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I was interested in what Senator Scott had to say in asking you about the stare decisis, I know that yesterday you said the Supreme Court was not a continuing constitutional convention. To what extent has the decision been made to form a firm body of law, in your opinion? A firm body of the law?

Judge CARSWELL. Will you repeat your question? I am not sure I understand.

Senator BURDICK. To what extent, based upon the Constitution and based upon the decisions rendered upon the Constitution, has the law been firmly established in your opinion, so that in certain areas, such as in the Brown case and other cases, this is the rule of law today?

Judge CaRSWELL. I am hesitating only because that obviously is a very difficult question to answer. I really could answer it best, I believe, by repeating what I said yesterday, and I think it pretty well covers it.

There is certainly an area, inevitably, where a judge, no matter how much he knows that he is not sitting for the purpose of rewriting the Constitution, must decide the case. In individual cases and controversies that arise under the individual facts and circumstances of a particular case, there just may well be, and frequently is, Senator Burdick, a gap in the statutes, a hiatus of sorts, where the judicial function and the judicial process inevitably requires the gap to be filled, because action has to be taken and rights determined. It is a new situation. It is a different situation. It is a many splendored thing in this regard. Therefore, I cannot unequivocably, flatly respond by saying that this is forever more established and nailed to the wall as the law of the land and we will never look at it again. And this is not. It is open to inspection.

The Nation itself is in such a process of change, constant change. We all, not only people change, but conditions change. Our society itself has absolutely changed in some aspects since the adoption of the Constitution. Yet it has been a marvelous instrument that has allowed us to live and to breathe under it and to make progress under it. Hopefully, we will continue this progress for another 200 years.

I am not trying to give you a broad speech on this subject because I don't know any other way to answer it than that. I hope I am being responsive.

Senator BURDICK. Do you give any particular weight to the type of decisions, let us say unanimous decision as against the 6-3 decision, or a 5-4 decision? Do you give it any quantitative weight?

Judge CARSWELL. I think any judge recognizes that a 5-4 decision isn't quite as solid as a 9-0 in any context. It is the law, it states the law, but we obviously recognize that there is an area of great dissention and controversy on that particular point, whatever it may be. That would be a factor, yes, sir. I think I would have to answer that yes.

Senator BURDICK. In such areas as covered by the Brown decision and some other areas, at the present time, at least, in your opinion, the law is pretty well set in that area.

Judge CARSWELL. I don't think there is any question about it.
Senator BURDICK. That is all.
The CHAIRMAN. Any further questions?

Senator ERVIN. Maybe I could make an observation that might shed some light on when a judge has to fill in what Justice Cardozo

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called the indecisiveness of the law in his little book on the judicial process. When I had the privilege of serving on the North Carolina Supreme Court, we had on one conference two cases for consideration. One involved the will of a virtually illiterate woman who was like Maud's Mother in that her nouns and verbs didn't agree. When she had a verb, she didn't have a subject, and when she had a subject, she didn't have a verb. Justice Denny, one of my colleagues, wrote an opinion clarifying the will, and I wrote a dissent and I maintained that it was a very good will' he had made for the lady but that he made it after her death.

At the same time, I had written an opinion for consideration at the same conference interpreting a provision of our workmen's compensation law. There the legislature had done about like the woman did in writing the will. Where they had a subject, they didn't have a predicate, and where they had a predicate, they didn't have the subject. And I had to ascertain the legislative intent. So I wrote an opinion making clear that which the legislature had made very ambiguous. And since both Judge Denny and myself had tendered opinions in the will case, the court had to vote which one it was going to adopt. So four of them voted to adopt Judge Denny's and three of them voted to adopt mine which made mine the dissenting opinion. I thereupon told Judge Denny that when this conference adjourns, I am going to tack up a sign on your office door.

He said, What are you going to say?
I am going to say, "post mortem wills a specialty.

Then Judge Denny said, If you do that, I am going to tack up a sign on your office door, and my sign is going to say “legislative repair shop now open for business."

The CHAIRMAN. Any further questions?

Senator ERVIN. I have one question somewhat brought to mind by Senator Burdick's question.

