crepancies in your own testimony, the discrepancies in your actions. You hid, you fled.

He has a right to demand to come back here. I use the analogy of Justice Black. He explained. Judge Carswell has not explained. We ask that he be recalled and, if he were qualified to sit on this great bench, he would come back, and insist he could come back.

In conclusion therefore, gentlemen, I respectfully suggest to you that Judge Carswell is Judge Haynsworth with a cutting edge. He is Judge Haynsworth with a bitterness and a meanness that Judge Haynsworth never had. A Senate that would not confirm Judge Haynsworth cannot confirm Judge Carswell. It cannot accept the principle that because the Senate refused to confirm someone, it thereby has to confirm somebody worse. Otherwise you will get to the point where you may never refuse to confirm anybody because there will be a threat that it will be worse the second time.

You have heard Mr. Pollack and others say this man has never written one legal statement for the public. To put in the seat of Oliver Wendell Holmes, who wrote "The Common Law," the seat of Benjamin Cardozo, who wrote "The Nature of the Judicial Process," the seat of Felix Frankfurter, whose writings and scholarship were legion, to put in the seat of those three men a man who has never published one page on the law is to be disrespectful to the great justices of the past. Nor is there one opinion cited by anybody in his favor with one exception that I am coming to.

Here you had Professor Moore, a great scholar, who has written and has read everything. Professor Moore, in order to write "Moore's Federal Practice" and keep it up to date, has to read everything. Yet he comes before you and cannot cite one case worthy of note of Judge Carswell.

So you say "the barber shop" case. That is the one case anybody has ever talked about. If Judge Carswell is confirmed, God help us, it will be the first time in history that a man ever was confirmed for writing an opinion that his racist barber ought to cut a Negro's hair.

But what about that case? Let us look at it. It is called Pinkney v. Meloy, 241 F. Supp. 943 in 1965. I am going to read you the statute. The fact anybody should cite this case in his favor is real proof that nobody expects Judge Carswell to do anything. I want to read you the statute. You all passed the statute.

Section 201 (b) (4) of the 1964 law provides coverage of-

any establishment

which is physically located within the premises of any establishment otherwise covered by this subsection . . . and . . . which holds itself out as serving patrons of such covered establishment.

Two criteria are required for coverage. First, that it is part of an establishment that is covered, and second, that it holds itself out to serve the patrons of the covered establishment. Gentlemen, both of those points were stipulated by the parties. The stipulation of the parties reads as follows:

The Duval Hotel is located in the City of Tallahassee accommodation as defined by the Civil Rights Act of 1964 . the Civil Rights Act.

is a place of public and is covered by

In other words, they stipulated the first half of the criteria. And then they say, and this still in the stipulation:

There are signs in the hotel elevators listing the various services located in the hotel, including defendant's.

is ruled that lingerie salespersons must be female (i.e., job classificasex) yet no such exemption has been considered in the case of -gynecologists, surely a much more intimate service for a professional for a woman.

‚e for equal employment opportunity today rests, in my opinion, not for fair treatment, but on the inescapable fact of modern life that be better for society if women were "procreationally unemployed" joke, Chairman of the Department of Demography at the University rnia at Berkeley, has argued that for this to happen, women must socially approved options for a life career.

mittee has an unprecedented opportunity to accomplish several rable ends at a single stroke. By questioning Judge Carswell very out his attitudes and beliefs about women (1) he may be educated will be less likely to commit errors regarding women such as he has mitted and retracted regarding blacks; (2) general public attene drawn to an area which is directly related to one of our nation's Sing problems. Information which is available but generally unknown e a matter of public record and may enlighten judges, lawyers, and others entrusted with concern for the public good.

TMENT OF LABOR-WAGE AND LABOR STANDARDS ADMINISTRATION

WHY WOMEN WORK

30 million women are in the labor force today because their talents re needed by the dynamic American economy. The development of les and expanded activities in other industries have opened new Comen in business, the professions, and the production of goods and

of individual women to seek employment outside the home are usun economic reasons. Most women in the labor force work because r families need the money they can earn-some work to raise family ards above the level of poverty or deprivation; others, to help meet of food, educattion for their children, medical care, and the like. w women have the option of working solely for personal fulfillment. of the women who were in the labor force in March 1968 worked to selves or others. This was true of the majority of the 6.4 million en workers. Nearly all the 5.6 million women workers who were Divorced, or separated from their husbands-particularly the women also raising children-were working for compelling economic reasons. on, the 2.3 million married women workers whose husbands had inless than $3,000 in 1967 certainly worked because of economic need. ke into account those women whose husbands had incomes between ed $5,000 (which is still below the $5,915 considered necessary even for a dard of living for an urban family of four), about 2.2 million women ied. The marital status of women in the labor force in March 1968

Both halves of the statutory requirement for coverage were thus stipulated. I say that when anybody has got to rely on a case that was stipulated as covered by the law, they are in one heck of a shape.

Members of the committee, this is the worst possible time in our history to put a man like Judge Carswell on the Supreme Court. There is a new revolution going on, and it is going on in two ways in the South. There are those who want to comply. There are people, decent people, who want civil rights for everybody, and this is a slap in the face to them. But then there are others, best exemplified by Governor Kirk, who are starting a new revolution against civil rights. What you are doing is fanning the flames of that negative revolution and killing the good revolution by putting Judge Carswell there.

