notwithstanding his efforts and qualifications. I just wonder how much we are seeing history reenacted in this nomination. Mr. POLLAK. I hope the record is clear, Senator, that with respect to Judge Parker I thought him indeed a very able judge. If there was something in what you just said which suggested that perhaps Senator HRUSKA. He rendered a number of opinions with which perhaps you did not agree and you would not go to the extent that I went in describing him as an excellent and a brilliant judge. It was that that I referred to. Mr. POLLAK. I thought he was a very able judge, of very considerable distinction. I have long entertained doubts whether it was not a great mistake to fail to confirm Judge Parker's nomination, and indeed in one respect I think one aspect of that debate illustrated something, a point which you made earlier today, that one ought to look at a judge's work in terms of what the law was at the time, because I believe it to be true that Judge Parker was unfairly charged with innovation in a labor injunction case in which he was merely following the applicable Supreme Court precedent, so that Judge Parker's case has always illustrated that very pointed proposition which you put to us earlier today. Senator HRUSKA. Innovation in what respect, in respect to Mr. POLLAK. As I recall the debate over Judge Parker, many of those who charged that he was antilabor used as evidence an opinion of his in the circuit court which was an opinion upholding a labor injunction, or directing the granting of such an injunction, and that decision of his was one which in terms of the applicable Supreme Court law at the time was simply a proper application of what the Supreme Court had said, so that to fault Judge Parker in that respect was to fault him for doing exactly what a lower court judge is supposed to do. I had commented in your absence, Senator Hruska, on the fact that you made the point to us, the admonition, that in evaluating Judge Carswell we should look at the law as it stood at the time he made his decisions. It seemed to me that in the habeas corpus field I found him departing from clearly enunciated standards at the time he was making his decisions, and I also addressed myself to the problem of removal and remand which had concerned you so much before, but I do not mean to rehearse that further now. But I did want you to know that when you were away, Senator, I was addressing myself to some of your concerns on that score. Senator HRUSKA. Thank you very much. You have been helpful to the committee. Senator THURMOND. Judge Pollak, you are of course welcome here. I was surprised at one of the statements you made if I understood it correctly. Did you say you considered Judge Carswell the least qualified man to be appointed to the Supreme Court in the history of the country or just how far back did you go? Mr. POLLÁK. My cutoff point, Senator, was back to the beginning of this century, 1900. That takes us back to the appointment of Justice Holmes. Senator THURMOND. Do you know Judge Carswell personally? Mr. POLLAK. No, I do not. I am speaking wholly on the basis, as I indicated to Senator Hruska, of what I have read of his work product and of what I have heard of the testimony of those who seem to have more direct knowledge. Senator THURMOND. You are judging from what the witnesses have said today, that is from what you heard in testimony today? Mr. POLLAK. Well, I have the advantage happily of reading some of the testimony by Professor Van Alystyne, who has I think read a good deal more. Senator THURMOND. On what basis? You have considered what the witnesses who have testified here against him have had to say and judged him, at least partly, on that basis? Mr. POLLAK. In part. For example, obviously I do not take uncritically every kind of unrepudiated criticism that is made of any man, but two of those who have had there are two kinds of testimony I think that have come to you, Senator. There has been the scholarly testimony of those like Professor Van Alystyne and Professor Orfield, who have looked at a great deal of his work. Now I am not acquainted with Professor Orfield. I am acquainted with Professor Alystyne and his work, and I know the kind of respect it deserves. And I have had some opportunity, some limited opportunity, to confirm his impressions by reading a number of Judge Carswell's opinions on my own, though as I acknowledged to Senator Hruska it is of course only a fraction of the whole matter. Beyond that there has been testimony from lawyers who have had by experience before Judge Carswell some personal basis for seeing him in action as a judge. Now I would be very chary in general about estimates by counsel of judges they appear before, especially since I am conscious, as one who has occasionally been in court, that when a judge decides against you, you do not always have the most charitable view of him. But it happens that both Professor Lowenthal and Professor Clark are lawyers whom I know, and know well, and admire and know the integrity of, and know the standards of, so their views with respect to how they have been treated, or how they see causes treated, issues treated, in court