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judge let the vehemence of his personality creep out, that is recent.

That is recent, Mr. Chairman and members of the Judiciary Committee, not 22 years ago.

I would like to hear him answer that. I was not satisfied with the press reports I read of his participation in that country club, where he said originally it was to set up some kind of clubhouse, and when he was asked about the golf course he said, well, I guess they were going to do something around the golf course, and where he evasively said, well he was an incorporator or a something or a potentate or something.

I think we owe him the opportunity to come up here to clear the air. I would like to hear some of those answers. I would like to hear the answers to the charges made against this man by civil rights leaders, who have had experience with him.

Fortunately I would say I have not run into this judge. I have run into some other judges probably almost as bad, because we can't have all judges in the United States capable to sit on the Supreme Court bench.

But I think it is imperative, in the light of the testimony that has come out, especially today, Mr. Rosenberger's testimony, and this young man, Mr. Knopf's testimony, that you bring this judge back here. Don't let some clerk come here and say to the best of his knowledge the justice never said anything. Ask him what he said in chambers to that Northern civil rights lawyer who had the temerity to go down South, for no money, and fight for voting rights for people that Judge Carswell thought he was better than.

I hope that the Senate of the United States will not accept the insult handed to it by the executive branch that if you turn me down on a Haynsworth I will find somebody worse, because it can't go too far. We are at the bottom of the barrel now, and if you do it again, if the Senate has the courage to meet its great responsibility and say to the President, this man is not fit to sit on the Supreme Court, then I say to you eventually he will have to come up with an appointment that is suitable to the Senate and to this Nation in this time.

He cannot keep coming up with somebody worse, because Carswell just about rings the gong. Now Haynsworth, however bad he was, you proved a principle there. You cannot make a million dollars wheeling and dealing while you sit on the Federal bench, no matter how conservative you are or how good a Republican you are, you proved that, and then be appointed to the Supreme Court as a reward for it.

Now you can prove another principle. You can't be an undistinguished, dull graduate of the third best law school in the State of Georgia, with an undistinguished judicial record, and a record of hostility to black people, and be appointed to the Supreme Court.

I am available for questions, Mr. Chairman.
Senator BURDICK. Thank you.
Senator Tydings.
Senator TYDINGS. No questions.
Senator HRUŠKA. I join the Senator from Maryland in passing.
Senator BURDICK. Senator Griffin.
Senator Cook.

Senator Cook. I am not going to join any of you, because, Mr. Witness, I hate to say this but I don't think you have a humble opinion. about anything the way you have been tearing people apart. I am delighted that you had an opportunity to graduate from the University of Virginia. I didn't And I am sure that there are a great many people that graduated from the same law school that Judge Carswell did that would like to have an opportunity to tell you that they are probably very successful lawyers today, and whether they graduated from a third-rate college or a second-rate college, as you were so prone to make a point of, that they did their best and they did the best they could do with the legal profession that they had assumed that they had been loyal to it.

I graduated from the second best law school in the State of Kentucky. I think it is the best. It is the University of Louisville. However, there are only two in that State, and I would hope that graduates from the law school that Judge Carswell graduated from would take direct offense at what you have said and I would be very frank with you.

Secondly, you stated that you knew of your own knowledge that Judge Carswell helped write the articles of incorporation for a country club in Tallahassee, Fla. Now do you know of your own knowledge that Judge Carswell helped write these articles of incorporation, because this is what you stated ?

Mr. SCHLOSSBERG. If I did I misspoke. Based on my readings of this committee's hearings.

Senator Cook. Then you do not know of your own knowledge that he helped write the articles of incorporation ?

Mr. SCHLOSSBERG. Only from what I read in the papers, that he was listed as one of the incorporators.

Senator Cook. If someone listed you as a lawyer, and you have written many articles of incorporation, you know that the incorporators that you listed in those articles didn't help you write the articles of incorporation, didn't you?

Mr. SCHLOSSBERG. I probably misspoke, Senator.
Senator Cook. All right, let's take the Ida Phillips v. Martin
Marietta case. Do you know that Judge Carswell did not sit on that
case?

Mr. SCHLOSSBERG. Yes, Senator.
Senator Cook. You knew that he voted on an en banc hearing?
Mr. SCHLOSSBERG. Yes.

