priety and the appearance of impropriety, and I wonder if you thought the strong burden placed on members of the bar as well as members of the bench should be used in reaching a national standard for judges?

Judge CARSWELL. If you're speaking in the abstract as to what I personally believe, if I drew up and wrote legislation, Senator, on the subject

Senator BAYH. Well, I am talking

Judge CARSWELL. Certainly a judge should not sit in a case where there is any appearance of impropriety. It is just that flat and simple. If there is anything more about the question that I have missed, I would like to know it.

Senator BAYH. Well, are you saying that you feel the canons of ethics should be used in trying to determine the standards of conduct

Judge CARSWELL. Concerning that specific canon of ethics: I would think the whole question of attempting to boil down moral and ethical standards into a code, ever since the Sermon on the Mount, has been rather difficult. The mechanical and intellectual process of putting into words these notions and ideas is itself difficult.

I have no objections to these canons; certainly they should be considered. They are fine principles, and they should be considered along with other appropriate standards of ethical conduct across the spectrum of the matter.

Senator BAYH. I won't ask you to comment on this, because I am sure it will fly right in the face of your understandable reluctance to deal with past cases. But to show you why I am asking you this, the latest decision relative to standards of conduct came down in 1968 in the Commonwealth Coatings case, Commonwealth Coatings v. Continental Coating, in which the court simply referred to the canon of ethics 33 in sustaining the position of the court to overthrow a lower court.

That is why I think it is an important thing for our consideration. Do you believe a judge should sit on cases involving close relatives, or in which such a relative is such a counsel.

Judge CARSWELL. I didn't hear the last part of your question. Senator BAYH. Do you believe a judge should sit on a case involving close relatives or in which a close relative is a counsel?

Judge CARSWELL. No, he should not.'

Senator BAYH. I think this is a normal question relative to Governor Kirk's efforts in the Florida case, in which I understand your son-inlaw is one of the counsel for the Governor, is he not?

Judge CARSWELL. He has a legal job in Governor Kirk's office. What his duties are, I haven't the slighest idea.

Senator BAYH. Nevertheless, you said you felt that you should not sit on a case in which counsel is a close relative?

Judge CARSWELL. A judge should not.

Senator BAYH. Let me ask you a question on a matter on which some criticism has been forthcoming. I would like to give you the opportunity to answer this before some criticism is made in the record.

This business of this party or social event that was held in your home relative to what some people have alleged were lobbying activities—

40-399-70- 4

would you give us your understanding of this so we can put the record straignt on it?

Senator TYDINGS. Mr. Chairman, why don't you put in the record the article that appeared in the Philadelphia Inquirer. I think that is the story to which Senator Bayh is referring. The headline is, “Party at Carswell Home Linked to Track Lobbyist."

Judge CARSWELL. I don't know what the article is.

Senator BAYH. I have another article, several pages about it.

Judge CARSWELL. I'll give my statement without regard to what any article says, because I know only what I know and that is all I know, and I am happy to tell you.

Senator BAYH. That is all we want to know.

Judge CARSWELL. All right, sir.

I had nothing whatsoever personally to do with that party being held under my roof. My brother-in-law, Jack Simmons, Jr., and his wife live-not immediately adjacent to us, but one house between.

Two of their children, ages 15 and 13, were killed in a tragic automobile accident on Saturday, the 1st of March, 1969. Which is not infrequently the case in our family, my wife, who is the sister of the father of these children, was asked if they could bring a party of people to our home because they simply felt that they could not have that party at their home.

These arrangements were made primarily between the wives, between my brother-in-law and sister and my wife. As I recall, I came into the party somewhat late. I knew some of the people there, some of the people I did not know. And, Senator, that is just all in the world there is to that, as far as I know. I had absolutely nothing to do with any of the suggestions of lobbying. I don't even know what was being lobbied.

Senator BAYH. One of the names in at least one of the articles I have here I suppose it is in the one Senator Tydings referred to The CHAIRMAN. Joe, do you want this in the record?

Senator TYDINGS. Yes, I think we should have it, because it sets forth the accusation about which we are concerned. The CHAIRMAN. It will be admitted.

(The newspaper article referred to follows:)

[From the Philadelphia (Pa.) Inquirer, Jan. 21, 1970]

PARTY AT CARSWELL HOME LINKED TO TRACK LOBBYIST

(By Clarence Jones, Inquirer Washington Bureau)

WASHINGTON, Jan. 21.-A reception and dinner party at Judge G. Harrold Carswell's home in Tallahassee, Fla., last spring was used in a sophisticated lobbying effort for a controversial racetrack bill.

