two questions. Is that all right?

Senator GRIFFIN. Certainly. Senator Cook. If the Senator would yield just a minute I would like to put this case in the record to show Judge Carswell's participation in it. It is listed as 416 Feb. 2nd, page 1257. It is the case of Ida Phillips v. Martin Marietta.

(The case referred to appears in the appendix.)

Senator SCOTT. Judge Carswell, yesterday a question was asked as to whether your decisions would be in support of the Constitution. I take it that includes the Bill of Rights. While I was here, I don't recall whether that question was ever broadened to go into that matter of your philosophy a little more. In addition to your answer, that was entirely satisfactory to me, that you would indeed support the Constitution and your concept of the construction of it, may I ask if that also extends to support of the precedents of the Supreme Court so far as they are applicable and to other precedents of other courts where they have become precedents by virtue of not having been carried through to the Court of last resort?

40-399—70

Judge CARSWELL. My answer to that would be yes, Senator. This is what I was trying to say yesterday. Perhaps I didn't get it over as clearly as I would like to in one regard. I paraphrased what now Mr. Justice Stewart said when he was before this committee in a similar role. He was asked a similar question, and he responded, and I am paraphrasing as I read it at the time in the press. I wasn't here. I haven't looked at the transcript of the record, for that matter. But in any event, he made a statement in his context to the effect that no, he didn't want any Senator there to vote for his confirmation with the idea that he was going on to the Supreme Court to overturn all the precedents of the Court and to rewrite the Constitution. I would answer you in that same manner.

Senator SCOTT. Yet, of course, there are times and conditions, such as in the famous ancient case of McNaughton, where subsequent court interpretation may quite properly, in my view, bring about a different approach to this question of insanity, for example, that was involved in that case.

Judge CARSWELL. No question, that and many other areas.

Senator SCOTT. So the Court is indeed a growing and expanding body.

Judge CARSWELL. It is indeed. The law is a movement, not a monument.

Senator Scott. Something has been said about whether or not judges are bound by stare decisis. That is a very broad question, but would you care to comment on it, what you think of stare decisis?

Judge CARSWELL. I think what I said yesterday within the context of strict construction-loose construction, and reading the scale from one to the other. There is a little bit of the same play here, Senator Scott.

We start, of course, with the plain words of the Constitution, with the precedents that are imprinted upon them by the decisions, by the reading we get from the Federalist Papers and all the history that surrounded the adoption of that great instrument. We take the cases that have been decided throughout the courts, we put them all in. In the human mind—and judges are human, they are not computers, they fall in upon the mind for a decision based upon the particular facts in that case or controversy in that regard. This is where I referred to tract entitled “The Nature of the Judicial Process."

Senator Scott. Cardozo?

Judge CARSWELL. Justice Cardozo. It is a small tract, not any great tome, but it is a fine, explicit attempt to define what really goes on in a man's mind when he is called upon to make these decisions.

Am I responsive? I hope to be.

Senator Scott. Not only responsive, but I thought your answer may have shocked some in the audience by establishing that a southerner can also be a scholar. I was appreciative of that.

Judge CARSWELL. I apologize if I caused any problem.

Senator Scott. One other question. I had expressed some concern in another matter with reference to another judge on the question of following such important landmark precedents as Brown v. the Board of Education. I did not feel that dissents were really justified in the lower courts which appeared to be definitely against that decision when the lower court case again appeared to be on all fours with it. The support of Brown v. the Board of Education as a standing precedent of the Court does not give you any concern, does it?

Judge CARSWELL. No, sir.
Senator SCOTT. That is all I had.

Senator GRIFFIN. Judge Carswell, as the most junior member on the minority side, I find that almost all of the questions I had intended to ask, have already been asked.

Judge CARSWELL. Senator, that has been my role on my large court. I sympathize with you.