seem to me views that bear very great weight. But of course I would be first to say that if there is another perspective to be looked at, if there is conflicting testimony with respect to that aspect of the judge's work, that should be brought to this committee's attention. Senator THURMOND. When did you first decide to come here and testify? Mr. POLLAK. Somewhere between Thursday and Friday last, Senator. I had been reading the papers and was being more and more distressed, and then when I saw my friend and former colleague Professor Van Alystyne had testified, I tried to get in touch with him to see if I could get a copy of his statement. Senator THURMOND. Did someone suggest you come? Mr. POLLAK. In the first instance the person who suggested it was my wife. In effect she said, if you feel what happens to the Supreme Court is important, and you have got doubts, don't you think you should tell somebody? Senator THURMOND. So you did not plan to come until after some of the witnesses had testified? Mr. POLLAK. That is correct. Senator THURMOND. So you evidently are basing, as you say, your opinions about Judge Carswell now on the basis of what the witnesses have had to say about him, and those who testified against him primarily? Mr. POLLAK. Senator, that is important, true, but what is also true is that I have been able his biography I take it is a matter of public record, but I have thought that in fairness to the committee, if I was going to say anything worth your listening to, and in fairness to myself, and in fairness to the judge, I also should attempt myself to read enough of his work so that I could get at least some sense as to whether indeed his work product was of the essentially pedestrian character which was attributed to him, and whether it was true that in the particular areas with which he has been attacked as being inadequate in the civil rights area, and the related area of habeas corpus, whether I concur in that judgment, because these are fields, these happen to be fields in which I have done some work, and my own direct reading of the judge's work product in those areas confirms for me that this isI do not enjoy saying this, but that it is second rate. Senator THURMOND. You of course know that he has a very fine record in college, that he was a successful practicing attorney, that he was a distinguished U.S. attorney, he was a distinguished circuit judge and now has made a good record on the circuit court of appeals. You are familiar with his record, aren't you? Mr. POLLAK. Senator, you have read some of the characterizations of his career. I think he himself did not characterize his practice as a very extensive one. He was in private practice as I recall only a few years. He graduated from law school in 1948 and became U.S. attorney I think 5 years later. He was in Governor Collins' law firm for a while and then formed his own small firm. Senator THURMOND. That would not make too much difference, would it, if we had a law professor who had been appointed to the Bench who had not had any practice? Mr. POLLAK. Indeed that is true with respect to Senator THURMOND. And so that would not be too much against him? Mr. POLLAK. I am trying to assess the way you have put the matter to me. I thought you had said that it was a distinguished private practice. I think it was a very brief period of private practice and as a junior lawyer. I do not say it in criticism but I do not think anything important can be made out of it in one way or another. Senator THURMOND. I said it was a successful practice and distinguished service as a U.S. attorney. Mr. POLLAK. I have no way of characterizing that. Senator THURMOND. It would not make any difference, the matter of adjectives if they were all good. Mr. POLLAK. I know nothing about his service to the Senator THURMOND. You are mostly expressing an opinion on this man because some of your friends have testified, have given testimony that indicates to you that he is not qualified for the position, but to go so far as to say that he is probably the least qualified man since the 1900's is going a very long way, don't you think? That is 70 years, suppose someone would say about you that you are the least qualified man since 1900 to be dean of the law school at Yale University, how would you feel? Mr. POLLAK. Well, I think that would probably be a reasonably good estimate. Actually there have been fewer of us and I can make that comparison fairly readily, and I certainly cannot put myself Senator THURMOND. Did you say you want to admit to that statement? Mr. POLLAK. But I said what I said with deliberation and deference, and I would be glad to go back with you through the men who have been named to the Supreme Court. We could work our way backward, and see the level of Senator THURMOND. You have been testifying a long time and we are about ready to get through, but it seems to me you made a very exaggerated statement, and it seems that your intense zeal-have you ever been called a zealot of civil rights? Mr. POLLAK. I cannot recall anyone offering me that before. Senator THURMOND. It seems you are showing intense zeal in that field, together with some of the other lawyers