sor of Sociology at Florida A&M University of the desire of specific Tallahassee black citizens to play on the city golf course.

This discussion with Mr. Smith was one of many that I had with a variety of parties during that period on the subject of the golf course, the issue being of wide civic concern. I would have been surprised if there was any knowledgeable member of the community who was unaware of the racial aspect of the golf course transaction. The controversy appeared in the local newspaper of the time, and a city commissioner was known to have raised questions about the racial implications involved.

CLIFTON VAN BRUNT LEWIS.

Subscribed and sworn to before me this 1st day of February 1970

DULUTH H. BAKER, Jr.

Mr. MITCHELL. It is well known that Judge Carswell is listed as one of the incorporators of this private club. If Judge Carswell had been an ordinary citizen unaware of the full implication of signing articles of incorporation or if he had been a lawyer in private practice who wished to be of assistance to his fellow citizen this action would not be important.

I would just like to digress a minute, Senator Kennedy, to point out that I was present when you examined Judge Carswell on that point, and I was struck by his reticence in saying what common sense indicated a lawyer and a judge should say. You asked him whether he was aware of signing this document, and he said it was just for the purpose of repairing some little broken-down clubhouse. Then when you got into the reading of the articles of incorporation, I think the lawyer and the judge in him triumphed, because he had to admit that he was aware of the purposes of this corporation.

This was no ordinary signing of a document that some friends handed to him and he just signed it.

I can well remember once somebody handed me some articles of incorporation to sell something which they said they would not describe to me, but I took the trouble to look at it, and discovered that it was something promoting what they called Civil Rights Whiskey. I think Senator Tydings knows that I would get into much trouble with my mother-in-law, who favors total abstinence, if I had signed that document. I had commonsense enough not to sign it. I certainly think that, given the civil rights issues of the times, one had to read that kind of property transfer document with care. I cannot believe that Judge Carswell did not know what he was doing. He was the U.S. district attorney sworn to uphold the Constitution and laws of the United States. As such, he had an obligation, not only to avoid participation in efforts to defy the law, but also to avoid the appearance of participation in such efforts.

He did not fulfill this obligation. He signed a document which, whatever may have been its original objective, accomplished the result of banning Negroes from a recreational facility solely because of their race. It is interesting to note that those who defend Judge Carswell first excuse him for his 1948 racist utterances on the grounds of youth, but his 1956 action is somewhat more difficult. Nevertheless, they are inclined to excuse this also because it was a so-called routine signature and he paid a small sum of money to accomplish the noble purpose of repairing a damaged clubhouse located on the golf course property, according to his version.

It may be that the members of this committee can accept this explanation given by Judge Carswell and still be at peace with their

own consciences, but it is unlikely that reasonable men and women outside of the Senate will accept it. Those who favor racial segregation undoubtedly will rejoice if the expanation is accepted because it will be proved that sophisticated methods of evading the law have triumphed, but they most likely, even though segregationists, will know that the explanation is ridiculous on its face. Those who do not favor racial segregation will feel the cold iron pressure of the chains of frustration once again restraining their efforts to achieve a society in which those who deny equal treatment to their fellow citizens are not rewarded with high office and new opportunities to poison the wells of justice as judges on the bench.

The third opportunity for Judge Carswell to demonstrate by his action that he had repudiated the 1948 speech came after the great decision of the U.S. Supreme Court in 1954 outlawing racial segregation in the public schools. By that time he was a judge on the bench of the northern district of the State of Florida. Others have dealt more in detail with his record as a judge, and Mr. Rauh will also comment on that point.

I offer one example which indicates how he again became a part of the pattern which is exemplified by the words of his 1948 speech. It is well known that the unthinking and unskilled advocates of segregation resisted the 1954 decision with force, intimidation, violence, economic pressure and even murder. It is also well known that the wiser and more sophisticated forces of resistance resorted to changes in the laws of States, delays through extended litigation and other obstructionist tactics under the color of law. Judge Carswell was a part of this latter strategy. Even if we assume that he was unknowingly a part of it, the end result is the same. He was a force which contributed to the pattern associated with the delay in implementation of the school desegregation decision. The example I offer is Steele v. Board of Public Instruction of Leon County, Fla. This was a suit instituted in 1963 to require desegregation of public schools. Because of delays largely chargeable to Judge Carswell, the case was not settled until 1967. Counsel in the case discussed it yesterday in the hearings before this committee.

