In Due v. Tallahassee Theaters Inc., an action against theater managers, city officials and the country sheriff alleging a conspiracy to enforce segregation, Judge Carswell dismissed the complaint against some of the defendants and granted summary judgment as to another. The Court of Appeals unanimously reversed and stated:

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.

In Singleton v. Board of Commissioners of State Institutions, an action to desegregate Florida reform schools, Judge Carswell again dismissed the complaint and again the Court of Appeals reversed unanimously. 356 F2d771 [1966]. The school desegregation case, Steele v. Board of Public Instruction of Leon County, graphically illustrates Judge Carswell's practice of delaying civil rights litigation for extraordinary periods of time, giving defendants additional time under a segregated system.

In this case black plaintiffs filed a motion for further relief on May 7, 1964. May 26, 1964 the court sustained defendants school boards objections to interrogatories inquiring into teacher segregation. No further hearings were ordered before school opened and September 28, 1964 plaintiffs filed a motion for a hearing. January 20, 1965 the court found defendants to be in compliance with the outstanding order entered in 1963. February 15, 1965, plaintiffs filed a motion for hearing requesting an opportunity to present evidence on the motion for further relief noting that the January 20, 1965 order made no mention of the additional relief requested in the motion for further relief filed the previous May. April 5, 1965, plaintiff renewed the motion for further relief and asked for clarification as to whether the court intended to deny the motion for further relief by its order of January 20th. April 7, 1965, the court granted the motion for clarification declaring that the motion for further relief was denied, as it sought to change the basic structure of the desegregation plan.

A hearing was set for April 20th to determine if there was any necessity for an evidentiary hearing to reexamine the ruling on the motion for further relief. April 20th, the court reaffirmed its denial of the motion for further relief stating that no evidence could persuade the court to reorganize the desegregation plan and evidence to that end "would just be an idle gesture regardless of the nature of the testimony." Plaintiffs appealed to the Court of Appeals which remanded the case on January 18, 1967 for consideration in the light of its decision in United States v. Jefferson County Board of Education, 372 F 2d 836. This was tantamount to a reversal. It was not until May 1, 1967 that Judge Carswell finally entered a Jefferson decree, requiring the school board to follow the standard as enunciated by the Supreme Court. At the time of filing the motion for further relief, in early 1964, there were already at that time, several Fifth Circuit and Supreme Court decisions entitling plaintiffs to the relief sought.

Nor has Judge Carswell's failure to follow the dictates of the Supreme Court in civil rights cases been limited to the distant past. In 1968, the Supreme Court ruled unanimously that school desegregation plans must offer a realistic promise of immediately integrating the schools in order to comply with the school boards duty to eliminate the racially segregated school systems created under segregation laws and practices. The Court particularly criticized the freedom of choice method of school desegregation then in widespread use throughout the South. Green vs. County School Board of New Kent County, Val, 391 U.S. 430 (1968). Black plaintiffs filed motions for relief consistent with Green in the three school cases pending before Judge Carswell. Despite the Green decision, Judge Carswell entered orders allowing the continued use of freedom of choice in all three cases. The Court of Appeals unanimously reversed all three of Judge Carswell's rulings. Wright vs. Board of Public Instruction of Alachua County, Fla.; and Youngblood vs. Board of Public Instruction of Bay County, Fla., (both decided en banc sub nom Singleton vs. Jackson Municipal Separate School System 5th Cir. No. 26285 Dec. 1, 1969). Steele vs. Board of Public Institution of Leon County, Fla., No. 28143 5th Cir decided Dec. 12, 1969.

In his entire record as a district court judge, Judge Carswell was affirmed in only one of the seven appeals taken from his rulings on civil rights cases-his denial of relief to a Negro teacher seeking the opportunity to teach in an integrated school. Knowles vs. Board of Public Instruction of Leon County, Fla., 405 F. 2d 1206 (1969). We submit that this record evidences a strong judicial bias against blacks asserting civil rights claims which should not be rewarded with confirmation as an Associate Justice of the Supreme Court.

In recent times, we have become increasingly aware of the importance of scrutinizing a judge's conduct off the bench as well as his judicial craftsmanship. In this regard, Judge Carswell must be found severely deficient.

In 1948, Mr. Carswell, while seeking public office, appealed for public support on the basis of some of the most blatantly racist assertions imaginable. His speech contained the following remarks:

"I am a Southerner by ancestry, birth, training, inclination, belief and practice. And I believe that segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed and I shall always so act.

