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Senator Tydings. Would you care to comment on why you lost the race when you ran for the legislature?
Judge CARSWELL. I was considered too young, just out of the service, not to be trusted, on the liberal side, a little dangerous in racial matters, and as much too much of a liberal.
There was no question about it. I think that my opponents won the election on that basis. Senator TYDINGS. A few questions on another area, Judge Carswell.
You were the elected representative of the district judges from the Fifth Judicial Circuit at the meeting of the Judicial Conference on June 10, were you not?
Judge CARSWELL. Yes, sir. I was elected at Dallas the preceding April—April of 1968.
Senator TYDINGS. And you supported the resolution of June 10 pertaining to financial disclosure and nonjudicial activities?
Judge CARSWELL. I did do so.
Senator TYDINGS (presiding). Do you believe that the resolutions that were promulgated while you were down there had merit then and still have merit?
Judge CARSWELL. It certainly has merit, Senator. In saying this, in complete candor, I would have to amplify that a little bit.
This matter needs some most careful study, as it is getting now. There are many ideas, and it would be my personal one, as I indicated earlier, that no judge should receive compensation for outside services that he renders. There are many thoroughly honest, thoroughly able judges throughout this country, and have been for many, many years, who have participated in lecture series at our great universities. There is a great body of opinion in the academic world and elsewhere that stands for the proposition that we should not cut these lines and that there should be some reasonable fee for those kinds of services.
Senator TYDINGS. Judge, let me ask, just to save your time and the committee's time, do you believe in the public disclosure aspect of that resolution of the Judicial Conference ?
Judge CARSWELL. I do personally. I would not necessarily want all others to do so.
Senator TYDINGS. Why not?
Judge CARSWELL. Because this is a matter that I think needs to be worked upon and we need to get all the returns, so to speak, from Chief Justice Traynor's work and from the
Senator TYDINGS. Why did you support the resolution on June 10 if you don't believe all judges should make disclosure ?
Judge CARSWELL. If it came before me to vote, Senator, I would so vote now. I didn't mean to indicate otherwise. I would be perfectly willing, however, to have this matter examined in depth, which we didn't do, frankly, in 2 or 3 days.
Senator TYDINGS. Do you think the same restrictions should be imposed upon Justices of the Supreme Court as on all other Federal judges ?
Judge CARSWELL. Definitely.
Senator Tydings. You are aware, I suppose, of some of the reasons why the Judicial Conference took a step backward on November 1 and declined to support the June 10 resolutions ?
You are aware, of course, that at least two Justices of the Supreme Court have publicly stated that they would refuse to support any type of judicial disclosure?
Judge CARSWELL. I can't speak for them.
Senator TYDINGS. If you are elevated to the Supreme Court, are you going to be one of those Justices who take the position that because they are Justices of the Supreme Court, they should not be subject to any financial disclosure requirements ?
Judge CARSWELL. I personally-I cannot speak for what the Court may do as an institution, but I personally, as a Justice of the Supreme Court, would willingly make the same disclosure as a Justice of the Supreme Court as I have made and would make to this committee.
Senator TYDINGS. I commend you for that, No. 1. No. 2, are you going to be passive on the Supreme Court on this issue or are you going to be willing to state to the other Justices that you feel a Justice of the Supreme Court has the same responsibility as other judges of the Federal court? Because that is important to some of us.
Judge CARSWELL. That is difficult to answer. I certainly will give my views, Senator. I expect that they will know them by tomorrow morning. But what will be heard by them if I am a member of the Court and their response to it, I certainly couldn't speak of the Court, for the Court as an institution. I am not yet a member of it.
Senator TYDINGS. Let me rephrase the question. Do you see any constitutional or philosophical reason why Justices of the Supreme Court should not be subject to the same reporting requirements as lower court judges ?
Judge CARSWELL. Philosophically, I can see none whatsoever. Constitutionally, I would respectfully have to decline to answer the question on the matter, because that is directly in the area of these other things we have discussed before.
Senator TYDINGS. If the Supreme Court did not choose in the years to come to follow guidelines set down by the Judicial Conference with respect to disclosure, such as the June 10 resolution, would you voluntarily make such a disclosure, even though some Justices of the Supreme Court might not!
Judge CARSWELL. I would so do.
Senator TYDINGS. In 1963, the Judicial Conference of the United States adopted the resolution "That no Justice or Judge of the United States shall serve in the capacity of an officer, director, or employee of a corporation organized for profit."
I understand from your testimony that you strongly support this position!
Judge CARSWELL. I certainly do, Senator. I always have.
Senator TYDINGS. Do you feel that it should be applicable to Supreme Court Justices just as to any other judge of the Federal courts?
Judge CARSWELL. Without a doubt.
Senator TYDINGS. I think, Judge Carswell, you are aware that for the past 4 years, the subcommittee which I chair, the Subcommittee on Improvements in Judicial Machinery, has been involved in a detailed study of matters relating to judicial fitness on the Federal Bench.
In 1968, I introduced a Judicial Reform Act, and it has been reintroduced in the 91st Congress. The key feature of the Judicial Reform Act is the establishment within the judiciary of a commission capable of dealing with problems of disability and unfitness.
