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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. I 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.

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 disap, pointing. 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 talking now about the general run of contract, of tort, of Federal jurisdiction, of tax cases, the run of cases which a district judge has before him. I will have a special word in a moment for the particular areas of judicial concern to which so much testimony has been given.

One element which concerned me as I read his opinions was a repeated use of dispositive techniques which avoided hearings. The motion for summary judgment granted, the striking of the pleadingthese are techniques which properly used can be extremely helpful in terms of economy of judicial time. But where overused quite obviously they have the effect of frustrating the litigation, the actual litigation with live witnesses of real issue.

And then I saw the same theme emerging in the civil rights cases and in the habeas corpus cases to which considerable attention has been paid. The Tallahassee Theater case, for example, which Judge Carswell found presented a wholly inadequate complaint, one not worth pursuing to litigation, only to be reversed by the Court of Appeals for the Fifth Circuit-found it almost a classic statement of a conspiracy to deprive plaintiffs of their constitutional rights.

In the field of habeas corpus, not much has been said about this but it happens to be an area of special professional interest to me, I was particularly struck by failures there by District Judge Carswell to hold hearings in the face of allegations which plainly, so it seemed to me, would if substantiated constitute denials of fundamental principles of due process of law.

I make this point particularly in the light of an admonition, a very important admonition I think which Senator Hruska put to us earlier today, that in judging a judge, one must in fairness judge him in the light of the law as it stood at the time he decided, not in the light of our later, more comprehensive notion of what the law should have been and later became.

In the light of that standard, what the law was at the time the cases were before it, I submit there is very little way of explaining Judge Carswell's successive decisions in two habeas corpus cases, the Dickie case in which there was a reversal in 345 F. 2d 508, and Baker r. Wainright, again a reversal at 391 F. 2d 248. Both of these cases, though I have characterized them as habeas corpus cases, to be more precise were applications by Federal prisoners under section 2255 of the United States Code for release from custody on the ground that they had not had counsel. I misspoke myself, if I may, Mr. Chairman, with the first citation. It should have been the Meadows case, 282 F.2d 942 and the Dickie case, 345 F.2d 508.

These two cases were virtually identical. In both cases a Federal prisoner alleged that he had pleaded guilty to a Federal information, and waived counsel at a time when he was mentally incapacitated. In the Meadows case Judge Carswell dismissed the application without a hearing. He was reversed by the Court of Appeals of the Fifth Circuit in 1960, 282 F. 2d 942.

In the Dickie case, virtually the same application was made to him by another Federal prisoner. Again, and years had passed, Judge Carswell denied the application without a hearing and the fifth circuit reversed, 5 years later, 345 F.2d 508.

I put those cases to the committee in the very terms in which Senator Hruska asked us to consider the judge's handwork. How did he

deal with the problem in which he knew the existing law because the existing law had been made for his circuit by reversal of his own prior decision? Comparable cases which I find of particular difficulty are Baker v. Wainright to which I referred, 391 F. 2d, Brown v. Wainright in 394 F. 2d. There were cases involving, the first of them involving lack of counsel on appeal of a State court conviction. No hearing was held by Judge Carswell, notwithstanding the fact that the U.S. Supreme Court had years before, as the fifth circuit pointed out, said repeatedly this was a constitutional requirement.

Brown v. Wainright was a confession case testing the voluntariness of a confession. Harris v. Wainright at 399 F. 2d raised questions of the competence of the applicant to stand trial and whether indeed he had been sane at the time of the alleged offense. In none of these cases did Judge Carswell hold a hearing. Each time he was reversed by the court of appeals and a hearing directed.

If the committee please, these are cases perhaps more modest in dimension than the civil rights cases to which much attention has properly been given. The constituents of habeas corpus cases are not people of influence. They are many of them ignoble, unworthy by the ordinary standards of our market. But they are people to whom our Constitution owes vindications of its principles. It is only if the rights of the worst of us are protected, the New York Court of Appeals pointed out in the Gitlow case almost half a century ago, that the rights of the best of us will survive.