I have thought several times of that question myself, as to what decisions you are going to accept as bad ones, the interpretations of the Constitution or the statute? The best rule I have ever found to guide me was one that was stated by Judge Learned Hand. He was speaking at a memorial service for one of his colleagues to the Circuit Court bench of Judge Thomas Swann. He said that Judge Thomas Swann had devised this rule for his own guidance, that he should always accept the previous decision and never overrule it unless he reached the conclusion that the decision was untenable when it was made. And he said Judge Thomas Swann also said that even in cases like that, he was very reluctant to overrule the decision if a very solid foundation of case law had been based on that decision. In that case, he thought it was well to leave it to the legislative power to correct the law.

I think Justice Brandeis entertained that view, because he says it was sometimes better for the law to be settled than for it to be settled right, because a law must have stability. It must have stability if it is going to furnish worthwhile rules for the guidance of the conduct of the people and the conduct of the court.

The CHAIRMAN. Senator Bayh?

Senator BayH. Judge, you have been very patient. I wanted to talk about this en banc opinion again. I don't want to belabor that case. I am unfamiliar with the en banc procedure, never having had the privilege of sitting on the bench. And I don't want to put words in your mouth. But is the effect of an en banc decision in which all of

Judge CARSWELL. En banc decision or en banc request for an en banc hearing?

Senator BAYH. Let's say the effect of the refusal to hear en banc, which I understand was what this was. Is the effect of that to sustain the decision of the panel ?

Judge CARSWELL. On that particular case and those particular facts, that is true.

Senator BAYH. And the interpretation of the particular law in question ?

Judge CARSWELL. Yes, sir; to sustain the majority of the court that rendered that opinion. Although in that particular case, I was not on the panel that wrote the opinion or heard the arguments. I don't disassociate myself from it because I voted with the majority of the court to deny the petition for rehearing. Obviously, if you were disturbed about it, you would have voted to hear some more about it. The majority of the court wasn't that disturbed about it and did not so vote. I didn't mean to leave any other impression with you about that. There is no question about that.

Senator Bayh. Obviously, a person doesn't make that decision lightly. You have a chance to

Judge CARSWELL. Senator, I hope I don't make these decisions lightly in any regard. It is a busy court, extremely busy.

Senator BAYH. I don't want to put too much significance on that particular policy or that particular procedure. That is why I want to make absolutely certain what we are involved in. I brought it to your attention that some concern had been expressed to me earlier when we first visited the day before yesterday. The Senator from Kentucky brings it up again today. I want to make absolutely sure what the effect of that vote up or down was or would be. Judge CARSWELL. Yes, sir.

Senator BAYH. Now, I think I speak for everybody on this committee when we hope to be able to have a chance to vote for you. Yesterday I was assuming you would be confirmed. The big problem is this 1948 statement, which I think you recognized as a problem, because you repudiated it rather unequivocally. Judge CARSWELL. I hope so.

Senator BAYH. Now, I asked you yesterday at what time your thoughts began to change and I think you suggested that this was a sort of process. I thought the answer yesterday was a very good one. I think part of this process causes us to look with a great deal of particularity at each step along the way at which a change might be in evidence. That is why, yesterday, two or three of the members of the committee asked questions rather repeatedly, I think, as I look back over the record, relative to this country club situation. I would like to just make sure where we stand on that.

Judge CARSWELL. All right.

Senator BAYH. Can you repeat very briefly, not to belabor this, but repeat very briefly your involvement in and participation in that club? As I recall, you said a fellow named Smith brought this to your attention. He is the only one you talked to?

The CHAIRMAN. Senator Bayh, we have here Mr. Proctor, who has all the records. I am going to put him on following the judge's testimony.

Senator Bayu. I think that is fine. Now, could we just have this answer.


Judge CARSWELL. Let me get one thing straight about that. I said then and I say now that the only conversation I recall having had with any human being about this incident in 1956 is they wanted money to get a club; $100 was paid. I signed a paper of some sort that designated me as--I don't recall. The papers speak for themselves, whatever it was designated was there. I never attended a meeting with a human being about that matter. That is all there was to it. I recall that I thought, trying to be completely candid, that I had talked to a friend of mine in Tallahassee, whose name is Julian Vareen Smith. There has been some confusion. Somebody else thought it was Julian C. Smith. There are two of them in Tallahassee.

The CHAIRMAN. Do you know both of them?

