« AnteriorContinuar »
dismiss our complaint to desegregate the reformatories. That is precisely what Judge Carswell did. And, again, I took Judge Carswell up on appeal, and he was reversed.
He asserted that the case was moot because our four plaintiffs were no longer in the reformatory. Again, I suggest to you that it was either one of two things, either judicial incompetence or bias, because the law was fairly settled that when a major public institution such as those State reformatories were proven to be segregated, that the case was not moot on the set of facts which Judge Carswell had before him.
I will not repeat the long period of delay and dilatory tactics which Judge Carswell adopted in the Steele case.
Senator TYDINGS. What case? Mr. CLARK. The Steele case, Steele v. Board of Public Instruction of Leon County, which Congressman Conyers has given you the details on. It took me, and I was counsel in that case also, from May of 1964 until May of 1967 to secure a change in a desegregation plan where I was prepared to prove in 1964 that in a black school population of 16,000 students, only four students were attending white schools, and Judge Carswell did not see fit to revise that desegregation plan.
Senator TYDINGS. Would you tell us a little bit about it? I think that the Steele case is a very important case. You go into a little more detail in your statement, and I think it would be interesting for the Senators to hear a little bit more about how that case was delayed for 3 years.
Mr. CLARK. We followed the typical process after a suit has already been filed in a county, as had been done in this county. It was to bring on a motion for further relief.
At the point where it was clear that the desegregation plan was not working, and in 1964 it was impossible for any judge sitting anywhere in the Fifth Circuit to not know that four children out of 16,000 was an inadequate plan, we filed a motion for further relief.
This was the appropriate form to revise the desegregation plan. We could not get a hearing, and I finally had to file a motion for a hearing. These hearings in other courts and before other judges, when they were filed were granted as a matter of course. That is, the filing of the motion meant you got a hearing date, and I would suggest also that the periods of time that it took to get a hearing before Judge Carswell were inordinately long, if I compared it to my appearance before other judges in the State of Florida, and I appeared before practically every judge in that State, including a few who are now on the Court of Appeals.
When we got our hearing, then there was another delay before you get a ruling, and then when the ruling came, it did not address itself to the basic issue in the motion, namely, a revision of the plan.
Judge Carswell at that point told us that the defendants were complying with his previous order, which was not the point of the motion at all. We were saying, look, this plan is not working, and it must be revised. So we don't get a ruling.
Now, I suggest that that, again, is either one of two things, either it is judge who has not read your papers, and therefore does not know what your basic allegations are, or has deliberately ignored your basic allegations, because as any lawyer who knows anything about pro
cedural matters would know, at that point you could not take an appeal, because if you took an appeal, the appellate court would say: But the judge has not addressed himself to your basic allegations, so therefore we don't know what his ruling is.
So you could bounce up, get essentially a meaningless kind of statement from the court of appeals, and you would be right back in the district court and, again, you would have lost 5 or 6 months, and I suggest that from my view Carswell knew that.
We then had to file a motion asking him: Would you please rule on our motion, and finally we got from Judge Carswell this statement, because I asked for a ruling on a motion or at least a hearing, so we could produce evidence to show him how this desegregation plan was operating
Judge Carswell's statement in ruling on my motion was that no evidence could persuade the court to reorganize a desegregation plan, and evidence to that end "would just be an idle gesture regardless of the nature of the testimony."
Now, I can only read that as a statement that no matter what we showed Judge Carswell about the inadequacy of the desegregation plan, some 7 or 8 years after the Brown decision, that he was not going to review that case.
Now, one can view that as strict construction, literal construction, or one can view it as a deliberate attempt to rule against plaintiffs with limited resources and limited amounts of money, and limited numbers of lawyers, and say: All right, take me up. Get me reversed.
If I had had time, I could document now at least 12 or 13 other instances in which Judge Carswell ruled against us on subsidiary motions for subsidiary points of law, in which he was wrong, but in which we could not take an appeal because we literally did not have the money and the time, and we had to devote our energies to other priorities.
For example: in NAACP v The State Board of Parks, I filed a suit to desegregate the State Parks. In 1964, all of the State Parks in the State of Florida were segregated. Brochures were sent out announcing to black people as to which parks they could attend and which parks whites could attend. There were racial signs up at entrances.
