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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-CİO, 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 is nothing to show that the judge, as opposed to the recently deposed U.S. attorney for the southern district of New York, was a pioneer in introducing novel and imaginative techniques of law enforcement.

Can it be said that Judge Carswell was a great U.S. district judge; a present-day Learned Hand? Once more the answer is "No." As Senator Hruska pointed out, "The role of the district judge is somewhat limited inasmuch as he is not a policymaker and he is bound to the decisions and rulings of the superior courts * * *"

Judge Carswell's record is replete with instances in which he breached this limitation by refusing to follow the decisions of the Supreme Court and fifth circuit in race relations cases. On the other hand, we have searched Judge Carswell's decisions with some diligence to find an instance in which he surmounted this limitation by writing an opinion that improved or clarified the law in a significant way. We have not found such an opinion nor has one been pointed out by the judge's supporters.

Finally, can it be said that Judge Carswell is one of the most distinguished of the approximately 90 sitting U.S. court of appeals judges!

Again, the answer must be “No.” Prof. William Van Alstyne of the Duke University Law School, a recognized scholar of constitutional law, who found Judge Haynsworth "an able and conscientious judge * *'* (whose decisions) even in instances where I could not personally find agreement private or professional with a particular result * * * had been arrived at with reassuring care and reason” stated that Judge Carswell's record reflected "a lack of reasoning, care, or judicial sensitivity overall * * * There is, in candor, nothing in the quality of the nominee's work to warrant any expectation whatever that he could serve with distinction in the Supreme Court of the United States."

Taking the comparison one step further, during the Haynsworth debate that jurist was characterized as a man “at the top of those eligible for consideration” from the fourth circuit. No one can so characterize Judge Carswell. He is one of our most junior appellate judges, having served for only

7 months, and he has written just over 50 appellate opinions in total. If we were to limit consideration simply to fifth circuit judges appointed by Republican Presidents, it is inconceivable that any observer of competence, other than one who believes obedience to the letter and spirit of Brown v. Board of Education is a disqualifying factor, would conclude that Judge Carswell is the equal, much less the superior, of Judges Wisdom and Brown, both of whom are truly distinguished moderates. And, of course, if the net were cast further and a cross section of lawyers who study the Federal Reporter were asked to select the 10 best Federal appellate judges, we are confident that Judge Carswell's name would not appear.

Since it is beyond dispute that the standard of excellence was not the administration's guide, the question becomes, What standard did it utilize? In order to preclude consideration of this question, the executive branch has maintained a discreet silence, and has pushed for a quick vote by the Senate. There have been no joint appearances for the television cameras, or press releases detailing the nominee's record. Given the paucity of the affirmative case for confirmation this is hardly surprising, but it cannot obscure the obvious—that the administration's sole guide in making its selection was its southern political strategy.

That strategy requires a relatively youthful nominee from the South, preferably a State in which the Republicans have made headway and have a good chance to make more, with a poor civil rights record and a good chance of confirmation. Judge Carswell meets the requirements of this standard perfectly. Indeed, there is no other standard which explains the choice. He is in his early fifties; Florida is one of the four States of the old Confederacy to have elected a Republican Senator; the Leadership Conference on Civil Rights had opposed his confirmation as a circuit judge on the ground that as a district judge he had been particularly hostile to the civil rights of Negroes; since he had served as a U.S. attorney prior to his confirmation as a district judge and owns no stocks or bonds there was little, if any, reason to fear conflict-of-interest charges; finally, the Senate had confirmed him as a court of appeals judge just 7 months ago.

The President has the powerful force of initiative in making a nomination to the Supreme Court. It is always to be hoped that he will utilize his favored position to further the national good by choosing a man who represents our best instincts as a people. When he does so he practices a politics of union that serves to strengthen our governmental system.

The standards of the southern strategy, on the other hand, are responsive to a politics of disunion. This nomination is a slap in the face of the Nation's Negro citizens.