If my own brother were to advocate such a program [of integration], I would be compelled to take issue with him and to oppose him to the limit of my ability.

I yield to no man, as a fellow citizen, in the firm, vigorous belief in the principals of white supremacy, and I shall always be so governed. (Taken from New York Times, January 22, 1970, p. 15)

More recently in 1956, while serving as United States Attorney, Judge Carswell participated as an incorporator, in the conversion of a municipally controlled golf club to a privately controlled country club which excludes blacks from membership or guest privileges.

A person with the types of segregationists personal involvements and demonstrated judicial hostility to blacks is simply not suited to sit on the nation's highest court. Surely in 1970 a non-white litigant should not be forced to plead his case before a Supreme Court which includes a jurist who has made and acted upon such blatant racial assertions.

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. Its impact and influence transcends administrations to determine and characterize whole eras of our history as a people. 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 all together 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 whiteafford 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. It was with the law that the racist architects of segregation built a Jim Crow society which is still in tact a decade and a half after Brown vs. Board of Education and more than a century after the Emancipation Proclamation.

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 United States 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, world-wide, 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 United States Supreme Court. Thank you.

Senator KENNEDY. Thank you very much.

Mr. CLARK. Thank you.

Senator BURDICK. Senator Thurmond.

Senator THURMOND. Thank you, Mr. Chairman. No question.
Senator BURDICK. Senator Cook?

Senator Cook. No questions. Thank you for appearing.

Senator BURDICK. Senator Mathias?

Senator MATHIAS. I would like to thank Dr. Clark for his conclusive testimony. It is very impressive.

Senator BURDICK. I believe that I have just a few questions.
Mr. CLARK. Certainly.

Senator BURDICK. You referred to some situations where you deemed Judge Carswell had decided wrongly but that for various reasons there was no appeal taken, so that we had no judicial determination whether he was right or wrong?

Mr. CLARK. That is correct, and indeed perhaps I shouldn't have referred to that.

Senator BURDICK. What appeals did you take during your experience down there in Florida? Can you name the cases? Mr. CLARK. Yes.

Senator BURDICK. Do you have them in the record?

Mr. CLARK. I don't remember them all, but Singleton v. The Board of Commissioners of State Institutions, Steele v. Board of Public Instruction of Leon County. I am not sure but the Steele case might have gone up twice. And I was involved in the Augustus case, but I was not included on the brief at that time. I did research, but I had not been admitted to the bar.

Senator BURDICK. These two you handled, though?

Mr. CLARK. Yes, in Singleton and Steele, I was the prime lawyer. Senator BURDICK. How far did those cases go?

Mr. CLARK. Singleton went to the court of appeals, and Steele went to the court of appeals.

Senator BURDICK. And what whas the result?

Mr. CLARK. In Singleton, Judge Carswell was reversed. In Steele, so much time had gone by that the court had gone beyond even what I was requesting in my early relief in 1964, and they remanded the case and ordered the judge to revise the order in the light of the Jefferson case, which occurred at 372 F. 2d 836, but during the entire course of the proceedings from 1964 until May of 1967 there was absolutely no move made with respect to the court order in that case. Senator BURDICK. The Singleton case was reversed?

Mr. CLARK. That is right.

Senator BURDICK. Are there any other cases?

Mr. CLARK. As I say, I worked on Augustus and that was reversed. Senator BURDICK. And this is in your full statement, is it?

Mr. CLARK. That is right.

Senator BURDICK. Are there further questions?

Senator MATHIAS. Mr. Chairman, just one further thing, following up the question that you raised.

Senator BURDICK. Proceed.

Senator MATHIAS. You say there were a number of motions that, for lack of money, time, or people, you had to let go by the board. Can you estimate the number?

Mr. CLARK. It would be a loose statement, but I would say that, given the fact that I handled about nine or 10 cases in his court, and we were constanly trying to get revisions of the segregation plans, it must have occurred maybe 10 or 12 times, something like that, in which I took no appeal, so perhaps it is not appropriate to comment, but I felt that the judge had ruled against us on subsidiary issues of law, and it was clear that we had a right to get the relief which was requested.

In many instances, it was questions about the scope of discovery, how much could we inquire into the extent of teacher segregation, and the judge would cut off or limit the scope of the inquiry, things like that.

Senator MATHIAS. Were these matters which you felt were substantial?

