Mr. PROCTOR. The majority, yes. I do not know of any blacks. I do not know.

Senator KENNEDY. Is it further your understanding that if the course was a private club, which it was, under the Supreme Court decisions then, and even under then existing civil rights acts, that as a private club it did not necessarily have to be integrated?

Mr. PROCTOR. Would you repeat that question. I am not sure about that.

Senator KENNEDY. As a private club, the club did not have to integrate, did it, Mr. Proctor, under the Supreme Court rulings at that time, and as a municipal golf course it did have to integrate?

Mr. PROCTOR. Under the club as it was formed, it was open to the public. On July of 1957 the Capital City Country Club bought sufficient land from the city of Tallahassee, 10 acres to be exact, in order to build a new clubhouse and build the facilities that they desired. And also at that time it became the club started out as a profit organization, and after that submitted a petition for a nonprofit corpora tion under a new club. That took place January 1st of 1957. The club petitioned the court to change the name to the Capital City Country Club, and to become a nonprofit corporation. At that time it became a private club.

The CHAIRMAN. The judge's only interest in it, you fellows called on him for $100?

Mr. PROCTOR. That is correct.

The CHAIRMAN. He never attended any meetings. Did he know anything about the club?

Mr. PROCTOR. I would not know how he would other than what he read in the paper, because he absolutely never attended a meeting. He never attended one of the early meetings.

The CHAIRMAN. And then?

Mr. PROCTOR. And then he withdrew his membership less than 6 months after. Well, I guess it was about 6 months after he joined, before the stock was ever issued and before it became a club.

Senator KENNEDY. Mr. Proctor, if he read the newspapers, if he read the front page of that newspaper, he would understand from that article that has been included as part of the record, and which you referred to, that there was the formation of a new and private club, that there was also a club that that would be available for blacks, that the new club was going to be available to only "acceptable persons," and certainly I do not think it would be unreasonable to assume given the situation at that time, that acceptable persons would have a segregated connotation to it. And furthermore, if he read that article

Mr. PROCTOR. Senator, I would like to say that in trying to get a new club started like that, there are a lot of people who are approached as a civic duty and asked to contribute.

Senator KENNEDY. Further

The CHAIRMAN. Are you through?

Mr. PROCTOR (Continuing). To get a club started. I feel sure that that was probably and I know that is the reason Judge Carswell joined, because he is not a golfer. At that time his family, his children were not large enough to play golf, and we did not have facilities there that was an inducement for anyone to join the club. We were

trying to get something started, get a club started that we could enjoy and that would be an asset to the city of Tallahassee, and it was greatly needed. We also went to many others. Governor Collins was one. I think he mentioned here during his testimony that he was approached and probably had $100 invested and did not know what was going on. But Judge Carswell was never active other than the fact that he made a subscription by payment of $100 toward membership. Before the club was formed completely he withdrew his membership and got his money back.

Senator KENNEDY. As I understand it, the club itself, those initial incorporators did do at least one thing. That was to take over the lease of this land, did they not?

Mr. PROCTOR. That is right, the lease was assigned to this group, that is correct.

Senator KENNEDY. So they did function?

Mr. PROCTOR. Functioned to that extent, correct, but Judge Carswell was not functioning. His name was there.

Senator KENNEDY. No further questions, Mr. Chairman.

The CHAIRMAN. You are excused, sir.

We are going to recess until 9 o'clock in the morning. We are going to hear two witnesses from 9 until 11:30 and the hearings will be closed.

We have had requests over the weekend from a number of people who wanted to testify. They can file a statement up until Thursday of this week.

There will be an executive session of the Judiciary Committee at 11:30 tomorrow morning.

The committee is now adjourned for today.

(Whereupon, at 6:50 p.m., the committee was recessed, to reconvene at 9:00 a.m. Tuesday, February 3, 1970.)

The committee met, pursuant to recess, at 9: 10 a.m., in room 2228, New Senate Office Building, Senator Joseph D. Tydings presiding. Present: Senators Tydings (presiding), Ervin, Hart, Kennedy, Burdick, Bayh, Fong, Thurmond, Cook, Mathias and Griffin.

Also present: John H. Holloman, chief counsel, Peter M. Stockett, and Francis C. Rosenberger.

Senator TYDINGS. We will continue the hearings on Judge Carswell's nomination to be a Justice of the Supreme Court.

I would like to welcome before this committee Joseph L. Rauh, Jr., and Clarence Mitchell, whose illustrious background and biographical sketch needs no further mention.

TESTIMONY OF CLARENCE MITCHELL, LEGISLATIVE CHAIRMAN, LEADERSHIP CONFERENCE ON CIVIL RIGHTS

Mr. MITCHELL. Thank you, Mr. Chairman and members of the committee.

I must say that as a native of the State of Maryland, I feel especially happy to be before you Senator Tydings as acting chairman of the committee, and also before you Senator Mathias. I admire both of you greatly and I feel this is a wonderful opportunity to present our

case.

I would like to say before I begin, Mr. Chairman, that I have heard a number of reports which indicate that there are those who have thrown in the towel and it is assumed that this presentation is an exercise in futility.

I do not come here in that spirit. I come here in the spirit that this committee is still open to hearing what we have to say and that it will weigh what we present in reaching its decision.

I also believe that the Senate of the United States will take the evidence into consideration when it considers this nomination.

I would not take up the time of this committee if I thought that the result had already been determined and it was useless to present

our case.

Senator MATHIAS. Mr. Chairman, if I could interrupt the witness just very briefly, I would like to respond to his opening remarks and say that we welcome him here not only as a distinguished citizen of Maryland, but he and I have had an opportunity to do business together in the other body as well as here on a number of matters, and I have always found that the information that he brings to the

Congress is useful, dependable, and I know that on this occasion as on all occasions in the past it will receive the kind of consideration that its author merits.

