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his speech and in disregard of his record. We hope that the grave error which was committed when Judge Carswell was nominated will not be riveted into the history of our
country by the Senate of the United States. Therefore, we ask that the nomination be rejected.
This concludes my testimony and I yield to Mr. Rauh, Mr. Chairman. Senator TYDINGS. Mr. Rauh. A VOICE FROM THE AUDIENCE. Excuse me, I would like to make a statement.
Senator TYDINGS. We have two witnesses, Mr. Mitchell and Mr. Rauh now, and we are going to hear from Mr. Rauh at this time.
The Chair recognizes Mr. Rauh..10
TESTIMONY OF JOSEPH L. RAUH, JR., GENERAL COUNSEL,
LEADERSHIP CONFERENCE ON CIVIL RIGHTS
Mr. Rauh. Members of the Senate Judiciary Committee: My name is Joseph L. Rauh, Jr. I appear here today with Mr. Mitchell. I am general counsel of the Leadership Conference on Civil Rights. I am also appearing as vice chairman for Civil Rights of Americans for Democratic Action.
On August 2, 1948, the then Mr. Carswell said: I yield to no man * * * in the firm vigorous belief in the principles of white supremacy, and I shall always be so governed.,
That is possibly the worst statement ever made by a candidate for the U.S. Supreme Court. It is certainly the worst statment made by a candidate for the U.S. Supreme Court in this century.
Worse yet, Judge Carswell still does not understand the enormity of what he said. Let me explain that. Judge Carswell and others referred to the fact that this statement was pre-Brown. What difference does it make that it was pre-Brown! Plessy v. Ferguson, a much hated case, was the law of the land pre-Brown, but Plessy v. Ferguson stated the proposition that all men are created equal, that they must have equal facilities if separate.
The doctrine of white supremacy espoused by then Mr. Carswell was as much a violation of Plessy v. Ferguson as any he could possibly have proclaimed. The law of America at the very moment he spoke was equality, and I think he does not even today see that what he said was not just prosegregation which was valid pre-Brown. He does not see that white supremacy ended with the end of slavery and the 13th, 14th and 15th amendments. He still has some idea that it was not so bad because Brown came out later. I hope I have made clear the situation as it was pre-Brown.
Now Judge Carswell having made this statement, there is in law a presumption of a continuation of a shown condition or state of affairs if the contrary is not shown:
"From proof that a certain relationship, status, condition, or state of affairs has existed, it may be presumed that such status, condition, or state thereafter continued to exist, in absence of proof to the contrary * * * Where the habits and character of persons have been in issue, the rule has been applied. I Jones, Evidence, fifth edition, 1958, section 66, page 117."
In other words, the law presumes that Judge Carswell's statement continues to be his position, unless he has rebutted that presumption. Now the testimony I intend to give this morning is to show that there has been no rebuttal of the presumption of continuancy of his white supremacy position, and indeed that everything that has happened since has reaffirmed his white supremacy position.
First, there has been no direct repudiation by Judge Carswell until several days after he was nominated for the Supreme Court of the United States. For 22 years that statement stood as an unrepudiated position reaffirming the presumption that it continued as this position.
Furthermore, and more damaging, there has been no indirect repudiation of that statement. No witness here, including Judge Carswell. has pointed to a single writing exhibiting compassion for the Negroes of America. Judge Carswell's 1948 white supremacy statement stands unrepudiated and unrebutted on the record of his actions to which we can now turn.
The golf course incident has been much discussed. Judge Carswell was an incorporator and director of a private golf course whose purpose was to deprive Negroes of the opportunity to play on the municipal course. He did
this as U.S. Attorney. I say after thought and after consideration that there is a serious question whether incorporation and operation of a segregated golf course under these cirumstances was a criminal act; 18 U.S.C. 241 makes it a felony to conspire to "injure . : . any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States
In United States v. Price, 383 U.S. 787, that section, that is 18 U.S.C. 241, was interpreted to apply to 14th amendment rights. Although this ruling came after the golf course incident, it was no change in the law, but a declaration of the intent of the statute as passed in 1870.
