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Senator HRUSKA. I would think that would show itself in his activities as U.S. attorney. It certainly showed itself in the decisions that he made as district judge and as circuit judge.
Now, in the totality of that career there has been no evidence of anything but a well-balanced and a fair treatment of all litigants coming before him consistent with his duty as a servant of the law. Furthermore, let me call your attention to one other thing, which it seems to me is clear evidence that there had been a repudiation of the opinion expressed in the 1948 speech. That was when Judge Carswell, before the passage of Federal legislation, ordered a revised jury selection system. This was a practice which he initiated in his district court. He, himself, decided that all segments of the population must be represented in the venire. Isn't it significant that Judge Carswell did initiate this practice? If he was a “racist,” as has been suggested, he certainly would not have adopted this practice.
In your judgment of the circumstances and of the mores, if you please, of your geographic area of the country, would you say that this act depicts one who was a white supremist or a racist, particularly in light of the fact that there are a lot of minority people in the Northern District of Florida?
Mr. COLLINS. I would certainly say that that does repudiate very expressly and very directly the statement of 1948.
Senator HRUSKA. And doesn't that type of repudiation mean even more than any words that are spoken now or 10 years from now?
Mr. COLLINS. I think so. I agree with your statement about that. And in fact, Judge Carswell was elected by the 28th Federal District judges serving in the fifth circuit to represent them at this conference. And I think the simple fact that he was singled out and selected to represent all these judges repudiates that overwhelmingly.
Senator HRUSKA. Thank you very much for your appearance here and your testimony.
Senator BAYH (presiding). Senator Thurmond.
Senator THURMOND. Mr. Chairman, I just want to say I have no questions of Governor Collins. I would like to commend the splendid statement he has made here on behalf of Judge Carswell.
Mr. COLLINS. Thank you, Senator Thurmond.
Senator Cook. Governor, I would like to say it is not only a compliment to this committee that you are here, but more than that, I think it is an extreme compliment to Judge Carswell. I think there is nothing finer in this country than for people to speak up for other people and for people to espouse the fine characteristics of other people. I may say that in regard to what Senator Hruska said, a 1948 remark, backed up by a 1970 exposure, doesn't mean that there is a void between 1948 and 1970. And I think the real gap that has closed that void has been the decisions that Judge Carswell has made, has been the attitudes that he has had, has been the life which he has lived.
I can only say as a Republican member of this committee who has always had a lot of admiration for you, when I was practicing law, we had å fine association with your law firm in Tallahassee, and we enjoyed it very much, Your bills were a little high. [Laughter.] Mr. COLLINS. Thank you very much. Senator BAYH. We will recess until 10 tomorrow.
(Whereupon at 12:10 p.m., the hearing was recessed to reconvene at 10 a.m., Thursday, January 29, 1970.)
NOMINATION OF GEORGE HARROLD CARSWELL
THURSDAY, JANUARY 29, 1970
Washington, D.C. The committee met, pursuant to recess, at 10:40 a.m., in room 2228, New Senate Office Building, the Honorable James O. Eastland (chairman) presiding.
Present: Senators Eastland, McClellan, Hart, Kennedy, Bayh, Burdick, Tydings, Fong, 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.
Do you solemnly swear the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God?
Mrs. MINK. I do.
STATEMENT OF MRS. PATSY T. MINK, REPRESENTATIVE AT LARGE,
STATE OF HAWAII
Mrs. MINK. Mr. Chairman, members of the committee, I thank you for according me this courtesy of presenting my views on the nomination of Judge G. Harrold Carswell to the Supreme Court of the United States. I am here to testify against his confirmation, on the grounds that his appointment constitutes an affront to the women of America. Although women constitute the majority of this Nation, we are still the most neglected and discriminated against group insofar as employment opportunities are concerned. It is for these women that I must speak up today and voice my strong opposition and urge your careful and deliberate consideration of the matters I shall present and which I believe go to the heart of Judge Carswell's qualification to assume this high office.
