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chief judge of the Fifth Circuit Court of Appeals a petition for rehearing on a matter which the chief judge felt was of such fundamental importance. I think that one of the chief responsibilities of the Supreme Court is to have this kind of sensitivity, to be able to interpret what the issues are, to be able to make an intelligent decision as to whether a writ of certiorari should be granted or not. This to me is an important function of the Supreme Court. Yet in a case of such basic importance as the Phillips case, he refused to accord even a rehearing
I think that this is my basic indictment of Judge Carswell, his lack of sensitivity. I find that such a judge, in my opinion, is not fit to serve on the Supreme Court because of his lack of understanding of what women's rights mean in this country and what the Equal Opportunity Act means for the fulfillment of opportunities for women in this country.
Senator Bayh. Then, I take it, your complaint, your criticism of this particular decision goes not to the establishment of a hiring policy that preschool age children might not be a good criterion as to whether a person should be hired or not, but that if it applies to women, it should also be applied to men?
Mrs. MINK. Exactly.
Senator Bayh. Would one also be fair in attaching the criterion that if there were a spouse remaining at home, maybe you could have a different criterion, or is that fair?
Mrs. MINK. I do not believe that the condition of the family should ever be a disqualification for employment. I think that this is what this case was all about. Certainly this woman may have had a mother to take care of her children. There may have been day-care centers to provide for adequate care. I have a bill, which I am hopeful will be enacted into law, which will provide day-care facilities for working mothers to implement what I believe to be the national policy with regard to opening up employment opportunities for women. If this case stands and is the law of the land, then women automatically with preschool age children can be deprived, without any further consideration, except the fact that there are young children at home, be deprived of a job, an opportunity to uplift themselves, to support their families, and to have a decent life.
Senator Bayh. I appreciate your bringing this matter to our attention. I want to look at it more thoroughly. I remember hearing rather persuasive statements from your colleague, Mrs. Chisholm, and from former Ambassador to Luxembourg, former dean of the Howard University Law School, Patricia Harris, both of whom I recall made critical statements that they have been discriminated against more as women than as citizens of the black race. I think this is the kind of condition we cannot tolerate in this country and I want to look at this case with a great degree of particularity and I appreciate your bringing it to our attention.
Mrs. MINK. Thank you very much.
Senator Fong. Mr. Chairman, I wish to welcome my distinguished colleague before us from the State of Hawaii.
Mrs. MINK. Thank you.
Senator FONG. I know Mrs. Mink has been in the forefront of the fight for equal rights for women and I commend her for it. Someone has said that a nation can't permanently remain on a level above the level of its women, and I personally subscribe to that.
Mrs. Mink has brought to this committee a very serious problem confronted by women who have children and who need to seek employment. As she has stated, 6 million women are in that category with preschool children who are seeking employment. We can understand employers not wanting to hire women, feeling that many of these children probably will be neglected, but there is no fear now, because there are facilities to take care of these children. There may be grandmothers and there may be friends to take care of these children. As one who has diligently fought for equal rights for women, I feel that employers should not discriminate against women in such a matter. I think that the body that really can help materially in this matter is the Equal Employment Opportunity Commission. That body should give this matter serious attention and should recommend that something be done. Otherwise, this committee will be forced to look into the matter.
I want to thank you for appearing before this committee and giving us your views and for your fight for women's rights.
Mrs. MINK. I thank you, Senator, for your comments. I appreciate them very much.
The CHAIRMAN. Senator Cook?
Senator Cook. Mrs. Mink, as the father of four daughters and knowing how my household is completely controlled by women, I am very much in sympathy with the remarks that you have made. But with all honesty and fairness, I think there are some things that should go into the record.
First of all, you put a great deal of emphasis on the fact that Judge Carswell did not follow his chief judge. Are you aware of the fact that 10 other judges on the fifth circuit did not follow their chief judge and allow an en banc hearing?
Mrs. MINK. Yes, I am well aware of that, Mr. Senator. But the other nine are not up for appointment to the Supreme Court.
Senator Cook. Would you criticize the other nine on the same basis? Mrs. MINK. Yes, I would, if they were here.