In closing this presentation, it should be remembered that in a convention of wolves it is always easy to pass a resolution justifying raids on the sheepfold because the occupants thereof willfully and knowingly stimulate the flow of gastric juices in the digestive system of the predators. This lupine type of reasoning is widely used in our society today-especially in the area of civil rights.

We urge our citizens to rely upon the law, but we appoint prejudiced law officers as enforcers. We breathe a sigh of relief when Negroes go into the courts instead of into the streets, but we then confront them with judges who have decided to deny them relief even before they enter the courthouse door.

The one great exception to all of this has been the U.S. Supreme Court. This Court is under attack and condemnation because it has handed down decisions that destroy longstanding unjust practices. The State legislatures pass unconstitutional restrictions on freedom and the Supreme Court is condemned because it strikes down such monstrous attacks on liberty. Those who vilify the Supreme Court have learned to make use of vague words and phrases, that arouse base pas

sions and protests against the most noble tribunal in the civilized world.

One of the phrases current today is "strict constructionist." One may very well ask what does that mean? The simple answer is it means everything and it means nothing. Therefore, it is better to speak in plain words when one describes the qualifications that are being sought in a judge who is to be elevated to this high Court. When one makes a plain word substitute for this term it is necessary to look at the policies and practices of this administration, the Nixon administration.

These policies and practices are clearly designed to create further and inexcusable delays in the desegregation of public schools. This is the policy now employed by the U.S. Department of Justice. It was the policy of Judge Haynsworth and it is a clearly discernible thread in the decisions given by Judge Carswell. We believe that if the administration's desire to have a so-called strict constructionist on the Supreme Court has any meaning in the case of the nominee now before this committee, it means that the President wants a judge who will use his office to delay school desegregation in particular and all other civil rights progress in general.

But, let us see what Judge Carswell thought about that term "strict constructionist." He did not give a clear definition in a reply to a question on that point. Instead, he offered the committee a new phrase by saying that, "I do not think the Supreme Court should be a continuing constitutional convention.” The hearer is entitled to ask what does that mean? Does it mean that the Court was sitting as a convention when it upheld the right of Negroes to play on a publicly owned golf course? Does it mean that the Nation's highest tribunal is no longer acting as a court when it orders implementation of a 15-year-old decree against segregation in the public schools? In the light of his past record, it is fair to conclude in these instances that Judge Carswell would believe that such decisions are the products of a "continuing constitutional convention" rather than the constitutionally sanctioned decisions of a court of law.

We have seen and heard many of the supporters of his nomination. Some of them are reasonable men who have appeared from time to time as champions of civil rights. Their advocacy of approval for this nomination is another indication of the wide gulf that separates the reality faced by the oppressed and the insulated world in which their sympathizers live. As one travels about the country, it is clear that the victims of racial discrimination are not convinced that Judge Carswell has really abandoned his belief in the wisdom of racial segregation and the verity of white supremacy. Perhaps it would be possible for the men of good will, who support Judge Carswell, to understand the feelings of the victims of racial discrimination if those gentlemen would suppose for a moment that they were considering a nominee who in his early adult career had blatantly expounded the doctrines of Adolf Hitler or Josef Stalin. We might accept his profession of a change of ways 20 years after the speech was made, but we would not put him on the U.S. Supreme Court or any other Federal court. Most of the black citizens of the United States do not believe there is any difference between European demagoguery and the homegrown variety which, for want of a more odious term, we call racism.

The Negroes of America are waiting to see whether the Senate of the United States will ratify racism by confirming this nominee in spite of

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.

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 his 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.

1

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 wholesale lack of candor on both the white supremacy statement and the golf course incident.