It can only be considered to be the result of a studied attempt to find a Federal judge whose civil rights record is recognized by the Negro community to be even worse than Judge Haynsworth's was shown to be. The testimony of Professors Orfield, Van Alystyne, and Lowenthal and that of the Leadership Conference on Civil Rights analyzing Judge Carswell's decisions demonstrate this point. These decisions show that the judge's reprehensible 1948 speech was not an isolated anomaly disproved by subsequent acts, but a key to his basic point of view. That speech, it should be emphasized, was not simply an endorsement of the separate but equal doctrine of Plessy v. Ferguson, an endorsement which could perhaps be forgiven on the ground that it was based on the accepted legal doctrine of the day, but an endorsement of “white supremacy," a legal doctrine that had been repudiated in 1868 with the adoption of the 14th amendment.

It does not seem to us enough to lightly dismiss the judge's "white supremacy" statement as a youthful indiscretion committed two decades ago and now recanted, as the President did in his press conference. The judge, at 28, was no child when he voiced these repugnant views. He never repudiated them by word until the speech was exposed by an enterprising reporter and threatened his promotion to the Supreme Court.

We would, of course, be impressed if Judge Carswell, by his actions on the bench, had demonstrated his latter-day conversion. But his decisions, by which you should judge him, adhere more to his 1948 white-supremacy prejudices than to his suddenly announced 1970 views.

It is a slap in the face of those who recognize the concept, articulated by Senator Griffin, that “Under our Constitution the power of any President to nominate constitutes only half of the appointing: process. The other half lies with the Senate."

The rejection of Judge Haynsworth was not, we believe, simply a direction to the administration to choose any other undistinguished jurist it might unearth as long as he was not a wheeler-dealer. It expressed the Senate's view that, while the President was free to choose men of a conservative cast of mind, he should limit himself to lawyers and jurists of real achievement. It was a recognition that nominations based on the purely negative concept of disadvantaging certain groups in our society poison the well springs of the selective process. It was, in fact, a reaffirmation of the lessons of the abortive 1937 campaign to pack the Court—while the President is free to have the executive branch of his choice he is not free to have the Supreme Court of his choice. The administration's response can only be called a contemptuous show of force. It is an attempt to prove that the President's resolve to vindicate the prerogatives he claimed during the Haynsworth debate is such that further resistance is futile.

Finally, the nomination is å slap in the face of the Federal judiciary. It demonstrates a desire to reward those who failed in the task of making civil rights for all a reality, and to rebuke those who exhibited the courage to do what was both right and necessary during a time of crisis. It demonstrates a desire to downgrade the Court by making appointments a political plaything rather than the highest honor open to the legal profession. It is entirely fair to say, as the New York Times has done, that this nomination is "contempt of [the Supreme] Court.

Prior to 1932 the labor movement felt the brunt of a judiciary organized against it. The corrosive effects of years of "government by injunction” on the worker's confidence in the Federal courts have yet to spend themselves. That experience convinces us that judges inadequate to their task pose a powerful threat to our governmental system. We know of no safeguard other than requiring nominees of demonstrated excellence, men whose careers provide a basis for confidence in their judgment. We do know, however, that nominations that have no justification other than a narrowly partisan, divisive political strategy are certain to exacerbate this threat.

The administration has shown itself to be unmoved by these simple basic truths. But that is not the end of the matter. The President has only half the appointment power, the other half lies with the Senate.

It would be a wise use of that power to refuse to confirm. To fail to do so, and to allow a nomination that is a calculated political attack on the responsible Negro leadership of this country, would be a national tragedy.

The AFL-ČIO urges that this committee and the Senate refuse to confirm the nomination.

We thank you for this opportunity to state our views. Senator BURDICK. Thank you for your testimony. Senator Hruska! Senator HRUSKA. No question, Mr. Chairman, Senator THURMOND. No questions, Mr. Chairman. Senator BURDICK. I guess that is all. Mr. HARRIS Thank you. Senator BURDICK. Dean Pollak. Do you swear that the matters you testify to in this hearing will be the truth, the whole truth and nothing but the truth so heln

you God?

40-399–70—16

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