Now, do you feel that there is any need within the Federal judiciary for such a commission?
Judge CARSWELL. I have to be very careful in answering this and not be evasive at all. I certainly do not speak to any pending legislation that might come before the Court. I cannot do so.
I can say this, and do say this, that we all must recognize, as I am sure you, Senator Tydings, do
Senator TYDINGS. The machinery need not come by legislative action. It could come by resolution of the Supreme Court of the United States or resolution of the Judicial Conference. Legislation is the last straw, the last recourse, so to speak.
Judge CARSWELL. There is a problem within the judiciary in this field. Certainly it has to do with the senile, the sick, the improper judge. It is a serious problem, and we definitely need some established procedures to deal with them. There is no question about that.
Senator TYDINGS. Would you agree with the statement that, as presently constituted, there is no adequate machinery within the Federal Judiciary System for the removal or the retirement of the unfit or disabled judge?
Judge CARSWELL. The word "adequate," of course, is the key to the question. We have some procedures through the Judicial Councils. This is in an administrative area, nọt a judicial area. I think I can speak on this.
Some of the councils, in my judgment, have not taken an aggressive enough role and used the tools that they have available to them in this area. I think that may be the proper approach.
I share with you the overall aim of finding some instrument that will bring all of this into focus where it can be acted upon promptly and properly, with due respect to the person involved,
Senator TYDINGS. What is your feeling about mandatory senior judge status at the age of 70?
Judge CARSWELL. I have a very firm opinion about this and I don't hesitate to give it to you. I hope this is not beyond the realm of passing on the constitutionality of matters. I hestitate only to answer
Senator TYDINGS. Senior judge status,
Judge CARSWELL. This, of course, would not be applicable to the Supreme Court.
Senator TYDINGS. No,
Judge CARSWELL. With that understanding, I will answer it without any hesitation. I think it is what ought to be, it should be. I am in favor of it and always have been.
Senator TYDINGS. Judge Carswell, let me return to the Southern Louisiana Rate case, in which you were a member of a panel with Judge Brown and Judge Jones. The issue arose as to whether Judges Brown and Jones should disqualify themselves from the case.
It is my understanding and recollection that initialy in that case, the judges who were to disqualify themselves wrote letters to counsel in which thev advised counsel that they had interests in the various oil companies which might be affected by the case. Thev asked the counsel to come forward, if they wished, and suggest that thev disqualify themselves. Is that a fair description of the history of that case? in.
Judge CARSWELL. I cannot speak to this on this point, Senator, because I simply don't know what the actions of the judges to whom you refer were. I had no stockholdings in the case, don't now. I do know, of course, and the opinion so states, that the whole panel was dissolved and there' was never any exercise of any judicial function whatsoever by any one of the three of us at all.
I took the route of being very, very cautious, overly cautions, it may be. There was some question in my mind whether I should have asked a brother judge to take on such a task and decide that case. I might well have been criticized for evading a piece of hard work. But I felt in my own mind that, this case having been put together in one panel
Senator TYDINGS. I think the final step that was taken was the best step and the only step.
Judge CARSWELL. That is all I
Senator TYDINGS. The first step of sending the letter seems to me to have been an insufficient step. I think that evidently your panel agreed with that when they disqualified themselves.
Judge CARSWELL. I can only speak to what the opinion of the court was.
Senator TYDINGS. Judge Carswell, do you know whether or not, in your race for the legislature in 1948, you were opposed by the Ku Klux Klan?
Judge CARSWELL. I don't know who the members of the Ku Klux Klan were, but I certainly did not have their support. If the Klan was active in that campaign at all, it went to my opponent, not to me.
Senator TYDINGS. I have no further questions, Judge Carswell, except to say that the speech was unfortunate and that, as you pointed out, the members of the committee will have to pass upon your sincerity in renouncing the ideas expressed in that speech.
Before we recess, I would like to make two statements for the record, since I shall not be here in the morning. Tomorrow, there are going to be two witnesses who, if I were here, I would comment upon to the committee.
The first witness I would like to make reference to is Gov. Leroy Collins of Florida, in my judgment one of the great public servants of this generation. I would like for the record to make that comment for my brother members of this committee, and to formally welcome him to testify before this committee.
It has been my privilege to know Governor Collins since I first worked for Senator Jack Kennedy in the Florida campaign for the Presidency in 1960. Since then, my every experience with Governor Collins has shown me that he is a man of the highest integrity and, a great American.
I would also like for the record to state that the President of the Florida bar, Mark Hulsey, Jr., is a partner of one of my oldest and closest friends from Jacksonville, Fla., Lloyd Smith.
I have known Mark Hulsey, myself, personally, for some period of time. He has a very fine record in the bar. He has been president of the Florida bar, which I understand is the oldest integrated bar in the South.
He has also been very active in civic affairs in his State. He is a fine gentleman.
Senator Thurmond, do you have anything to add?
Senator THURMOND. I think the chairman said to recess after you have finished until tomorrow morning, so I shall wait until then.
Senator TYDINGS. We shall now recess until 10 a.m.
(Whereupon, at 5:10 p.m., the committee adjourned, to reconvene at 10 a.m., on Wednesday, Jan. 28, 1970.)