Too long America has permitted the male dominance of our society to determine the manner in which women are given the right of equal protection of the laws. It should be as self-evident today as it was 50 years ago when women finally won their right to participate in their government, that the Constitution does in fact accord us full and equal employment opportunities. If this was not self-evident, then at the very least the provisions of the Civil Rights Act must be viewed as underscoring the equality of women and their rights to equal job opportunity. No matter with what generosity I review the recent decision in which Judge Carswell participated, I am unable to find any redeeming evidence in his favor on this most crucial issue.
The Supreme Court is the final guardian of our human rights. We must rely totally upon its membership to sustain the basic values of our society. I do not believe that the addition of Judge Carswell to this Court will enhance this guardianship.
I call to the attention of this committee the appellate decision of Ida Phillips v. Martin Marietta Corp., 416 F. 2d 1257, in which Judge Carswell participated on October 13, 1969, as a member of the fifth circuit court of appeals.
This case of enormous importance to the equal rights for women involved the issue of whether it was proper for a private employer to refuse to hire a woman solely on the grounds that she had preschool age children, where no such disqualification was placed on the hiring of men with children of similar age.
Ida Phillips had submitted an application for employment with Martin Marietta Corp. for the position of assembly trainee pursuant to an advertisement in a local newspaper. When Mrs. Phillips submitted her application she was told that female applicants with preschool children were not being considered for employment, but that male applicants with preschool children were. A complaint was filed with the Equal Employment Opportunity Commission which found that title VII of the Civil Rights Acts had been violated. The plaintiff then filed a class suit in the U.S. District Court for the Middle District of Florida, at Orlando, Fla. The district court granted a motion to strike that portion of the complaint which alleged that discrimination against women with pre-school-age children violated the statute, and refused to permit the case to proceed as a class action. The complaint itself, however, was not dismissed and the plaintiff was allowed to prove her general allegation. The court held that Ida Phillips was not refused employment because she was a woman nor because she had preschool children. The court stated, "It is the coalescence of these two elements that denied her the position.”
An appeal was taken to the court of appeals for the fifth circuit.
A three judge panel of the court of appeals sustained the lower court. Following this decision, Judge Brown, the chief judge of the fifth circuit, made a request for a rehearing. This petition was denied. Judge Carswell voted to deny a rehearing. In so doing, I believe that Judge Carswell demonstrated a total lack of understanding of the concept of equality and that his vote represented a vote against the right of women to be treated equally and fairly under the law.
Four million working mothers in this country have children under the
age of 6 years. The decision of this court which Judge Carswell sustained in effect placed all of these women outside the protection of the laws of this land. The decision stated that if another criterion of employment is added to that of the sex of the person, then it was no longer a discrimination based on sex. It ruled that Ida Phillips was not refused employment because she was a woman, but because she was a woman with preschool age children. Judge Brown in his dissent said, “If 'sex plus' stands, the Civil Rights Act is dead *** free to add nonsex factors, the rankest sort of discrimination against women can be worked by employers. This could include, for example,
all sorts of physical characteristics such as minimum weight, shoulder width, biceps measurement, etc." * * * "without putting on the employer the burden of proving 'business justification for such distinctions." The court's decision in effect gave sanction to this employer's prejudices that mothers with young children are unreliable and unfit for employment. I believe that this is the very kind of discrimination which the act of Congress sought to prohibit.
The failure of Judge Carswell to even support the request made by the chief judge of the fifth circuit court for a rehearing is an indication of the man's basic philosophy which I find totally unbecoming of a man being considered for appointment to the highest court of the land.
It was Judge Brown's view that irrespective of the correctness of the lower court's decision, the issue was of such fundamental importance that the full court had an obligation to review it. Judge Brown said:
Court decisions on critical standards are of unusual importance . This is so because .. effectuation of Congressional policies is largely committed to the hands of individual workers who take on the mantle of a private attorney general to vindicate, not individual, but public rights. This makes our role crucial. Within the proper limits of the case-and-controversy approach we should lay down the standards not only for trial courts, but hopefully also for the guidance of administrative agents in the field, as well as employers, employees and their representatives.