We could prove this. It was a very simple matter of proof. We had photographs, we had witnesses, and indeed when the other side came in, they admitted that the parks were segregated and had been segregated. They did
not assert that they had at that moment any plan for desegregation. They said that: Well, we will start on it.
So I said to Judge Carswell: But we would like an injunction. I know that they say they are going to start to desegregate the parks, but we would like an injunction. And I believe that under the law we are entitled to it, and indeed we were, because if at that point you prove your case, the defendant cannot come in and say: Oh, I am sorry, I am going to do better in the future.
You have a right to be protected by an injunction of a court of law, so that if the defendant continues this behavior in the future, you have the right to come back in on a contempt proceedings, from which other kinds of consequences flow.
Need I say that Judge Carswell refused the injunction in that case, and asserted that, well, the defendants say they are going to desegregate. We had no way under those circumstances, really, to require reporting from the defendants, which we would have required if there were an injunction.
They could have been made to come back 6 months later and say: We have taken down the signs, we have revised the brochures, we have informed our employees that this is the policy of this board.
We were totally unprotected in that circumstance. We had to rely on the good faith of people who did not see the need to desegregate their institution until we filed suit.
Now, this unfortunately occurred at the time of the St. Augustine demonstrations, with three to four hundred people being arrested every week. There was absolutely no time or energy to spend on that kind of appeal, so we could not take the appeal. But Judge Carswell was wrong
I do not want to belabor this with the committee; I know you have heard many witnesses today, and a great deal of rhetoric.
Senator TYDINGS. Professor, you take the time. We want to hear everything you have to say.
Mr. CLARK. In closing, let me say this. That the National Conference of Black Lawyers urges this committee to weigh carefully the analysis we have made of Judge Carswell's suitability for the United States Supreme Court and weigh it along with those others that will be and have been made on his professional and other qualifications.
The constitutional requirement of confirmation by the Senate must mean more than a perfunctory ratification of the President's choice. The Supreme Court plays a unique role in the shaping and growth of our institutions. It describes the contours of freedom and sets the course of national direction. It is the court from which there is no appeal-the last resort of the man who accepts and believes in our system of law.
Whatever may have been Judge Carswell's suitability to serve on a lower Federal court, completely different considerations must come into play when the question is one of a seat on the highest court in the land. We are not in the realm of a simple “liberalism" versus "conservatism” debate. We are in the altogether different dimension of questions concerning our national destiny. Black people do not want their destinies in the hands of G. Harrold Carswell; nor can the Nation as a whole-black and white-afford to have any part of its destiny there.
Black people have long been the victims of the law in this society. It was the law which created, protected and enhanced the institution of American chattel slavery. It was the law which provided the onerous slave codes to govern in oppressive detail the lives of millions of blacks before their emancipation, and
which returned to perform the same function through the notorious Black codes after emancipation.
The report of the National Advisory Commission on Civil Disorders, May 1, 1968, told the Nation that we live in a racist society. Black people—and in particular, black lawyers—have known this for some time. Thus far, the law has proved inadequate in attempts to remedy this condition, but some advance has been made.
If, relying on the legal system, we are to continue to give our people hope, then that system must give us cause for hope. If we are to continue growing into health as a Nation of free and diverse men, we cannot afford a retreat now from the struggle for racial justice. The ascendance of Judge Carswell to the Bench of the U.S. Supreme Court, as the first step in such a retreat, would dim the light of hope for change through legal means in the hearts of millions of Americans and diminish, worldwide, confidence in the American system of justice.
For all of the foregoing reasons, the National Conference of Black Lawyers respectfully, but vigorously, urges this august committee to disapprove the nomination of George Harrold Carswell to the U.S. Supreme Court.
Senator BURDICK. Thank you, Professor Clark.
Senator KENNEDY. Professor, while I missed the earlier part of your testimony, I did come in at the time that you were describing your own personal experience in trying cases before Judge Carswell. You testified to that, I believe.
Mr. CLARK. Yes, I did.
Senator KENNEDY. And you have practiced quite extensively in the other Districts of Florida, as well?