Senator Cook. And that of the 13 judges that voted on that en banc, 10 voted against an en banc hearing and three voted for.

Mr. SCHLOSSBERG. That is right.

Senator Cook. Do you have the same condemnation for the other nine who voted along with Judge Carswell, which vote did not deny the rights of Ida Phillips, but which merely said that the rights of the parties are preserved and that there is no point in taking an en banc hearing and if it wants to be appealed the right of appeal is reserved.

Mr. SCHLOSSBERG. Let me say, Senator, that I do have the same feeling that everybody who voted against an en banc hearing in the Martin Marietta case was wrong and demonstrated it to me in that case, because it was so clear, as it seemed to be to the three judges who dissented in that denial of an en banc hearing, it was so clear that that was a violation of the Equal Opportunity Act title VII, it was so clear that it violated the sex discrimination provisions, that I would say that that would be a serious mark against anybody who voted that way.

Now I oppose Judge Carswell not alone because he voted in that case. I oppose him for many other reasons. You know, it is only a part of a picture.

Senator, I didn't get a chance to answer your first comment on the law school. I tried to make it clear, and I do apologize to anybody else who graduated from that law school, I said I did not hold it against him that he went to the third best law school. It is his record since that I hold against him. A lot of people who read law, Senator, have become some of our most brilliant advocates, judges and lawyers. You know, I didn't mean to

Senator Cook. One other question. Of what great significance to Judge Carswell himself do you attribute your testimony about the Elberta Crate & Box Co.?

Mr. SCHLOSSBERG. Well, it indicates to me that he is a part of a milieu, of a society that is hostile to people, to Negroes and to workers. After all, this was a strike which had racial overtones, this is a company in which he and his wife are heavily invested. This is a family business. I don't say that this proves, alone, that this alone could stand as a mark against him, but it is part of a whole pattern. It is part of a whole pattern. He is tied in with the Elberta Crate & Box. I think if you will read that clipping you will get the flavor.

You would be embarrassed to hold stock in that company. I would. Senator Cook. Would you suggest that Judge Carswell say to his wife who inherited 78 shares of stock from her father that she absolutely had to dispose of that stock?

If your wife inherited stock and you didn't like the company from which she inherited it, and it had tremendous value and it had tremendous growth, would you feel inclined to say to your wife, I don't care what you inherited from your father, you have got to get rid of it, because if you do feel that way and suggest that, I am going to put Betty Friedan on you and you two can discuss how you feel about women's rights.

Mr. SCHLOSSBERG. These are always difficult things.
Senator Cook. She inherited this. This is in the record.
Mr. SCHLOSSBERG. Oh, yes.
Senator Cook. He had nothing to do with it.

Mr. SCHLOSSBERG. Let me say, Senator, on this business of inheritance I do know of a couple in Detroit where the wife did inherit some slum property, and he talked to his wife reasonably: Do you want to be a slum landlord? and he convinced her as I would hope to convince my wife. My wife is a reasonable, educated person; I wouldn't demand that she sell it, but I would talk to her about it, and I doubt if I would

up

for my note if I knew that it was a racist company, even if it were my wife's, if I couldn't convince her to get rid of it.

Senator BURDICK. Senator Cook, do you have more questions?
Senator Cook. I think that is all, Mr. Chairman.

Senator BURDICK. We will recess until after the vote on the Senate floor.

Senator Cook. Fine. Will the witness be back?
Senator BURDICK. Yes. We will recess for about 20 minutes.
(Short recess.)

put it

Senator BURDICK. Mr. Schlossberg, I believe that is all. We thank you very much for your appearance before the committee.

Mr. SCHLOSSBERG. Thank you, Mr. Chairman.
Senator BURDICK. Mr. Leroy Clark.
Do you swear the testimony you are about to give is the truth, the
whole truth, and nothing but the truth, so help you, God?

Mr. CLARK. I do.
Senator BURDICK. Proceed.

