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 a 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-CIO 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. 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 help you God? 40-399-70-16 TESTIMONY OF LOUIS H. POLLAK, DEAN, YALE LAW SCHOOL Mr. POLLAK. I do. Mr. Chairman, my name is Louis Pollak. I very much appreciate the opportunity extended to me to speak with respect to the nomination of Judge Carswell. I am a lawyer, a member of the bars of Connecticut and New York, and of the Supreme Court. I have been for the past almost 15 years a teacher of law at Yale and for the last 4 years I have been dean of that law school. I am a member of the board of directors of the NAACP Legal Defense Fund, which reflects my longstanding interest in constitutional law and particularly the constitutional law which relates to the protection of equal rights, and in addition to being a member of other bar associations, I am chairman elect of the section of individual rights and responsibilities of the American Bar Association. But my appearance here, I must of course emphasize, is entirely individual. Î speak for no organization at all, nor do I speak for the school with which I have the privilege of being associated. This is an entirely personal presentation, and it is a personal presentation which arose out of my own professional concern and citizen concern for the development of our constitutional law under the aegis of that extraordinary innovation in government which is the U.S. Supreme Court. When the President nominates and the Senate confirms an Associate Justice of the U.S. Supreme Court, it does an awesome thing. The President and the Senate in combination are entrusting a fair measure of the Nation's future to the man or woman, one can hope that in due course it may be a woman, who sits on that Court and participates in the shaping of our fundamental institutions. And so the question I urge upon this committee, the question before this committee and ultimately before the U.S. Senate, with respect to every nominee for the highest court in our land is inescapably in the last analysis is the nominee a lawyer qualified or giving promise of being qualified to sit on the Bench on which Mr. Justice Black now sits, on which Frankfurter and Warren sat, on which Hughes and Holmes and Brandeis sat, Field and Miller and Taney and Marshall. That is the question which must be asked with respect to a nominee for the highest court in the land. 9 When I first learned of the nomination of Judge Carswell, I must confess some astonishment that a lower court judge, who after a period on the district court of some years and so very brief a passage through the court of appeals, was now to be placed on the U.S. Supreme Court, a course of elevation that I had to think back some time to find an analogy for, and the only analogy in our recent judicial history was the not very encouraging one, and I say this with regret, of Mr. Justice Whittaker, whose passage through the court of appeals was equally brief and whose stay on the U.S. Supreme Court was disappointing. But with deference to Mr. Justice Whittaker, it must be said that he was a nominee who before he went on the Federal bench at all had distinguished himself greatly at the bar, as he is now again a leader of the active bar. With respect to Judge Carswell, from what little I knew of him at hearsay and from the press, there was no such background of demonstrated achievement whatsoever. One gathered from the newspapers, of course, that he had given a speech, a deeply deplorable speech which he now regretted, but there was nothing in the record that suggested that here was a lawyer and judge whose light had been hidden under a bushel not of his own devising. My concern at the nomination, for I felt maybe it was simply that I knew too little about him, was greatly heightened last week, Mr. Chairman, in reading press accounts of the testimony of scholars who happened to be men whom I know, and know well, and for whom I have the highest regard, who seemed to know at first hand, and from their acquaintance with the judge's work, that indeed the record was a very limited one; that indeed, as has been suggested by the testimony of Mr. Harris just before me, of Congressman Conyers before, that here was a nomination which was far more easily explained not on the basis of professional excellence but on the ground that here was a nominee who was a Republican and a southerner, and a Republican and a southerner marked in his judicial career by lukewarmness at best on the fundamental issues of civil rights. I believe Mr. Fred Graham of the New York Times has put it that the judge's opinions are marked by a lack of zeal with respect to civil rights. Now I urge upon the committee that I in no way object to a President giving weight in the selection of a judicial nominee to geographic and indeed political considerations, but one should add a Republican and a southerner to the Court by itself seems to me a continuity with what is certainly in our regular tradition of judicial appointment, and it is the kind of criterion of diversity geographical and philosophic which strengthens the Court when rightly applied, that is to say when rightly applied in the direction of appointing a man who at a minimum presents the highest professional qualifications and the kind of promise of performance on the highest court suggested by the ringing roster of those who have been the leaders of that Court. But when one adds to the criterion of Republicanism and southernism the criterion of lukewarmness on the greatest issue confronting our Nation and perhaps our world today, failure to meet which forthrightly has caused what are perhaps our most perplexing and profounding disturbing problems, then it seems to me we have to take a second look. It was at this point that the profound professional concerns of Professor Van Alystyne, Professor Lowenthal, what I had heard of Professor Clark's views, led me to feel that, arrogant as perhaps this seems, I wanted to come before this committee and express my deep concern. But also I felt that I owed it to this committee to make what assessment I could, in a very limited time, namely over this weekend, of as much of the judge's work as I could, and I have read for many hours some 4 or 5 years of the judge's cases on the district court running from 1969 back to 1965, to get a sense of the general flow of the cases he decides, not alone those in the highly controversial areas of civil rights, and the related areas of habeas corpus to which some attention has been paid at great length, and properly so, before this committee. I would report to you that on a canvass of the opinions which I have had the opportunity to read, and I don't begin to suggest that I have read the entire range of his work or indeed his opinions on the court of appeals, there is nothing in these opinions that suggests more than at very best a level of modest competence, no more than that, and I am |