The Supreme Court nominee's bother-in-law, Jack Simmons Jr., was one of the men who helped lobby a bill through the Florida Legislature permitting construction of a new horse-racing track halfway between Miami and Fort Lauderdale, Fla.

Judge and Mrs. Carswell were hosts for the party, but there is no evidence they were involved in any lobbying.

Simmons, a Tallahassee real estate broker, was at the party on the judge's lakefront lawn.

TRACK BUILDER THERE

So was Steve Calder, a Fort Lauderdale multimillionaire who is building the $12 million track.

Joe Benner, Calder's aide, and Colin English, a former Florida state school superintendent, also attended. Both Benner and English helped push the enabling legislation through the legislature.

Two state senators from Miami who were invited to the judge's house later said they regretted accepting the invitation.

Both said they resented Calder's presence in the receiving line.

"OBVIOUS LOBBYING"

"It looked like an apparent lobbying effort, State Sen. Edmund J. Gong said. "It was low-key, but obvious. If the judge didn't know about it, someone missed the boat as far as good taste is concerned."

The party may become an issue in Carswell's confirmation hearings before the Senate. Carswell opponents were talking about it in Washington Wednesday. An investigation of the reports found no evidence that Carswell had any part in inviting the racetrack proponents to his home.

Calder, the track owner, said he was invited by Simmons.

FOUGHT FOR 6 YEARS

Gong and State Sen. Kenneth Myers, also of Miami, were invited to the party by State Sen. Mallory Horne of Tallahassee. Horne was a cosponsor and acted as one of the floor managers for the Calder bill in the legislature.

Calder had tried to get his enabling legislation for six years. It was bitterly opposed by the owners of the three other horse-racing tracks in South Florida, who combined to fight Calder.

One lobbyist for "the big-three" tracks, Miami attorney George O'Nett, said he heard rumors during the legislative session that a party at Judge Carswell's home had been used to aid Calder's bill.

"I bounced off the walls and went to work to find out if there was any truth to it," O'Nett said. He said he talked to a number of legislators who attended. "They all told me they were there, but didn't feel they were lobbied, except for Eddie Gong," O'Nett said.

DISCUSSED AT PARTY

"The only thing I know is that Judge Carswell had a big party," Calder said. "There was no lobbying that I know of. I was a guest like everybody else."

But Calder admitted discussing the track with several legislators at the party. "Yes, I talked to all of them that were present," Calder replied. "We talked just about general things. A couple of them asked me about the track and I said I was trying to get it."

Was Judge Carswell even aware that Calder was pushing at the time for his racing legislation?

SURE JUDGE KNEW

"I feel sure he must have known it," Calder said. "He knew I was up there (in Tallahassee) and he knew me. But I don't think this had anything to do with it. He had a hell of a lot of people there who had nothing to do with the legislature, most of them town people."

Calder remembers that there were about 60 guests who were invited for cocktails followed by dinner, at tables set up on the judge's lakefront lawn. Gong and Myers put the size of the party closer to 45 people, with a third to a half of them legislators.

The Calder bill was one of the best-prepared pieces of legislation to hit the Florida Legislature in years.

LOST ONE FORTUNE

Calder, 69, lost his first fortune at the age of 26 when the Florida land boom burst. He now owns 39,000 acres of timber in Costa Rica, condominium apartment houses in South Florida, a plastics manufacturing firm, investments in Jamaica, a jai alai fronton in the Canary Islands, an interest in a Hollywood, Fla., drag-racing strip, and a sugar mill in Haiti.

Calder told a reporter last spring that he had no idea how much money he was worth. He placed the figure at somewhere over $10 million, but said it was difficult to keep track because of the fluctuating stock market.

The party at the judge's house occurred sometime in early April, after Calder's legislation was introduced but before it passed.

Senator BAYH. Mr. Steve Calder was supposed to have been pushing the racetrack and he lobbied some of the guests in your home, and you have no personal knowledge of that? Is that accurate?

Judge CARSWELL. I had nothing whatsoever to do with any lobbying at my house, Senator, at all. What conversations occurred between guests, they occurred between them and not to my knowledge or with my participation in any such activity of any kind whatsoever.

The sole reason it occurred in my home was because of the request of our in-laws as a result of the children's deaths.

Senator BAYH. One other case I would like to bring up, and then vield to Senator Tydings. It involves the Adams v. United States case, in which a fellow in your office prosecuted in a liquor violation—as I understand, while you were U.S. attorney.

