Much has been said about Judge Carswell's statements and opinions about the proper place of blacks in our society. I would like to request that he be examined also very closely with respect to his beliefs and attitudes about the proper place of women in today's society.

I am desperately concerned because of his recent decision in October of 1969 in the case of Phillips v. Martin-Marietta. In 1948 it was politically sound to make a speech asserting white supremacy. In 1970, although the Supreme Court has never ruled on a sex discrimination case, there are laws which make it appear likely that numerous cases will be brought to the Supreme Court.

In 1948, the people of this country were not sensitive to the dreadful inequities produced by white supremacist statements. Today, in 1970, the people are generally unaware of the dreadful inequities that result from parallel but more subtle male supremacist beliefs.

For example 54% of all families headed by a black woman are below the level of poverty; 25% headed by a white woman are below the level of poverty: comparable figures for families headed by a white male or black male are 6.7% and 22.2% respectively. (U.S. Department of Commerce, Bureau of the Census: CPR-60, No. 55.)

Part of my purpose in coming here today from Pittsburgh, is to get into the record some of the information about equal employment problems women face. Today, 30,000,000 women are employed. This is 38% of the labor force. In spite of the 1963 Equal Pay Act and Title VII of 1964 Civil Rights Act, a comparison of wage and salary income of full-time year round women workers with that of males shows that women's relative position has deteriorated during the period of 1957-1967. In 1957, women's median wage was 64% of men's wages; in 1967. women's median wage earnings were 58% of men's earnings. I cite these figures from the Labor Department to bring forcefully to your attention the position of women, who are 51% of the population.

I would like to enter the following publications from the Labor Department which give a more complete picture. (1) "Who are the Working Mothers?" (2) "Why Women Work." These two pamphlets show conclusively that mothers of small children who work, do so because of need.

With respect to Judge Carswell's decision in the Phillips v. Martin-Marietta case, it is particularly important to consider the implications of that decision, particularly as it affects poor women, and especially poor black women. However lawyers might argue, women know that it was sex discrimination and they suspect the motivation was that of the white middle class male belief that women with small children should be at home. But this belief about what women should do is contrary to the facts of what women must do. This table, also prepared by the Labor Department, shows how income of the husband is related to the proportion of wives with small children in the labor force; in general, the less the husband earns, the greater percentage of wives who are working :

It has been argued that opinions as to the proper place of women are determined and justified by their being biologically different, just as it was once argued that blacks' place was due to their inherent differences. The argument about the place of blacks being due to basic biological inferiority is now recognized to be false and irrational. I am here to put forth the claim that attitudes and beliefs about women's proper place and jobs which they should hold are similarly false and irrational. Let me cite one example which illustrates the irrationality and the pervasiveness of such beliefs. Title VII of the 1964 Civil Rights Act allows exemption from the prohibition of discrimination based on sex when there are bona fide occupational qualifications based on sex. The

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

The hope for equal employment opportunity today rests, in my opinion, not on appeals for fair treatment, but on the inescapable fact of modern life that it would be better for society if women were "procreationally unemployed" Judith Blake, Chairman of the Department of Demography at the University of California at Berkeley, has argued that for this to happen, women must have other socially approved options for a life career.

This Committee has an unprecedented opportunity to accomplish several very desirable ends at a single stroke. By questioning Judge Carswell very closely about his attitudes and beliefs about women (1) he may be educated so that he will be less likely to commit errors regarding women such as he has already committed and retracted regarding blacks; (2) general public attention will be drawn to an area which is directly related to one of our nation's most pressing problems. Information which is available but generally unknown will become a matter of public record and may enlighten judges, lawyers, legislators and others entrusted with concern for the public good.

U.S. DEPARTMENT OF LABOR-WAGE AND LABOR STANDARDS ADMINISTRATION

WHY WOMEN WORK

More than 30 million women are in the labor force today because their talents and skills are needed by the dynamic American economy. The development of new industries and expanded activities in other industries have opened new doors for women in business, the professions, and the production of goods and services.