If in fact the city, city officials and private persons did scheme to segregate the municipal golf course by passing it into private hands, they were depriving Negro citizens of clearly defined 14th amendment rights.
Some months previously the Supreme Court had held in Holmes v. City of Atlanta, 350 U.S. 879, I believe it was in November 1955, that municipally owned golf courses must be desegregated. It would seem that the present operators of the course, who hold it under a 99-year $1 a year lease, continue such a denial of 14th amendment rights under Burton v. Wilmington Parking Authority. Therefore the question should arise whether in fact a criminal conspiracy existed.
I do not want to repeat earlier testimony. I only want to refer to the fact that Leroy Clark, a professor at New York University, John Lowenthal, a professor at Rutgers, Ernst Rosenberger, a lawyer in New York City, and Norman Knopf, a lawyer in the Justice Department, if he is still there, all came here to testify to the hostility of Judge Carswell in the mid-1960's not in 1948, not in 1956, but in the mid-1960's. All four of them, unrebutted, testified that he was hostile to civil rights and civil rights workers in the mid-1960's.
Now before analyzing the 15 cases in which Judge Carswell was reversed for denying human and individual rights, I feel it necessary as a lawyer to call this committee's attention to the nominee's wholes sale lack of candor on both the white supremacy statement and the golf course incident.
First with respect to the white supremacy statement. When he was told about this, he went on television and referred to the fact that it had been "attributed” to him. He tried to explain that evasion before this committee, but I believe wholly unsucessfully.
When a man has made that speech, has had those views-he even told Senator Hart, I believe it was, that he believed those views--he should have known that they were not attributed to him. They were the statements he had made.
Furthermore I think his effort to indicate that this statement was pre-Brown and therefore explained by that fact was equally a lack of candor, but I think I said enough about that before.
But the worst lack of candor came on the golf course incident. There were seven statements, seven statements, made during the golf course incident, that if you had had a witness up here for anything else, you would have jumped all over him and made perfectly clear what you thought of his willingness to tell the truth. I will give you these seven.
On page 20 of the transcript Judge Carswell said, and I quote:
I read the story very hurriedly. Who in this room would believe that a man nominated for the Supreme Court of the United States, having had the statement on white supremacy come out, having seen a story which corroborated the white supremacy statement, knowing that his job on the Supreme Court was at stake, would have, and I quote: read the story very hurriedly.
Secondly, on page 22 of the transcript Senator Hruska said:
Were you an incorporator of that club as was alleged in one of the accounts I read?
Judge CARSWELL. No, sir.
I was never an officer or director of any country club anywhere. The face of the incorporation papers put in the record here demonstrate he was a director.
Four. On page 24 Judge Carswell was asked by Senator Hruska:
Senator KENNEDY. Did you generally read the nature of your business or incorporation before you signed the notes of incorporation ?
Judge CARSWELL. Certainly I read it, Senator.
Judge CARSWELL. Somewhere about 1956, someone, a friend of mine- I think he was Julian Smith-said, we need to get up some money to do something about repairing the little wooden country club.
But on page 67 he says, in answer to a question by Senator Kennedy:
Would this lead you to believe that their only interest was just in the building of a clubhouse?
Judge CARSWELL. Oh, no: I certainly was aware that there would be things going on around the clubhouse that normally do.
Six. At page 23 this appears: Judge CARSWELL. There has certainly been no racial discrimination among the guests.
The affidavits Mr. Mitchell has put in the record rebuts that completely.
Seven. On page 148, the next day:
What was the true fact about that? The resolution which I believe is part of the record of this corporation, made perfectly clear that it was not going out of business. The resolution made perfectly clear that the corporation was making one small change, namely a shift from profit to not for profit. Now what actually happened is perfectly clear. Somebody goofed. When they did the original incorporation, they put it under a profit statute of Florida. Well, that was a mistake. Nobody expects a country club to make money. Everybody assumes a country club has got hard times. Anybody who belongs to a country club knows it is a nonprofit operation.
You are damn lucky if you get somebody to pay the deficit. So all they did was shift under the corporate laws of Florida from a profitmaking corporation to nonprofit, and this is the resolution making the shift.