Senator GRIFFIN. I do want to say that I have been very pleased and impressed by your responses. I have had an opportunity to review the financial information you furnished to the committee. And I have had an opportunity to read a few, but not all, of your opinions as a judge. Frankly, I must register my disagreement with those who criticize your opinions by comparing them to a plumber's manual or by indicating concern because your opinions are concise and to the point.

While some Senators may be unable to comprehend that wisdom and sound judgment can be expressed succinctly and briefly, I want to assure you that there are other Senators who think it can be done, and who admire greatly those who have the ability to do it.

You have made an impressive appearance before the committee to those who, without looking at your record very carefully or listening to your answers, seek to dismiss your nomination by using such words as "mediocre," all I can say is that so far as I have been able to determine, I believe the Nation could use a lot more of your kind of "mediocrity”; obviously that is intended as a high compliment.

I believe you have demonstrated before this committee that you are a scholar of law; and that is demonstrated by your opinions. I say that even though I would not agree with each and every one of them.

There is one area of concern which has not been touched on as yet that I would like your views on. There was some reference made yesterday in a discussion with Senator Hart about the doctrine of separation of powers. At that time you made it clear that you thought there were limits concerning the extent to which the Supreme Court should infringe on the powers of the legislative branch.

There has been some concern on my part and on the part of some other Senators and may I say on the part of justices of the Supreme Court and others over the years that from time to time, sitting justices have not only perhaps infringed on the legislative branch but have involved themselves in the activities, functions, and decisions of the executive branch. Justice Stone, for example, was called upon several times to perform what were essentially functions of the executive branch. As is well known, Chief Justice Warren served as head of the Warren Commission to investigate the slaying of President Kennedy. And there has been a number of other instances from time to time when Presidents have called on the members of the judiciary to perform what are essentially executive functions and make executive decision.

As you know, it was alleged that Mr. Justice Fortas participated so actively in executive branch decisions that it got to the point where it was almost a day to day advisory function, very similar to the function the Attorney General might perform. Would you give us your views concerning the appropriate roles members of the Supreme Court might play in extra-judicial activity?

Judge ČARSWELL. I certainly am in accord with the view that the members of the Supreme Court have quite enough to do, I think, and have the constitutional responsibility to attend to their affairs under the Constitution in the judicial branch of the Government without chores or responsibilites in the sensitive area of executive decision. I don't make this, however, with any criticism of anyone who has been called upon by any President to perform any service that might not be strictly within the bounds, the limits of the work of the Court if it became of any national significance. I certainly have no thought or idea that this President who has nominated me would ever call upon me to do any such thing. I only met the man one time and shook his hand in 1954.

Senator GRIFFIN. Would it put you in a difficult position however, if he should call upon you at some time?

Judge CARSWELL. No, sir, I don't think this would put me in a difficult position with this President or any other President. If the nature of the request were such that-can't conceive what it would be. But certainly the President of the United States, I think, must, have the overall responsibility; if some statement needed to be made, something of this nature, something of a purely noncontroversial matter. Certainly it should be in the field of the law. I can't conceive of any specific-but say an eleemosynary type of thing. Something of this nature just happen to come to my mind. Certainly a judge should be a good citizen. He certainly shouldn't be a campaigner or politician. He certainly shouldn't be an adviser to Presidents on matters of crucial decision.

Senator GRIFFIN. Should or shouldn't?

Judge CARSWELL. Should not. I get into a little trouble. This is southerner's problem. We say shouldn't when we mean should not. Should not be an adviser in the sense that you are referring. I subscribe fully to that thought and that is my view. It would certainly be a remote possibility that it would occur.

Senator GRIFFIN. I appreciate that. The doctrine of separation of powers is a very important part of our Government, and I think those appointed to the Supreme Court should exercise great restraint in the temptation that might be offered from time to time to breach that line.

I have no further questions, Mr. Chairman.
The CHAIRMAN (presiding). Senator Burdick.
Senator BURDICK. Mr. Chairman.
I also welcome you to the committee.

We don't enjoy the privilege of the separation of duties here in the Senate. We have more than our share of duties and as a result I missed the first part of this session.

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