Decisions of individual women to seek employment outside the home are usually based on economic reasons. Most women in the labor force work because they or their families need the money they can earn-some work to raise family living standards above the level of poverty or deprivation; others, to help meet rising costs of food, educattion for their children, medical care, and the like. Relatively few women have the option of working solely for personal fulfillment. Millions of the women who were in the labor force in March 1968 worked to support themselves or others. This was true of the majority of the 6.4 million single women workers. Nearly all the 5.6 million women workers who were widowed, divorced, or separated from their husbands-particularly the women who were also raising children-were working for compelling economic reasons. In addition, the 2.3 million married women workers whose husbands had incomes of less than $3,000 in 1967 certainly worked because of economic need. If we take into account those women whose husbands had incomes between $3,000 and $5,000 (which is still below the $5,915 considered necessary even for a low standard of living for an urban family of four), about 2.2 million women are added. The marital status of women in the labor force in March 1968 follows:

Mothers with husband present. Of the 16.8 million married women (husband present) who were in the labor force in March 1968, 9.3 million had children under 18 years of age. About 2 million of these mothers-900,000 whose husbands had incomes in 1967 of less than $3,000 and 1.1 million whose husbands had incomes between $3,000 and $5,000-were helping to support their children. In fact, 24 percent of the 3.6 million working wives with children under 6 years of age and 20 percent of the 5.7 million working wives with children 6 to 17 years of age (none under 6) had husbands whose incomes were less than $5,000. Nonwhite wives.-About 15.9 million married women (husband present) who were in the labor force in March 1968 were living in nonfarm areas. Of these nonfarm wives, 22 percent of the nonwhite (12 percent of the white) had husbands whose incomes were less than $3,000 in 1967. An additional 25 percent of the nonwhite wives (11 percent of the white) had husbands whose incomes were between $3,000 and $5,000.

Women heads of families. Of the 49.8 million families in March 1968, 5.3 million were headed by a woman. Fifty-one percent of the women family heads were in the labor force, and more than three-fifths of these women were the sole support of their famiiles. About a third of all families headed by a woman had incomes of less than $3,000 in 1967. Nearly a fourth of all families headed by a woman were Negro; their median family income in 1967 was $3,015, as compared with $4,879 for families headed by a white woman.

Wives whose husbands are unemployed or unable to work. In the 43.3 million husband-wife families in March 1968, 732,000 husbands were unemployed and 5.6 million husbands were not in the labor force. About 320,000 wives of unemployed husbands and more than a million wives whose husbands were not in the labor force were working or seeking work. Many of these women were the sole support of their families.

Women whose husbands are employed in low-wage occupations.-There were 679,000 married women at work in March 1968 whose husbands were farmworkers; another 724,000 had husbands working as nonfarm laborers; and 915,000 had husbands employed in service occupations. The median wage or salary income of men in these three major occupation groups was low in 1967it was below the poverty level among farmworkers and barely above the poverty level for nonfarm laborers.

Women's reasons for entering the labor force.-According to a special study, nearly half the women 18 to 64 years old who took jobs in 1963 went to work because of economic need. Particularly likely to have taken jobs for economic reasons were women who were widowed, divorced, or separated from their husbands (54 percent) and married women living with their husbands (48 percent). The proportion who indicated financial necessity, including husband's loss of job, as the reason for going to work was even higher among married women whose husbands earned less than $60 a week (73 percent) and those who had children under 6 years of age (56 percent).

Of married women who stopped working in 1963, only a small percentage did so because they no longer needed to work.

NOTE.-Figures used are from the U.S. Department of Commerce. Bureau of the Census, and U.S. Department of Labor, Bureau of Labor Statistics.

(The chairman subsequently made a part of the record the following letter from Senator Hruska and enclosed analysis.)

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C., February 6, 1970.

Hon. JAMES O. EASTLAND,
U.S. Senate,

Washington, D.C.

DEAR SENATOR: During the recent hearings on the nomination of Judge Carswell to the Supreme Court, Joseph Rauh testified regarding the judge's judicial performance, particularly in civil rights and habeas corpus cases.