Later on, when you were judge, this person appeared before you as a result of a charge of perjury in the original trial. Is this the kind of thing that concerns a judge, where he ought to disqualify himself? Do you feel that, really, the fact that you sat as one of the attorneys on one of the sides, prosecutor, in the previous case, that that does not officially constitute a conflict so that you should disqualify yourself? Or have I misunderstood or misinterpreted the facts?

Judge CARSWELL. I don't know about that, but I do know this: no man who has ever served as U.S. attorney would thereby forever be disqualified to be appointed U.S. district judge. If you give everyone who had appeared before him in a file judicial immunity, so to speak, from the judge's responsibility to try cases that come before him

Senator BAYH. I'm not suggesting that at all. I am suggesting that perhaps it is something to be concerned about if a man is accused of a perjury charge in one case in which a man is district attorney, when that perjury charge is then tried, the previous prosecuting attorney finds himself judge.

Judge CARSWELL. All I can say to that is that the majority of the court held that it was perfectly proper for me to sit on the case. As a matter of fact, it never was suggested to me at the time the case was tried that there was anything improper about it.

It was only after the case was on appeal and he had been convicted in this regard, that he filed a section 2255 collateral attack. This was raised on a collateral attack. I am sure I know what you're talking about here, because there was a dissenting opinion in that case. Two of the judges, Judges Tuttle and Bell, held that it was perfectly proper for me to sit. Judge Brown said it probably would have been better if I hadn't, but he went on to say he knew it was a completely fair trial in every respect, as the record will show.

Senator BAYH. I think you will find that basically, because the issue was not raised earlier, as you pointed out, it was later raised on appeal.

Judge CARSWELL. I would have to let the record speak for itself in that regard. It was sustained.

Senator BAYH. I am through. I appreciate your patience.

The CHAIRMAN. Senator Tydings wants to ask some questions, and we shall resume after the rollcall.

(Whereupon, there was a short recess.)

The CHAIRMAN. Let's have order, please.

Judge, is there anything else you would like to say about the country club case?

Judge CARSWELL. Yes, sir; I would like to make this one statement: Whatever the records show about that, of course, is the highest and best evidence. I testified here purely from memory.

No. 1, I had absolutely no discussion with anyone at any time about this matter having anything to do with discriminatory practices, if there were any.

No. 2, what I have to say about the matter is that whatever the records show and whatever capacity it may be listed that I am in, whether it be director, president, incorporator, or potentate, as I tried to suggest earlier, I had no conversations with anyone about any activities of that organization in any manner at all.

Now, what the details of the corporate transactions are as to when one was formed and what name appears on what piece of paper, those records would be the best evidence. I respectfully request that I be afforded the opportunity to get them in the record as fast as they get here, and they are already on the way.

The CHAIRMAN. You will be afforded that opportunity.

Senator Tydings.

Senator TYDINGS. Judge Carswell, you have been interrogated already about the 1948 racial supremacy speech. In your answer you repudiated it, said it was anathema to you, and repugnant to your position and your feelings of today.

You quite properly stated to the committee that we must determine whether or not you speak with conviction. You must realize that even though you have repudiated the speech today, that statement is insulting to many, many Americans. I think it would be helpful to us in determining just what your convictions are today, if we knew whether or not, even back in 1948, you were associated with those groups in your local community who are referred to, for lack of a better word, as the Ku Kluxers or the wool hat faction of politics. Were you a part of that political faction in Georgia when you were running for the legislature?

Judge CARSWELL. No, sir; no, indeed.

Senator TYDINGS. With which political faction were you associated? How would you describe your classification as a candidate?

Judge CARSWELL. Classified with the other candidates in that particular campaign? I was the liberal candidate, without a doubt. Senator TYDINGS. How old were you at the time?

Judge CARSWELL. I was then 28 years old.

Senator TYDINGS. Had you been involved in Georgia politics prior to that time in any way, for example, had you been involved in any governorship race?

Judge CARSWELL. No, I was 10 years old when my father made a campaign for the governorship of Georgia, but I really didn't have much to do with that, either.

Senator TYDINGS. Were you a lieutenant of the late Gov. Gene Talmadge? Did you support him?

Judge CARSWELL. No, I did not support him. As a matter of fact, I supported, in 1956, in the same Irwinton Bulletin, his opponent, James V. Carmichael, and had something to say about that. He was certainly the liberal candidate in 1946.