Senator Cook. Would you criticize, for instance, Judge Wisdom, whom many people have felt—as a matter of fact a number of people in this room—that if a Southerner had to be nominated to the Supreme Court Judge Wisdom was a person of such temperament and such wisdom and such legal ability that he would withstand all of the tests to be nominated for Justice of the Supreme Court?
Mrs. MINK. I would have the same criticism of all the other nine judges.
Senator Cook. Would you have the same criticism of Judge McGowan, of the District of Columbia as a matter of fact, who was sitting on this case, who went down there and sat on this case as a guest judge?
Mrs. MINK. Yes, I would.
Senator Cook. Let me ask you this: I think your criticism might be well founded if the same things might have occurred. Have you read all of the testimony and all of the record in this case to see whether
the entire opinion was based on nothing but the dissenting opinion of Judge Brown?
Mrs. MINK. I have read all of the printed opinions that are available in the library here in Washington, beginning with the trial, through the appellate level.
Senator Cook. The only printed opinion is the dissenting opinion of Judge Brown.
Senator BAYH. Will the Senator yield?
Senator BAYH. The dissenting opinion of Judge Brown is listed in the appellate record. Congresswoman Mink mentioned that she had read the trial opinion.
Senator Cook. She just said she had not read the trial.
Mrs. MINK. Not the testimony. You asked whether I had read all of the testimony, and of course I have not. But I have read all of the printed opinions beginning at the trial level.
Senator Cook. Are you also aware of the fact, Mrs. Mink, that practically every case that is tried in the federal system, and I stand judged by most of the lawyers in this room, that as soon as a decision is rendered, the first thing the lawyers do is file a petition for rehearing?
Mrs. MINK. In this case, it was not one of the lawyers for either party that filed the petition for rehearing; this was one of the judges of the fifth circuit.
Senator Cook. But a petition for rehearing has been filed?
Senator Cook. And based on that, the judge wrote his dissenting opinion and circulated it to the judges.
Mrs. MINK. As I read the opinion which contained the dissent of the chief judge, it specifically noted in a footnote that no such petition for rehearing had been filed by either party, but that this was initiated by the chief judge.
Senator COOK. A petition had been filed, as a matter of fact, I think by one of the departments of the Federal Government in this case.
The only point I am trying to make is that I think you are summarily condemning, for instance, such distinguished judges as Judge McGowan, who was a former law partner of Adlai Stevenson, and I doubt very seriously you could accuse him of being against the rights of women. I think you are condemning Judge Wisdom, I think you are condemning Judge Goldberg, of Dallas. Until we read the entire record, other than the dissenting opinion, I think we are going a long way in condemning 10 judges who failed to agree with their chief judge on a matter which was heard at the fifth circuit level, on a matter that, even if it had been heard en banc, would have gone to the Supreme Court of the United States, and the Supreme Court will make that decision. I am just concerned about, as a matter of fact, an en banc indictment of 10 judges because of the dissenting opinion of Judge Brown on a case that will ultimately go to the Supreme Court of the United States anyway. I would have to say this in all fairness.
Mrs. Mink. If the Senator will permit me, I would like to read from the footnote of this opinion which contains the dissent of the chief judge. The footnote says, and I read verbatim
Senator Cook. I might suggest I have asked for a copy of the entire record and will get a copy of that entire record to you.
Mrs. MINK. If the Senator will permit me to read the footnote. It says
Presumably because it was amicus only and not a party, the Government did not seek either rehearing or rehearing en banc. For understandable reasons, the private plaintiff, Ida Phillips, who has the awesome role of private attorney general without benefit of portfolio or more important, an adequate purse, presumably felt that she had fulfilled her duty when the court ruled. Subsequently, a poll being requested, the Government filed a strong brief attacking the court's decision.
Senator Cook. That footnote still does not obviate the fact that Reese Marshall, who represented Mrs. Phillips, filed a petition for rehearing
Mrs. MINK. Subsequently, yes.