who were volunteer lawyers down there in the same field may have warped your mind a little bit on this subject. Mr. POLLAK. Senator, I think it is right for you to apply a substantial discount to what I say in terms Senator THURMOND. I am not trying to discount you. You have got a right to say what you want to. Mr. POLLAK. No, no, I understand. Senator THURMOND. But here you are trying to block a man from the Supreme Court who has a fine record, who has decided labor cases both ways, civil rights cases both ways, other cases both ways. He has had a diversity of practice. He has handed down a diversity of opinions, and I am just wondering if you really feel when you reflect on it that down in your heart you really do him justice? Mr. POLLAK. Senator, I acknowledge, and that is why I wanted it to appear on the record, that I happen to have in some areas of the public law very strongly held views, most particularly I believe very strongly in the enforcement, however much this is a latter-day enforcement, of the provisions of the 14th amendment which have fallen for so long into disuse. I want this committee to know that I have those constitutional biases in assessing any of my views, and yet I have come before you because my field is constitutional law. I have worked with the Court, this may sound megalomaniac on my part, but I have worked with its work ever since I graduated from law school. My first job was law clerk to the late Justice Rutledge, so that it was my privilege to spend a year there seeing Justices at close range, hearing great lawyers argue great cases, and I thought I knew what made a Judge of the U.S. Supreme Court from what I saw of that group of distinguished men, and it is that kind of sense of critical importance of the job those men do, I am talking now about judges with some of whom I found myself frequently in very profound intellectual and philosophical disagreement, but it is in terms of the importance of their mission and the absolute indispensibility of the highest order of professional competence and constitutional insight, it is against that kind of background, Senator, that I offer you what I agree may sound like exaggerated views, but I think back to the kind of record of demonstrated achievement which judge after judge had, whether it 40-399-70-17 was Senator Black or Senator Byrnes or Judge Cardozo or Mr. Brandeis, Governor Hughes, Judge Stone who had been Attorney General, Senator Sutherland, judge after judge were men who came to the U.S. Supreme Court capping a public career of extraordinary distinction, and that seems to me the standard which this committee is required to urge upon the Senate to uphold in this case. Senator THURMOND. I have no more questions. I must say that even with your intense zeal in the civil rights field and your sympathy for the witnesses who testified, and basing your opinion chieflly upon what those witnesses had to say, I am a little disappointed that you would go so far as to express the strong opinions that you have about Judge Carswell. Thank you very much. Thank you, Mr. Chairman. The CHAIRMAN. Thank you, sir. You are excused. Mr. PROCTOR. I believe you have been previously sworn. Proceed. Senator Kennedy has some questions. Senator KENNEDY. Mr. Proctor, would you care to be seated. You appeared before the committee a few days ago, did you not, to testify? TESTIMONY OF JULIAN PROCTOR, TALLAHASSEE, FLA. Recalled Mr. PROCTOR. That is correct. The CHAIRMAN. Pull those mikes before you. - Mr. PROCTOR. Pardon me, I would like to get a few notes here, Senator. It has been a long day and I might be able to speed up things a little bit if I have these before me. All right, Senator. Senator KENNEDY. I was wondering if you could review with us very briefly what happened when the municipal golf course in Tallahassee became a private golf club. Could you give us the events leading up to that transition? Mr. PROCTOR. Senator, yes, sir, I will do it very briefly. I would like to bring out at the very beginning that the Tallahasse Country Club was organized as a private country club back in February of 1924. It was turned over to the city of Tallahassee in August of 1955, because of financial conditions, and it was turned over to the city at a very nominal charge, because The CHAIRMAN. You mean 1935. Mr. PROCTOR. 1935, I beg your pardon, sir. Because of the very little interest, the few members were unable to carry the financial burden. There was a clause in the deed, when it was transferred to the city of Tallahassee, that the original country club had the right to lease the property back, should the city ever decide to lease or dispose of the property. In September of 1952, the stockholders of the original old Tallahassee Country Club reorganized and requested the return of the club because of dissatisfaction with the operation of the club. The clubhouse itself was pretty well rundown. It was an old, wooden structure. The golf course needed improvement, and because of that dissatisfaction and the desire of those members and golfers in, and around Tallahassee who wanted a new clubhouse and a new golf course. Senator KENNEDY. When was that? That was in what year? |