As I indicated at the time, I feel this testimony was misleading and prejudicial in nature.

Enclosed for your consideration is a legal analysis of Judge Carswell's performance which I feel effectively rebuts Mr. Rauh's testimony and deserves your careful study and analysis.

With kind personal regards,
Sincerely,

ROMAN L. HRUSKA,
U.S. Senator, Nebraska.

ANALYSIS AND COMMENT CONCERNING JUDGE CARSWELL'S RECORD IN
CIVIL RIGHTS AND CRIMINAL LAW

I. CIVIL RIGHTS DECISIONS

Mr. Joseph L. Rauh, counsel for the Leadership Conference on Civil Rights, testified that the Court of Appeals for the Fifth Circuit had reversed eight of Judge Carswell's decisions in civil rights cases. This statement, while technically true, gives an entirely misleading impression of Judge Carswell's overall rights record. It ignores all of the other civil rights cases in which Judge Carswell participated-six cases which were not appealed; four cases which were affirmed; and five Court of Appeals decisions. Any acceptable standard of evaluating judicial decisions for this purpose should fulfill at least two requirements: (1) It should treat all a judge's decisions in the field of law which were remanded for reconsideration in light of intervening appellate standards.

Since opposition to Judge Carswell's confirmation comes from those who urge that he is unsympathetic to civil rights claims, the following breakdown of his decisions in this field suggests itself:

(a) "Pro-Civil Rights" decisions and votes.

(b) "Neutral" civil rights decisions and votes cases in which Judge Carswell as a district judge decided against the claims of civil rights litigants, but was affirmed unanimously by the Court of Appeals; cases in which the Court of Appeals panel on which Judge Carswell was sitting unanimously decided against the claims of civil rights litigants; and cases which were remanded for reconsideration in light of intervening appellate or Supreme Court decisions.

(c) "Anti-Civil Rights" decisions and votes.

If Judge Carswell's civil rights cases are classified in this manner, eight of his decisions may be described as "pro-civil rights", ten may be described as "neutral", and five may be described as "anti-civil rights". These figures refute the contention that Judge Carswell is prejudiced against civil rights litigants.

A. Eight Pro-Civil Rights Decisions

Judge Carswell has decided the following eight decisions in favor of the civil rights litigants.

In Brooks v. City of Tallahassee, 202 F. Supp. 56 (1961), civil rights plaintiffs sought to enjoin the owner of a restaurant at the Tallahassee Airport from discriminating against Negroes, and to enjoin the city from maintaining signs designating separate waiting rooms, lunch rooms, and rest room facilities for Negroes at the airport. Judge Carswell held that the city and the restaurant had violated the constitutional rights of the Negroes. Because the city had continued to maintain the objectionable signs, Judge Carswell issued an injunction against any future violations by the city.

In Youngblood v. Board of Public Instruction of Bay County, Florida, 230 F. Supp. 74 (1964), the plaintiff Negroes sought to compel desegregation of the schools in Bay County, Florida. The plaintiffs' motion for summary judgment was opposed by the School Board on the ground that a recently decided case for the District Court of the Southern District of Georgia, Stell v. Savannah-Chatham County Board of Education, 220 F. Supp. 667, held that a pupil placement system like that then existing in Bay County was not violative of the Constitution. Judge Carswell refused to follow Stell.

The School Board also sought to justify its procedures by arguing that race was not the sole factor it considered in making school assignments. It argued that the use of a racial index as one criterion in making pupil assignments was justified by inherent racial differences in intelligence and aptitude.

Judge Carswell flatly rejected this argument and stated:

"Without assessing or weighing this data, this contention simply ignores the plain requirement that individual pupils must be assigned to a school without regard to racial consideration. To be sure, there is no constitutional prohibition against assignment of individual students to particular schools on a basis of intelligence, rate of achievement, or aptitude upon a uniformly administered program so long as race itself is removed as a factor in making individual assignments. By the same token, any plan which does embody the universal testing basis for assignment may not be administered in a manner which would defeat the essential requirement that factors of race are not to be considered." 230 F. Supp. at 76.

