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. On page 66 he admitted he had been an incorporator. Three. At page 21 of the transcript he said: 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: Were you familiar with the by-laws or the articles of incorporation? Judge CARSWELL. No, sir. But look on page 66: 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. Five. On page 21 he said: 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: Judge CARSWELL. This was a defunct outfit that went out of business. 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. Then in regard to the other problem of the speed of the Pensacola plan, they said flatly: "It has not gone far enough..." And then this is kind of cute: The court of appeals says: "We are reluctant to substitute our judgment for that of the district court." And then they go on and specifically tell him what to do. I take it they did this because they were rather scared he would not do it if they did not tell him exactly what they wanted, and the court then spells out how much further he has to go in order to meet their requirements. The second case occurs in 1964. Due v. Tallahassee Theaters, Inc., 333 F. 2d 630. This was a complaint under sections 1981, 82, 83 and 85, of title 42 of the United States Code against the two theater corporations, their managers, the city officials and the city of Tallahassee, alleging a conspiracy to deny Negroes the right to go to movie theaters. Judge Carswell threw it out on a motion to dismiss, and this is what the court of appeals said to him, again chastising him and again unanimous: The orders of the trial court dismissing the complaint for failure to allege a claim on which relief could be granted can be quickly disposed of. These orders were clearly in error. And then they go on to say this. They set forth the essence of the complaint in the opinion not as the plaintiffs had stated it but as the defendants had stated it, and then court of appeals said: This appears "to be a classical allegation of a civil rights cause of action." In other words, Judge Carswell without a hearing had thrown out what the court of appeals said was "a classical allegation of a civil rights cause of action." Then they went on to reverse him a second time in the same case. He had not only thrown out the case of everyone except the sheriff, but he granted the sheriff summary judgment, because the sheriff in an affidavit said he had not conspired with anybody. The court said in effect: You cannot give summary judgment on a sheriff's affidavit that he did not conspire with anybody. You have got to have a trial on whether he conspired with anybody." And they reversed him on that point too. The third case is Wechsler, which has been much discussed and bruited about here. I regret that Senator Hruska is not here for this discussion, but possibly he will be here later. So we can discuss it after I have concluded my direct testimony. The style of that case is Wechsler v. County of Gadsden, Fla., 351 F.2d 311, in 1965. I am not going to repeat the facts in that case. You have heard them from Lowenthal, Knopf and Rosenberger. But there are two points that are worth making. First, Senator Hruska said that the court of appeals "relied on Peacock." I wrote that down. The court of appeals in reversing Judge Carswell unanimously relied on Peacock and on Rachel. Now I have re-read Peacock and Rachel. Senator Cook. You mean the Supreme Court? Mr. RAUH. When the fifth circuit sent it back, they sent it back on their own decisions in that area. Senator Cook. That is right. Mr. RAUH. And then later both of those cases went to the Supreme Court. Now I have re-read Rachel and Peacock and the only candid thing a lawyer could say to you is that it is debatable whether the Wechsler case fell under Rachel or Peacock. I can state what the problem is easier than I can give you the answer. Rachel held that if a person is relying on a Federal statute when he does the act involved, he can remove to Federal court from a State criminal prosecution for that act. Peacock holds that when he is not relying on a Federal statute as a basis of the act for which he is arrested by the State, he cannot remove simply because he says "I cannot get a fair State trial" or "My first amendment rights are being infringed." It is not clear which this was in Wechsler. I want to make this perfectly clear, because I think we could spend all day arguing whether Wechsler was Peacock or Rachel, and I think this is unnecessary. And that brings me to the second point and the most important point about this case where Senator Hruska was wrong. He also said that Peacock in the Supreme Court denied the principle of automatic removal, and permitted sua sponte remands without hearings. He did not say without hearings and I want to make this perfectly clear. He did say sua sponte. Now Peacock does not say that, and that is the important point for the present situation. Peacock is an appeal from two cases. It is an appeal from a case called Peacock in the fifth circuit, and it is an appeal from a case called Weathers in the fifth circuit. In both of those cases, there was a motion for remand. There was a hearing. In neither of those cases was it either on the judge's own motion to remand or without a hearing. Then later in the Peacock case in the Supreme Court, the judges are saving why they did what they did. The five judges in the majority are apologizing to a degree to the civil rights movement for what they have done by saying there is not a right of removal. What the Supreme Court majority said was if there were a right of removal in Peacock, every criminal case in the South would be tried in a Federal court and we cannot go that far. In explaining how far that would go, they say this: If the individual petitioner and I am now quoting from page 832 of the Supreme Court's decision in Peacock 384 U.S. 808-If the individual petitioners should prevail in their interpretation of section 1443 (1), then every criminal case in every court of every State on any charge from a $5 misdemeanor to firstdegree murder-would be removable to a Federal court upon a petition alleging (1) that the defendant was being prosecuted because of his race and that he was completely innocent of the charge brought against him, or (2) that he would be unable to obtain a fair trial in the State court. On motion to remand, the Federal court would be required in every case to hold a hearing. What the Supreme Court is saying there is the real reason why they refused removal in Peacock-because everybody would remove every criminal prosecution from the State court to the Federal. Then there would be a motion to remand by the State. Then there would be a hearing on that and an appeal and this is too much for the Federal courts. It is the exact opposite, I respectfully submit, from what Senator Hruska had indicated. |