Mr. CLARK. That is correct. Perhaps I should describe that in some detail. I was on the staff of the NAACP Legal Defense Fund. The senior lawyers had areas, geographical areas, which they were to supervise, and Florida was one of the States that was under my supervision. Now that meant that I knew every single lawyer in the State of Florida who practiced civil rights law, white and black, and indeed I know what their evaluation of Carswell was. In a sense I tried to manage the flow, you know, the ebb and flow of litigation, what was to be filed, what appeals would be taken, trying to deploy lawyers in areas where there were few lawyers who would handle civil rights matters, so that in that capacity I not only got to know the civil rights lawyers but I had to appear in practically every district court in the State of Florida.
Senator KENNEDY. How many times did you appear before Judge Carswell?
Mr. CLARK. I would say at least nine or 10 times.
Senator KENNEDY. And as far as the other districts in Florida, this was an area of prime responsibility for you. Did you appear in the middle district nine or 10 times?
Mr. CLARK. Yes, that is true.
Senator KENNEDY. And in other districts as well in the State of Florida about a similar number of times, or did the nature of your practice bring you more often in front of Judge Carswell ?
Mr. CLARK. I would say my practice or appearances in Jacksonville, Fla., and Tallahassee were roughly equal. I appeared before Judge Brian Simpson when he was on the Federal district bench at that time, and before Judge McRae in Jacksonville. To some extent in Tampa, Fla., to a lesser extent in a place like Miami. They had fewer segregation problems in that area of the State.
Senator KENNEDY. And your comment regarding the judge's attitude on civil rights questions is really based upon your own extensive personal experience in terms of appearances before the judge, as well as preparing your appearances before the judge, and his attitudes on these questions, and your appearances before other Federal judges and their attitudes as well ?
Mr. CLARK. That is correct.
Senator KENNEDY. And based upon that experience over how many years?
Mr. CLARK. From 1962 through 1968, roughly 6 years. Senator KENNEDY. And it is based upon that personal experience, plus your own rather unique background, that you express the serious reservations for yourself and the group which you represent in terms of the attitude of the nominee toward civil rights cases and attorneys?
Mr. CLARK. That is correct. I have said this before to the press, and I will repeat it for the benefit of this committee.
Judge Carswell was the most hostile Federal District Court judge I have ever appeared before with respect to civil rights matters.
Senator KENNEDY. That is a very serious charge, and I hope you would be prepared to justify that claim and that charge.
Mr. CLARK. Well, let me say I have gone through in my testimony many of the cases, and I am sure there will be other persons who will appear before you who are privy to Mary Kurzan's doctoral thesis. I, by the way, was probably the first person to receive that thesis. Mary Kurzan
was a friend of my wife when she was at the Yale Law School, and so I saw the document, but I had had by that time extensive experience with Carswell.
Let me talk a bit about his demeanor with respect to lawyers. And I say
that with this caveat: I believe that the documentation as to his judicial performance is much more important than his demeanor with respect to myself and other civil rights attorneys.
Judge Carswell was insulting and hostile. I have been in Judge Carswell's court on at least one occasion in which he turned his chair away from me when I was arguing. I have said for publication, and I repeat it here, that it is not, it was not an infrequent experience for Judge Carswell to deliberately disrupt your argument and cut across you, while according, by the way, to opposing counsel every courtesy possible.
It was not unusual for Judge Carswell to shout at a black lawyer who appeared before him while using a civil tone to opposing counsel. But I mention those as asides, really, and I don't think them important, because I am sophisticated enough, and other lawyers, black lawyers who appeared before him, were sophisticated enough to sustain that kind of personal insult.
What I am concerned about is whether it indicates that Judge Carswell is not only a political segregationist but is a personal segregationist, because that will have a great deal to do with whether or not this man can change when he is in a different environment.
Is Carswell a man who really, personally, does not like black people? That is the question which you will have to answer, it seems
With respect to what happened to us, to some extent we expect that kind of thing. And I don't think it is as important as his record, but I put it before you for whatever it is worth.
Senator KENNEDY. How many Federal district judges have you appeared before or practiced before?
Mr. Clark. I would say I have appeared before, maybe, 10, 11, 12 district court judges, ranging from Florida to Alabama and Mississippi. I have appeared before Judge Clayton when he was in Senator Eastland's State. I have appeared before Judge Algood in Birming