Finally, I came here as a lawyer and I said I was going to prove my case. My case is this: There is a presumption that a man who says he is a white supremacist, is a white supremacist until he proves the contrary. I say that the record before you, instead of proving the contrary, buttresses the 1948 white supremacy speech.

There is the golf course incident, in which Judge Carswell has not only been implicated deeply, but lacking in candor before this committee. There is the civil rights hostility running down to the present. I think Leroy Clark said he was there until as late as 1966, being insulted, "never letting me finish a sentence, turning his back on me. Do you really believe that Rosenberger, Knopf, Lowenthal and Clark were not telling the truth? You could not believe that if you saw them. They have nothing to gain out of this.

So you have a record buttressing the white supremacy statement. And then you have the cases. You have 15 cases of unanimous reversal, nothing in his favor. What you really have here is 45 to nothing against Carswell, plus the other cited cases.

Well, if we have not proved our case, I do not know how anything can prove a case in this country. Don't let the fact that you did not want to do it again stop you. It is not the fault of the Senate that we are here today. You did what you had to do on the nomination of Judge Haynsworth. Don't let the fact that it came back worse discourage you. Remember you will have to live with your conscience, and I am going to predict now that those who vote for Carswell for the Supreme Court are going to find as time goes on that more is going to come out against him. If in 2 weeks this black record can be built by volunteers, by people with no staff, if so black a record can be built in 2 weeks, what could be built with an adequate investigation?

I just suggest that caution does not lie with confirming a man who proclaimed and has proved his belief in white supremacy. Caution stands with those of us who ask you to say no.

Senator HART. Thank you very much, Mr. Rauh. The witnesses are available for questioning.

Senator KENNEDY. Mr. Mitchell and Mr. Rauh, would your opinion be as strongly expressed in terms of your reservation about the nominee's attitude in the field of human rights and civil rights if he had not made that speech in 1948? Do you think the events since that time would still justify an expression of reservation on your part? Mr. RAUH. Yes, Senator Kennedy. I would have been here with those cases proving the case against Judge Carswell. I would say that these are independent points. Mr. Mitchell so eloquently made clear that you

cannot put a man on the Supreme Court who had said that. There are a lot of things you can forgive him for, and you can forgive his statement, if he had really recanted, but you could not put him on the Supreme Court. That is point one.

My point is wholly different and in addition to that point. I would be here opposing Judge Carswell as a segregationist if he had never made the statement. I simply say that the statement illuminates the later history.

Mr. MITCHELL. I think too, Senator Kennedy, that the fact that we in the Leadership Conference opposed his nomination to the court in the Fifth Circuit when we did not know about his white supremacy statement indicates that we considered him unfit.

Senator BAYH. I have no question, but I would say that some of the questions I had were answered by the extreme, detail in which you examined those cases, and there is a very great concern in my mind on this critical issue.

Senator ERVIN. Senator Cook?

Senator Cook. I was wondering, we have 5 minutes, I think, under our order and I wonder whether it is the desire of the chairman to hear the lady who wished to testify?

Senator ERVIN. Under the agreement, as I understand it, the order of the chairman, and under the tacit agreement of the committee, if Mr. Rauh and Mr. Mitchell have finished testifying, then we will stand in recess. We will adjourn the public hearing and go into executive session.

Mr. RAUH. Sir, it is not 11:30, couldn't the lady be heard? Let her talk.

Senator ERVIN. Have you finished testifying, Mr. Rauh?

Mr. RAUH. I would just like to say one thing in my testimony. I think you would be making a terrible mistake not to hear the lady. (A prepared statement by the lady referred to, Jo-Ann E. Gardner, was subsequently on February 4, 1970 filed with the committee and follows:)

THE JUDICIARY COMMITTEE OF THE U.S. SENATE,
Senate Building,

Washington, D.C.

Pittsburgh, Pa., February 4, 1970.

DEAR SIR: I was invited by the Judiciary Committee staff to submit the attached statement for the written record of the hearings on the nomination of Judge Carswell to the Supreme Court.

Yours sincerely,

JO-ANN E. GARDNER.

STATEMENT OF DR. JO-ANN E. GARDNER REPRESENTING FOCUS ON EQUAL EMPLOYMENT FOR WOMEN COALITION OF GROUPS, BIPARTISAN NATIONAL; CHAPTERS IN BOSTON, WASHINGTON AREA, PITTSBURGH, UTICA, KALAMAZOO, MINNEAPOLIS, LOS ANGELES

I am Jo-Ann Gardner, experimental psychologist, employed at Learning Research and Development Center, University of Pittsburgh as center associate. My work is the development and evaluation of Computer Assisted Instruction in elementary mathematics.

"In every society there are at least two groups of people, besides the Negroes, who are characterized by high social visibility, expressed in physical appearance, dress, and patterns of behavior, and who have been 'suppressed'. We refer to women and children. Their present status, as well as their problems in society, reveal striking similarities to those of the Negroes." (Opening paragraph, An American Dilemma, Gunnar Myrdal, Appendix 5.)