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 v. 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, a 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

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 high

est 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 1948 speech standing alone irretrievably disqualified the nominee, but what that speech did do was to sharpen the question which this committee

and the Senate faces with respect to every nominee for the Supreme Court. Has the nominee given evidence of the highest level of professional and public responsibility, save only the Presidency, which lies within the gift of the American people? That is the question which is sharpened, put in sharper focus by the 1948 speech.

Here the question is sharpened in the sense that, confessedly, this nominee began his professional career with a set of beliefs wholly antithetic to the central purposes of our constitutional democracy. It might be possible to surmount such a handicap. There has been discussion by prior witnesses and by members of this committee of the example of Mr. Justice Black. Certainly a complete analogy does not lie. The Justice did have a connection with the Klan, but at very much the same time he was himself a lawyer emphatically and vigorously representing black citizens of his own State. More to the point, of course, before Justice Black was called to the Supreme Court of the United States, he had become a well-known figure of national consequence. There could hardly be doubt of what his basic principles were when he was appointed to the U.S. Supreme Court 33 years ago. One might, I suppose, go back to the elder Justice Harlan. That distinguished Justice was, it is hard to remember it but he was, an outspoken foe of the 13th amendment to the Constitution, and yet before the Justice came to the Court he too had become a figure, a great public figure of distinction, and one whose own public views were clearly transformed into commitment to and support of the fundamental principles of the post-Civil War amendments, and so he lived to be the Justice who dissented with such distinction in the civil rights cases in Plessy vs. Fergeson.

Can we find in the present nominee any comparable demonstration? To ask the question, as Mr. Chief Justice White is wont to say, is to answer it.

I wish the committee to understand that I do not question Judge Carswell's good faith in repudiating a speech of which he and of which all of us I am sure are ashamed. What I ask is, What symbolism would attach to Senate confirmation as Associate Justice of the Supreme Court of the United States of a lawyer whose later career offers so meager a basis for predicting that he possesses judicial capacity and constitutional insight of the first rank? What symbolism, I ask, and in answering the question I remind you of the dictum of the late Mr. Justice Jackson: One takes from a symbol what one brings to it.

I put it to this committee that if the nominee's unfortunate speech, and I say this advisedly, if that speech had been an attack on Jews or an attack on Catholics, his name would have been withdrawn within 5 minutes after the speech came to light. We are asked to ignore the speech he actually gave, a speech declaring in effect that America is a whites-only country. We are asked to ignore it as a youthful indiscretion, just the kind of thing one had to say if one wanted to get ahead in Florida politics vintage 1948.

I submit with all respect that to confirm the nominee on this record is to make a statement of a different sort. That lukewarmness to the rights embodied in the Constitution, and most especially rights of black people, is not just Florida politics vintage 1948 but American politics vintage 1970, and on that reckoning it is not Judge

Carswell who is accountable, not his good faith which is in question. What is called into account is the constitutional commitment of the American people today, and most particularly of the U.S. Senate, because it is in your hands, you as Senators of the United States. It is you who must choose whether to consent to this nomination.

One gets out of a symbol what one brings to it even if that symbol is our highest court, even if that symbol is the Constitution of the United States to which we all owe true faith and allegiance.

Thank you.

Senator KENNEDY. Thank you very much, Dean. We appreciate very much your comments on this. I know you have been here for a long day, and I want to tell you how much we welcome your remarks. You said that you are an officer of the Section of Individual Rights and Responsibilities of the American Bar Association, but you do not speak for the association or the section. Can you tell us why that section doesn't express itself on Supreme Court nominations if it has a strong opinion?

Mr. POLLAK. Well, I am a relative novice with respect to the constitutional dynamics of the ABA, Senator, but I believe that the section would not be regarded as having any standing to speak to an issue of judicial qualification, since there is a committee, Judge Walsh's committee, which reports, as I understand it, to this committee its views on that issue, so it would be essentially a jurisdictional problem.

Senator KENNEDY. Don't you think your section would be able to bring a rather different and unique point of view in terms of the qualifications of the nominee? Don't you think that would be valuable and helpful for members of this committee and the members of the Senate to have?

Mr. POLLAK. Well, if we were entitled to express a view, I would hope it would be a view worth your having. I do not for a moment though, Senator, I do want the record to be very clear on that, I do not for a moment want any confusion to arise with respect to my own agency in that matter. I am in no way speaking for the section or for any other member of the section. I have not consulted any other member or officer of the section with respect to my remarks, just as I have consulted nobody in the various other organizations or the university with which I am affiliated, in that sense.

I would think, and perhaps this is really more directly responsive to your question, I would think that there were many members, many individual members of the American Bar Association, and many individual attorneys not members of the American Bar Association, but certainly I can think of many in the association, whose views as to a particular nomination might well not correspond with the views which are formally rendered to you. I think that is perhaps all I should say with respect to that.

Senator KENNEDY. In your opinion, based upon your research and review of these cases, and given your own rather extraordinary background, and the fact that you are dean of one of the great law schools in our country today, are you prepared to tell us how you would characterize the judge's decisions in terms of civil rights issues?

Mr. POLLAK. You understand, Senator, that I am responding only in terms of the cases which I have read. I do not know the judge, and