Judge Brown went on to say:
Equally important the full court should look to correct what in my view, is a palpably wrong standard.
Judge Carswell voted against this role of the court, and I believe demonstrated his lack of appreciation for this most important responsibility of our judicial system, the highest of which authority resides in the Supreme Court of the United States.
The Congress has acted in numerous ways to demonstrate its belief that working mothers with preschool age children should not be deprived of job opportunities by providing for day-care facilities for their children. This provision is the law in the social security amendments. President Nixon committed his administration to the vigorous support of providing more day-care facilities and underlined his support by saying that these centers for young children would offer more employment opportunities for mothers. Yet his appointment of Judge Carswell flies directly against the implementation of this belief. I find Judge Carswell's attitude deeply prejudicial to this whole concept, particularly in that he would not even accord the plea of the chief judge of his court of the fifth circuit for a full court review of this landmark case.
It is not possible for me to dismiss remarks made by Judge Carswell when he was 28 years old stating his irrevocable belief in white supremacy, like white supremacy, is equally repugnant to those who really believe in equality.
Hålf this Nation are women. I cannot believe that this half of America would vote to seat Judge Carswell on the Supreme Court when he would not vote to allow Mrs. Phillips a rehearing of her case even when that request came from a judicial colleague of the bench. To decide on such writs of review is the predominant work of the Supreme Court. Men who serve on this Court must have a high degree of sensitivity. I would probably not be here today if a rehearing had been supported by Judge Carswell in the Phillips case, regardless of the verdict or how he voted. The essential question is his failure to demonstrate even the slightest concern for Mrs. Phillips as a human being, a pauper, standing at the mercy of that court fighting for the rights of all women.
May I conclude, Mr. Chairman, by urging this committee to defer final action on this matter to allow for a full and extensive investigation. I believe that the women of this country deserve this concern. I plead for your favorable consideration of my request.
Thank you, Mr. Chairman.
Senator HART. Mrs. Mink, I apologize for my late arrival. It was at another committee meeting which I was compelled to chair. I arrived too late to hear your statement in full. This is a rather lame response, therefore. Knowing you, I shall read your statement with great care.
I think I would say that with respect to any colleague in Congress, but having served with you on the platform committee, I know that you do not waste time over incidentals. If this is important enough to you, it becomes important enough to be a chore which we should undertake.
Mrs. MINK. Thank you very much, Senator. The CHAIRMAN. Senator Bayh? Senator Bayh. Mr. Chairman, it is a great privilege to have Mrs. Mink before our committee.
I addressed a question to the judge yesterday relative to this matter of Mrs. Phillips' problem with Martin Marietta. Have you had a chance yet to explore what the judicial precedents are on the status of this rehearing? The judge yesterday tended to make light of this as a pro forma matter, that it really was not a true test of what he really believed as far as women's rights are concerned. Have you had a chance to explore this matter?
Mrs. MINK. It is a pending matter before the Supreme Court of the United States. It has
been taken on appeal. Petition for a writ of certiorari has been filed. It is a matter of paramount importance insofar as equal opportunity rights are concerned in America for women.
Senator BAYH. What I was specifically concerned with was whether this is in fact a true test of Judge Carswell's feeling vis-a-vis women. He led us to believe yesterday that the petition for rehearing was a sort of pro forma matter, that it was really not a significant test. Since that time, the question has been raised as to whether this was a matter similar to a petition for certiorari at the Supreme Court level, or whether it really does get down to the nitty gritty of how the judge really feels. That is what I am trying to determine in my own mind. I share your concern with equal rights and equal opportunities. Have you looked into this?
Mrs. MINK. Yes, I have, and it is the procedural question which brings me here to the committee. As I said in my statement, if he had been a participating judge and had made a decision based upon his having heard the facts and reviewed the law, I probably could not hold against one man, one decision in an area such as this. But it was his failure to evidence any sensitivity toward this issue to accord the