In Pinkney v. Meloy, 241 F. Supp. 943 (1965), Judge Carswell held that a hotel barbershop was covered by the Civil Rights Act of 1964, even though 95 percent of its clientele were local residents. This was the first time a court had been asked to consider whether the Civil Rights Act extended to a barbershop located in a hotel. There were no other judicial interpretations of the Act which required Judge Carswell to decide in favor of the Negro plaintiff.

In Lance v. Plummer, 5th Cir., 353 F. 2d 585 (1965), Judge Carswell sat by designation on the Court of Appeals for the Fifth Circuit along with Chief Judge Tuttle and Judge Thornberry. The district court had granted an injunction to the civil rights plaintiffs against the defendant motel operators and others located in St. Augustine, Florida. The district court had ordered the motels in question to serve plaintiffs in compliance with the newly enacted federal Civil Rights Act, and had ordered the other defendants not to interfere with the plaintiffs in their efforts to obtain services at motels and other places in St. Augustine. Defendant Lance was a deputy sheriff whom the trial court found had followed some of the plaintiffs while they were trying to obtain accommodations, and defendant Lance was therefore found in contempt. The trial court ordered him to resign his position as deputy sheriff and refrain in the future from acting as a law enforcement or peace officer. The district court further ordered Lance to pay plaintiffs' attorneys' fees.

The defendants appealed, claiming principally that the sanctions imposed by the court were punitive, and that attorneys' fees should not have been awarded. The Court of Appeals, in an opinion written by Chief Judge Tuttle and concurred in by Judges Thornberry and Carswell, affirmed (with a minor modification) the judgment of the district court.

In two unreported decisions, Judge Carswell enjoined restaurants from discriminating against Negroes. Lamb v. Betts Big T (1966); Russell v. Ski Line Truck Center (1969).

In Baxter v. Parker, 281 F. Supp. 115 (1968), a Negro plaintiff brought a civil rights action against a sheriff and a county, alleging that the sheriff assaulted him. Judge Carswell held that the complaint stated a cause of action against the sheriff. He denied the sheriff's motion to dismiss and directed the sheriff to file an answer. Judge Carswell granted the county's motion to dismiss on the ground that it was a governmental subdivision of a state and thus not a "person" within the meaning of the federal statute.

Soon after Judge Carswell took his seat on the Fifth Circuit Court of Appeals, he joined with Chief Judge Brown and Judge Jones in affirming a district court decision holding a city ordinance unconstitutional. Robinson v. Coopwood, 415 F. 2d 1377 (1969).

A municipal ordinance of Holly Springs, Mississippi, required that the city police be given notice of any march at least one hour before its commencement. Marchers were required to identify the points of origin and destination as well as the route to be taken and the approximate number of participants. The notice was also required to inform the police of any mass meetings, assemblages, or demonstrations which were planned.

In support of the constitutionality of the notice requirement, the city argued that it exercised no discretion as to whether such marches could take place. No permit was required. The advance notice was solely for the purpose of permitting the police to perform their legitimate and necessary functions.

The plaintiffs argued that the notice requirement had been used to break up an existing peaceful march. The district judge agreed, holding that the notice requirement was an unconstitutional prior restraint upon the exercise of First Amendment rights.

The Court held that if the activities likely to occur during an assembly are not such as to incite people to violence or to threaten the security of the community or to interfere with the orderly function of governmental authority, it is a constitutionally protected activity and may not be made unlawful by the mere failure of its participants to have given law enforcement officers advance notice of their plans. There is no reason to require previous notice of an intention to conduct a peaceful assembly when there is no public danger reasonably anticipated.

B. Ten neutral civil rights decisions

Three categories of cases are included under this heading-those in which Judge Carswell's ruling as a District Judge was affirmed by the Court of Appeals; those in which Judge Carswell, while sitting on the Court of Appeals, joined in a unanimous decision with two concededly "liberal" circuit judges; and those