Judge CARSWELL. Yes, but I know Julian C. Smith casually and I know Julian Vareen Smith quite well. He is the one I think with whom I had a conversation. I don't even remember talking to him since this has come up. I don't intend to. That is all there was to it.

This was a defunct outfit that went out of business. I now understand, I have been given to understand, by the papers brought up here from Tallahassee for the full inspection of this committee. We never functioned at all. This group went defunct and that is why I got my $76—not $75, but $76-back in February 1 of the next year. The corporation that actually took title to that property was an entirely different corporation that I never was on in any way at all. I think the records will show that I was a member of that club only actually for 3 years, 1963 to 1966, when my boys wanted to play golf and we even dropped out of that because it was too high a stipend; they would rather pay

fee than the full club dues and we used the club very sparingly.

Senator BAYH. Yesterday, as I recall, you said the purpose of this, to your knowledge, was to build a clubhouse?

Judge CARSWELL. Clubhouse or club facilities. I suppose they had in mind a swimming pool, tennis courts, the usual things.

Senator Bayh. Since you have looked at the documents, I suppose

Judge CARSWELL. Senator, I have not looked at the documents. I didn't mean to leave that impression with you. The documents speak for themselves. I couldn't begin to tell you what the documents say.

Senator KENNEDY. Mr. Nominee, I think the document speaks for itself in terms of the incorporation of a club, a private club. Given the set of circumstances, the fact that there were fears of closing down of recreational facilities in that community at that time because of various integration orders, I suppose the point that Senator Bayh is getting to and some of us asked you yesterday is whether the formation of this club had as its own purpose to be a private club which would, in fact, exclude blacks. The point that I think he was mentioning and driving at, and Senator Hart talked to, and I did in terms of questions, is whether, in fact, you were just contributing

the greens

$100 to repair of a wooden clubhouse, or whether in fact, this was an incorporation of a private club, the purpose of which was to avoid the various court orders which had required integration of municipal facilities.

Now, I think this is really what, I suppose, is one of the basic questions which is of interest to some of the members and that we are looking for some response on.

Judge CARSWELL. Yes, sir, and I hope I have responded, Senator Kennedy. I state again, unequivocably and as flatly as I can, that I have never had any discussions with anyone, I never heard any discussions about this.

Senator BAYH. You had no personal knowledge that some of the incorporators might have had an intention to use this for that purpose?

Judge CARSWELL. I certainly could not speak for what anybody might have thought, Senator. I know that I positively didn't have any discussion about it at all. It was never mentioned to me. I didn't have it in mind, that is for sure. I can speak for that.

Senator BAYH. Were there problems in Florida relative to the use of public facilities and having them moved into private areas

Judge CARSWELL. As far as I know, there were none there and then in this particular property that you are talking about.

Senator BAYH. You weren't aware of other cases in Florida

Judge CARSWELL. Oh, certainly, certainly. There were cases all over the country at that time, everywhere. Certainly I was aware of the problems, yes. But I am telling you that I had no discussion about it. It was never mentioned to me in this context, and the $100 I put in for that was not for any purpose of taking property for racial purposes or discriminatory purposes.

Senator BAYH. You were aware that the Supreme Court had previously, sometime before that, come down with an order prohibiting this type of thing?

Judge CARSWELL. Yes, sir;I am aware of the decision of the Supreme Court.

Senator Bayh. Well, I don't want to dwell on this at length, but I think we need to nail down that Judge Carswell has, after that one intemperate statement, been involved in a steady sequence of events which tend to repudiate it; and it concerns me, very frankly, for you incidentally to be involved at the time you were district attorney in the incorporation of a club at least some of the members of which have made public allegations that the purpose of this was to avoid the integration order which had been previously set down by the Supreme Court of the United States and which, 1 month after incorporation, was ordered relative to another court in Pensacola, in your own State. This concerns me. You had no knowledge of this Pensacola case, because it came down a month afterward. But one has to wonder if the district attorney wasn't aware that this activity was going on in the State of Florida.

Judge CARSWELL. Certainly, I was aware, Senator, that these things were going on. But you will find, and I think the records will show I have not examined them, but I am positive that I have never been any incorporator, director, whatever the language may be on there, I have never participated in any corporation that ever took any action

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