Mr. MITCHELL. Thank you very much, Senator Mathias.

Mr. Chairman, on a procedural matter, I would just like to mention that ordinarily I try to save the time of the committee by summarizing my statement, but in this instance I have given considerable thought to this. I have tried to weigh its contents, and with your indulgence I would like to read it in full. I also would like to call attention to the fact that joining with me is Mr. Rauh, one of the most distinguished lawyers in our country, who is the general counsel of the Leadership Conference on Civil Rights, and at the close of my testimony I would appreciate an opportunity for him to follow immediately, because it is our arrangement that questions arising on legal matters that are included in this testimony would be answered by him.

I would like to just say that I have this brief statement about his background that I would like to read. He has been so deeply engaged in so many crusades for the public interest that people tend to lose sight of his remarkable scholarly attainments.

Mr. Rauh graduated from Harvard College in 1932 magna cum laude and first in his class. He served as a law clerk to both Justices Cardozo and Frankfurter, to whose seat Judge Carswell now aspires.

Mr. Rauh has argued many significant constitutional cases before the Supreme Court, and has written widely on the subject of human rights. I am sure all will agree that he is uniquely qualified to analyze the nominee's record before this committee.

Now my prepared statement begins.

Mr. Chairman and members of the Judiciary Committee:

I am Clarence Mitchell, director of the Washington Bureau of the National Association for the Advancement of Colored People, and legislative chairman of the Leadership Conference on Civil Rights. The NAACP and the Leadership Conference are opposed to the nomination of Judge G. Harrold Carswell to the U.S. Supreme Court.

It is not easy for one to appear before this or any other committee for the purpose of opposing a Presidential appointment to high office. Because he has been elected by the people of the United States, there is a proper and wholly understandable inclination of citizens to accept the President's recommendations on those who will carry out his policies and programs in the executive branch of Government. To some extent, the same attitude applies when a President makes appointments to the juducial branch of Government. However, there is a major difference. The executive branch appointees are usually for the duration of the President's term or terms in office. The judicial appointments are for the lifetime of the nominees and through such nominees, presidential policies may stretch far beyond the term or even natural life of a Chief Executive.

In these times the people have a right to demand that appointees to all of the courts, and most especially the United States Supreme Court, be scrutinized with great care. The people have a right and a duty to insist that the nominees be free from racial bias and also free from a record of advocacy or the practice of racial bias. The record of Judge Carswell is not free from the taint of racial bias. It is tragic that he is already a member of the Judiciary in the Fifth Circuit.

This tragedy will be compounded if he is approved for a place on the Supreme Court.

At three points in Judge Carswell's adult life he has elected to cast his lot with those who seek to deprive Negroes of first class citizenship. On each of these occasions he has chosen to take on the protective coloraton of the wrongdoers because that was the accepted practice in the area where he lived at the time. We do not challenge his right as an individual, whether as a technique of survival or because of personal beliefs, to consort with racists and advocates of segregation. We do challenge his right to sit in judgment in our Federal courts at any level when he joins those who seek to maintain a society in which some citizens are consigned to second class status simply because they are not white.

Judge Carswell's first opportunity to take a stand came in 1948 when he was a candidate for State office in Georgia. In order to understand the seriousness of what candidates were saying in that time it is necessary to look at the events which were then occurring. On December 5, 1946, President Harry S. Truman issued Executive Order No. 9808 establishing the President's Committee on Civil Rights. In issuing that Executive order the President said:

Freedom from fear is more fully realized in our country than in any other on the face of the earth. Yet, all parts of our population are not equally free from fear. And from time to time, and in some places, this freedom has been gravely threatened. It was so after the last war, when organized groups fanned hatred and intolerance, until, at times, mob action struck fear into the hearts of men and women because of their racial origin or religious beliefs.

Today, freedom from fear, and the democratic institutions which sustain it, are again under attack. In some places from time to time, the local enforcement of law and order has broken down, and individuals-sometimes ex-servicemen, even women-have been killed, maimed, or intimidated.

The State of Georgia was among those driven by strife created by those who were determined to keep the Negro "in his place", as they say, with force, violence and murder. There was but a short step from the inflammatory phrase spoken in the political hustings to the physical attack on individuals solely because of their race. The committee appointed by President Truman carried out its assignment. In 1948, it published a report setting forth four basic rights which "influenced its labors." These rights were safety and security of the person, citizenship and its privileges, freedom of conscience and expression and equality of opportunity.

One gruesome example of the committee's findings occurred on July 20, 1946, when four Negroes were lynched in Monroe, Ga. This is the direct quotation from the committee's report:

On July 20, 1946, a white farmer, Loy Harrison, posted bond for the release of Roger Malcolm from the jail at Monroe, Georgia. Malcolm, a young Negro, had been involved in a fight with his white employer during the course of which the latter had been stabbed. It is reported that there was talk of lynching Malcolm at the time of the incident and while he was in jail. Upon Malcolm's release, Harrison started to drive Malcolm, Malcolm's wife, and a Negro overseas veteran, George Dorsey, and his wife out of Monroe. At a bridge along the way a large group of unmasked white men, armed with pistols and shotguns, was waiting. They stopped Harrison's car and removed Malcolm and Dorsey. As they were leading the two men away, Harrison later stated, one of the women called out the name of a member of the mob. Thereupon the lynchers returned and removed the two women from the car. Three volleys of shots were fired as if by a squad of professional executioners. The coroner's report said that at least 60 bullets were found in the scarcely recognizable bodies. Harrison consistently 40-399-70- 18