TESTIMONY OF LEROY D. CLARK, ASSOCIATE PROFESSOR,

NEW YORK UNIVERSITY LAW SCHOOL

Mr. CLARK. My name is Leroy D. Clark, and I am an associate professor at the New York University School of Law. I have been on the faculty at New York University for approximately the last 2 years. From 1962 through 1968, I was staff counsel to the NAACP Legal Defense Fund, and in that capacity after the now Judge Motley left our office, I was put in charge of the entire civil rights litigation in the State of Florida, and I come to make a statement with that background, because I would suggest that there is not a lawyer in the country today who has appeared before Judge Carswell on more cases with specific reference to civil rights matters, and indeed on each occasion on which I appeared before Judge Carswell, it was in connection with a civil rights case

I come here, however, not as a staff member of the NAACP legal defense fund,' but to represent the National Conference of Black Lawyers. Our organization was founded in Virginia in December of 1968, to challenge the racism in our legal system, to articulate the needs of the black community, and to provide the legal expertise necessary in the black American's struggle for equality. We number in our ranks attorneys representing the entire spectrum of both the private and public sectors, as well as elected governmental officials from the local, State, and national levels.

On behalf of the National Conference of Black Lawyers, I come before you today to speak in opposition to the confirmation of Judge G. Harrold Carswell. In the view of our organization, Judge Carswell is fit neither professionally nor personally to sit as an Associate Justice of the U.S. Supreme Court. The acquisition of equal rights of citizenship for black people in this country has been a long and difficult task and in numerous instances almost totally dependent upon rulings by the Federal courts. As a Federal district judge prior to his recent elevation to the court of appeals, Judge Carswell was in a position to fulfill some of the American promise of equal rights under law. However, in disregard of the civil rights pronouncements of the Supreme Court, Judge Carswell frequently announced prosegregationist rulings which were then reversed by the court of appeals.

Moreover, repeatedly through the use of procedural devices, in cases in which I appeared before him, and the exercise of his broad judicial discretion, Judge Carswell caused unconscionable delay in civil rights cases, and limited their holdings to the narrowest possible scope.

In Augustus v. Board of Public Instruction of Escambia County, Florida, 306 F. 2d 862 (1962) the court of appeals unanimously rejected the school desegregation plan approved by Judge Carswell and

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required the school board to take further action toward desegregating the public schools. In that case, the court of appeals also unanimously reversed Judge Carswell's procedural ruling which had eliminated the claims of racial discrimination in the assignment of teachers and other school personnel.

Whether as a question of law or one of fact, we do not think that a matter of such importance should be decided on a motion to strike. (306 F2d at 868.)

I would suggest that no competent unbiased judge could have made that kind of blatantly inappropriate ruling which as a matter of Federal procedure was long settled.

In Due v. Tallahassee Theaters Inc., an action against theater managers, city officials, and the county sheriff alleging a conspiracy to enforce segregation, Judge Carswell again dismissed the complaint against some of the defendants and granted summary judgment as to another.

The court of appeals again reversed Judge Carswell, and in many of these cases you will note that no elaborate description of the law is given because none is needed, because the law was firmly settled on these procedural points at that time. Judge Carswell took these procedural devices, I would suggest, as a means of delaying the civil rights goal. The court in that case said:

The orders of the trial court dismissing the complaint for failure to state a claim on which relief could be granted can be quickly disposed of. These orders were clearly in error. (333 F. 2d 630 (1964) at 631.)

Singleton v. Board of Commissioners of State Institutions was a case in which I was counsel. This was a case which arose out of the St. Augustine demonstration. We had four young black children ranging in age from 14 to 16 years old, who were incarcerated in the State reformatory for participation in a sit-in demonstration which subsequently was found to be unconstitutional. We were trying to get the children released from the reformatory. We filed a writ of habeas corpus asserting that the incarceration was illegal.

At this time the children had not even been convicted. We were simply trying to get them out of the reformatory prior to their trials. The trial judge in St. Augustine held children were not entitled to bail, so that adults who were arrested in the same demonstration were released and these four children were put into the State reformatory.

We tried all sorts of collateral proceedings in the State court to have the children released. We then decided that tactically the only way we could get those children out of that reformatory was to take the risk of filing a suit to desegregate that reformatory.

The reformatory was in fact segregated from top to bottom, with the black children being kept in what I can only describe as shacks, while the white children were put in the new buildings on the grounds.

We were running one of two risks: That the children would be kept in the reformatory and subjected to harassment, or that the reformatory officials would want to get these troublemakers out. Fortunately, they did the latter, and within 2 weeks after filing our complaint in the Federal district court, the children were released from the reformatory.

I note also they were released prior to the time they were supposed to be released. I anticipated that Judge Carswell would at that point

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