And in these instances, a district judge, so it seemed to me, was failing to follow clear mandates of the court above him in failing to explore applications plainly alleging serious constitutional deprivations.

Before I leave these cases I would like, if I may, to say a word hopefully to clear up a problem which seemed to me to obscure much of this morning's discussion with respect to removal procedure. I gathered it was the thrust of Senator Hruska's questions that in his understanding a district judge had to approve a removal application. With all deference I think that is not the case. Removal under the federal system is an automatic process. Removal is effectuated when the lawyer files the paper of removal. There is nothing the district judge has to do at that stage of the litigation. The district judge's office with respect to removal comes only if there is an application to remand the case to the State court, and the issue so much discussed this morning of the procedure followed in one of the cases about which Mr. Lowenthal testified, the issue is not, I submit, settled by Senator Hruska's observation that the fifth circuit's Peacock and Rachel decisions were later overturned by the U.S. Supreme Court.

If one were following out that problem as to whether removal were proper in the case described by Mr. Lowenthal, that is to say whether a district judge should have remanded those cases, if one were pursuing that legal issue, one would be exploring a very subtle problem, and I don't offer you any firm judgment on the result one way or another, very subtle problem as to whether the case which Mr. Lowenthal was seeking to keep in the Federal court was closer akin to the Rachel case than the Peacock case, two cases decided by the Supreme Court of the United States at the same time.

A plausible argument certainly could have been made that this was of the Rachel variety. But I think the critical point, if I understand

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the concerns which Mr. Lowenthal and those associated with him have, was that Judge Carswell, with respect to that very difficult problem, even more difficult perhaps at the time because the Supreme Court had not yet thrown light on the area, that Judge Carswell, when there was no application for remand before him, remanded the cases on his own motion and without a hearing, and at a minimum the issues tendered by a properly filed remand motion were serious legal issues which should have required a conscientious hearing; just as indeed the habeas corpus cases and some of the civil rights cases to which I have referred, which the judge disposed of on the pleadings or by summary judgment only to be reversed later, were cases which required a hearing.

I submit to the committee that in nothing that I have read of the judicial work of the nominee are there any signs, and I say this with great deliberation, aware of the importance of what I am saying, are there any signs of real professional distinction which would arise one iota out of the ordinary.

On the basis of the nominee's public record, together with what I have read of his work product, I am forced to conclude that the nominee has not demonstrated the professional skills and the larger constitutional wisdom which fits a lawyer for elevation to our highest court.

I am impelled to conclude, with all deference, I am impelled to conclude that the nominee presents more slender credentials than any nominee for the Supreme Court put forth in this century; and this century began, as I remind this committee, with the elevation to the Supreme Court of the United States of the Chief Justice of Massachusetts, Oliver Wendell Holmes.

If I am right in what I have said, or if I am even close to right, and whether I am close to right I think itself probably requires, in deference to the judge himself, far more study than I myself have had a chance to do in a very limited time of his judicial work, I am only testifying from what I have read, but if I am close to right, I suggest that in this setting this committee must consider carefully the implications of appointing to the Supreme Court a judge known not to be zealous, again to use Mr. Graham's understatement, not to be zealous about civil rights; for it begins to appear, I submit, that what distinguishes this nominee from other southern Republicans the President might have put forward, and I cite the examples which Mr. Harris gave, Judge Brown, Judge Wisdom, with them I might rank Judge Frank Johnson of Alabama, what distinguishes this nominee from judges of that caliber is on the one hand a particular form of judicial conservatism, of which the trademark is the nominee's lukewarmness with respect to the enforcement of the guarantees of the Bill of Rights, not alone but particularly in the Rachel field, and on the other hand the nominee's far less substantial professional qualification for a place on our highest court.

In this context I would ask the committee to address once again the significance of the nominee's now notorious speech of 1948, a speech which he, I am happy to say, has forthrightly repudiated. I do not think, I would add that I have never thought, that the 1943 speech standing alone irretrievably disqualified the nominee, but what that speech did do was to sharpen the question which this committee

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