Senator GRIFFIN. Mr. Chairman, I am very glad to welcome a former colleague from the House, and one whom I served with on the Education and Labor Committee. Although I have not always agreed with the witness on legislative issues, I have always been impressed with her ability to argue her case, and I think, once again, you have demonstrated that you can argue a case very effectively. I think it is an excellent statement and one that the committee ought to consider very seriously.
Thank you, Mr. Chairman.
Do you solemly swear that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God?
Mrs. FRIEDAN. I do.
TESTIMONY OF BETTY FRIEDAN, NATIONAL PRESIDENT,
NATIONAL ORGANIZATION FOR WOMEN
Mrs. FRIEDAN. I am Betty Friedan and I am a writer. I wrote a book called “The Feminine Mystique," and I am here to testify before this committee to oppose Judge Carswell's appointment as Supreme Court Justice on the basis of his proven insensitivity to the problems of 51 percent of U.S. citizens who are women, and especially his explicit discrimination in a circuit court decision in 1969 against working mothers.
I speak in my capacity as national president of the National Organization for Women (NOW) which has led the exploding new movement in this country for "full equality for women in truly equal partnership with men," and which was organized in 1966 to take action to break through discrimination against women in employment, in education, in government, and in all fields of American life.
On October 13, 1969, in the Fifth Circuit Court of Appeals, Judge Carswell was party to a most unusual judiciary action which would permit employers in defiance of the law of the land as embodied in title VII of the 1964 Civil Rights Act to refuse to hire women who have children.
The case involved Mrs. Ida IPhillips, who was refused employment by Martin Marietta Corp. as an aircraft assembler trainee, because
she has preschool age children, although the company said it would hire a man with preschool age children.
This case was considered a clear-cut violation of the law which forbids job discrimination on grounds of sex as well as race. The Equal Employment Opportunity Commission, empowered to administer title VII, filed and amicus brief on behalf of Mrs. Phillips. An earlier opinion of the fifth circut filed in May upholding the company was considered by Chief Judge John Brown such a clear violation of the Civil Rights Act that he vacated the opinion and asked to convene the full court to consider the case.
Judge Carswell voted to deny a rehearing of the case, an action which, in effect, would permit employers in the United States today to fire 4 million working mothers who have children under 6. These mothers comprise 38 percent of the nearly 11 million mothers in the labor force today.
Judge Carswell said yesterday in answer to Senator Bayh's question—I was here in the room—that he understood full well-it was not a pro forma matter-that he understood full well the effect of his ruling here.
Now, in his dissent to this ruling in which Judge Carswell with others claimed no sex discrimination was involved, Chief Judge Brown said:
The case is simple. A woman with preschool children may not be employed ; a man with preschool children may. The distinguishing factor seems to be motherhood versus fatherhood. The question then arises: Is this sex-related ? To the simple query, the answer is just as simple: Nobody—and this includes judges, Solomonic or life-tenured-has yet seen a male mother. A mother, to oversimplify the simplest biology, must then be a woman.
It is the fact of a person being a mother-i.e. a woman-not the age of the children, which denies employment opportunity to a woman which is open to
It is important for this committee to understand the dangerous insensitivity of Judge Carswell to sex discrimination. When the desire and indeed the necessity of women to take a fully equal place in American society has already emerged as one of the most explosive issues of the 1970's, entailing many new problems which will ultimately have to be decided by the Supreme Court.
I suppose I am as much an expert as anybody on this explosion, since I seem to bear a major responsibility in helping to unleash it in this country and bringing it to consciousness. I say that it is a matter of historic necessity, almost, that women are today exploding in their belated insistance that they be able to use their rights under the Constitution and move equally in American society, especially in employment.
This necessity is historical in two ways: Biology and the advances in science in this world, in society which man has made, give a woman today 75 years, on the average, of human life. A relatively small proportion of these years now can be spent or must be spent in child rearing and child bearing. So a woman has the majority of the years of her adult human life and most of her human energy to be spent in society. She has no other place to use it. Secondly, the economics of our time have made it a historic necessity for women to move to full equality in society. I speak here now not only of the standards of living of a society of affluence where our demands for bringing up our children