There are certain whereas clauses. Then it says:
"Whereas it is deemed wise and expedient to change the corporate nature of the Capital City Country Club, Inc., from a corporation for profit to a corporation not for profit: Now, therefore, be it Resolved," that we are going to make the change and then follows: "Be it further Resolved, That all acts of the stockholders and directors of Capital City Country Club, Inc., to this date, be and they are hereby approved and ratified; and further, that it is the sense of this meeting that all of the directors and officers of this corporation be continued in their present status, respectively, in the new corporation, Capital City Country Club, when duly organized."
How can anyone say that the original club went defunct when it simply changed from profit to nonprofit? The word “defunct” was absolutely wrong on the basis of that resolution.
I do not know how you describe seven misstatements by a nominee for the Supreme Court on one incident and I guess what I think I ought to simply do is leave the adjective out. That is up to the committee. I have stated the facts, and I will leave it at that.
Now I want to come to the 15 cases in which Judge Carswell was unanimously reversed by the Court of Appeals in the area of human and individual rights. I did not look at all of the other cases in the limited time. I did not read the way Van Alystyne and Pollak read. I want this perfectly clear. Van Alystyne and Pollak, who are scholars, read through whole volumes. Their opinion of Judge Carswell comes from the reading of say a whole Federal Supplement volume, one case after the other, and they got their low opinion of him that way.
They read a random cross-section of opinions. I think Van Alystyne said that he read them all except in the court of appeals, and I think that Pollak said he had read 5 years. That is not what I did. I am not really any longer qualified to read in all the other areas. I do not teach law and there would be some areas that would be Greek to me. I am testifying on particular cases that I have not only read but studied, and which in my judgment render Judge Carswell unfit for the Supreme Court, which deals so much in the area of civil rights and individual rights.
Let us go into these 15 one by one, and where there has been discussion previously, I would simply like to add to it, not repeat it.
The first case is Augustus v. Board of Public Instruction of Escambia County, Fla. In the court of appeals the citation is 306 F. 2d 862 (1962). This is the so-called Pensacola School System case.
The Pensacola School System was wholly segregated as of 1960. Suit was commenced on February 1, 1960, by Negro parents. The first thing that Judge Carswell did was strike the effort by the Negro parents to desegregate the school faculties.
Now it would not have been so bad after a hearing to have ruled against faculty desegregation, because the law was unsettled on faculties at that moment. I would be the first to admit that; the law was unsettled. But Judge Carswell ridiculed these Negroes who sought to get desegregated faculties. He made a joke of them.
Let me read you what he said about them. Judge Carswell granted a motion to strike the part of the case that dealt with teachers, and this is what he said:
Students herein can no more complain of injury to themselves of the selection or assignment of teachers than they can bring action to enjoin the assignment to the school of teachers who were too strict or too lenient.
I say a man who makes that comparison to a racial issue is a man who has hostility on the racial issue. This is no question of leniency or nonleniency of teachers. This is a question of the inferiority of Negro teachers being alleged, and his laughing at it.
That was the 1960 ruling. You see, while I have said there were only 15 cases, I am going to show you that in more than one of these cases Judge Carswell was overruled twice in the same case, but I am only counting them as one.
In 1960, Judge Carswell laughed at the idea of faculty desegregation. But then in 1961, he got to the actual school plan of Pensacola. Although the suit was filed in February 1960, Judge Carswell did not obtain a desegregation plan from local authorities for a year and a half. Even then, he allowed another year before the first short step was taken toward token desegregation. He approached a defective plan which provided only vague notification of rights to black parents, allowed only 5 days a year for Negroes to request transfer to white schools and authorized the school board to reject transfer applications on a variety of general grounds.
Now the court of appeals in 1962 in the case I have cited got appeals from both rulings. They handled the appeal from the motion to strike on the faculty problem, and they also handled the appeal of the Negro children in relation to the speed of desegregation. In both instances the court of appeals reversed unanimously.
As to the motion to strike, they were quite caustic in reversing: "Whether as a question of law or one of fact, we do not think that a matter of such importance should be decided on motion to strike ... A disputed question of fact cannot be decided on motion to strike." Rather, there should be a hearing as to whether the children could prove that it affected them to have faculty segregation.