Mr. CLARK. No.

Senator MATHIAS. Or would they have had an ultimate impact on the outcome of the litigation?

Mr. CLARK. They had an impact of slowing down litigation, but we had to make judgments in terms of priorities, so that if we felt that there was a major impedient to be created by a decision, then we took an appeal.

For instance, if a complaint were dismissed, which meant we would get no relief whatsoever, then in those instances we would take an appeal, but if it simply meant you would lose 6 months, or even sometimes a year, then we sometimes did not take an appeal.

Senator MATHIAS. Your feeling is that, taken as a body, that this amounted to a dilatory tactic?

Mr. CLARK. That was my impression, that that was the effect of it. Senator MATHIAS. If you had beeen counsel for a large corporation with a big legal staff and plenty of money, would you have advised appeal?

Mr. CLARK. Then my testimony might here have gone on all day. Senator BURDICK. Any other questions?

(No response.)

Senator BURDICK. Thank you.

The next witness will be Mr. Thomas Harris. I presume you have to be sworn, Mr. Harris.

Do

you swear on this matter before the committee that you will tell the truth, the whole truth, and nothing but the truth, so help you, God?

TESTIMONY OF THOMAS E. HARRIS, ASSOCIATE GENERAL COUNSEL, AFL-CIO; ACCOMPANIED BY LAURENCE GOLD, ATTORNEY, AFL-CIO

Mr. HARRIS. I do. My name is Thomas E. Harris, associate general counsel of the AFL-CIO, and I appear here for the purpose of presenting the statement of our president, Mr. George Meany.

Mr. Meany is out of the city at this time. Accompanying me is Mr. Laurence Gold, who is one of the attorneys for the AFL-CIO, and who did some of the legal research which is reflected in this presentation.

The AFL-CIO opposes the confirmation of Judge G. Harrold Carswell as an Associate Justice of the Supreme Court of the United States. We do not do so because we view Judge Carswell as antagonistic to the interests of organized labor, narrowly conceived. For our review of his opinions indicate that he does not have a record in labor cases sufficiently extensive to permit a considered judgment. Rather the premise of our opposition is that this nomination is based exclusively on calculations of partisan political advantage, and was made without regard to professional or judicial merit. We find such a process of selection a direct and immediate threat to the status of the judiciary as a branch of Government equal in origin and title to the executive and the legislative branches.

This nation has chosen to entrust greater responsibility to our Supreme Court than any other. The Court has the final power to set the meaning of the Constitution, and of major pieces of legislation which touch vital conflicting interests. Consequently the effects of its judgments are often of the greatest practical impact. Moreover, as Prof. Archibald Cox has recently reminded us, the Court's "opinions are sometimes the voice of the spirit telling us what we are by reminding us of what we may be. But while the opinion of the Court can help shape our national understanding of ourselves the roots of its decision must be already in the Nation. The aspirations voiced by the Court must be those the community is willing not only to avow but in the end to live by."

Thus the Court's task is one of extreme difficulty and sensitivity. A Justice must, therefore, possess great depth and breadth of knowledge, profound understanding and complete self-discipline and detachment. If he does not have these qualities, experience demonstrates that the results he reaches will tend to be an unmastered reflection of personal inclination rather than an attempt to capture the essence of right season. In the light of the nature and importance of the Supreme Court's role, and the threat to the public interest posed by a Justice whose qualifications are incommensurate with his responsibilities, the only guarantee sufficient to safeguard the confidence of the people is a nominee of extraordinary stature a man who has demonstrated the ability to live greatly in the law. It is plain that Judge Carswell does not meet this standard.

Can it be said that Judge Carswell is a great scholar of the law; a present day Holmes? The answer is "No." Judge Carswell has never published a scholarly article or book.

Can it be said that Judge Carswell was a prominent figure at the bar prior to his elevation to the bench; a present-day Brandeis? The answer, again, is "No." Judge Carswell has characterized his private practice of law as "a just struggling along proposition."

Can it be said that Judge Carswell has proved himself, through the discharge of political responsibilities of the highest order; a present-day Hughes? The answer, again, is "No." His one political campaign, a losing one, was characterized by a racist stand that the judge has felt compelled to state he repudiates. His service as the U.S. attorney for the northern district of Florida appears, so far as we can ascertain, to have been competent. But that position is not a major one; basic policy is generally made in Washington and critical cases are usually tried by the larger U.S. attorney's offices. And there