CONGRESSIONAL RECORD -- SENATE
November 21, 1969
Page 35368
SUPREME COURT OF THE UNITED STATES
The Senate, in executive session, resumed the consideration of the nomination of Clement F. Haynsworth, Jr., of South Carolina, to be an Associate Justice of the Supreme Court of the United States.
Mr. MANSFIELD. Mr. President, on this side, under the unanimous-consent agreement, I yield all the time except one-half minute to the distinguished Senator from Indiana (Mr. BAYH), and that one-half minute I will yield to the distinguished Senator from West Virginia (Mr. BYRD).
Mr. BYRD of West Virginia. Mr. President, in the interest of decorum, I ask that the Chair instruct the Sergeant at Arms that the floor be cleared of all staff personnel and the lobbies be cleared of all staff personnel until the vote on the Haynsworth nomination has been completed, with the exception of those staff personnel who are immediately needed by their respective Senators in connection with the Haynsworth nomination.
The PRESIDING OFFICER. The Sergeant-at-Arms is so instructed.
Mr. BAYH. Mr. President, I yield to the distinguished Senator from Maine (Mr. MUSKIE) such time as he feels he requires to cover the subject he addresses himself to.
Mr. MUSKIE. I thank the Senator from Indiana.
Mr. President, any Presidential nomination subject to the advice and consent of the Senate is a serious matter.
Any President, in the discharge of his constitutional responsibility to make such nominations, is entitled to the consideration of his selections on their merits.
His nominees, whose qualifications are in issue, are entitled to the fair and balanced judgment of the Senate.
The integrity of the political institutions involved -- and the confidence of our citizens in their effectiveness and evenhandedness -- must also be considered.
In appointments such as those to his Cabinet, the President is rarely denied confirmation of his choices. He is given wide latitude to implement his mandate at the polls by subordinates of his choosing, and his and their performance is subject to the approval or disapproval of the voters at the polls. Moreover, their tenure is limited, and their decisions and official actions are subject to legislative oversight.
Appointments to the Supreme Court of the United States, on the other hand, have been traditionally regarded as imposing a different and more independent kind of responsibility upon the Senate. The Senate, for example, has failed to confirm one-sixth of all nominations to the Court.
Supreme Court Justices are appointed for life. Their tenure may extend over decades, and their decisions and opinions can have a profound impact upon public policy and the direction of our national life for years to come. Their performance is not subject to the approval or disapproval of the electorate. Their decisions and official actions are not subject to legislative oversight.
In the light of these considerations, no Senator, I am sure, has taken lightly the responsibility of casting his vote on the appointment pending before us.
Clearly, men of good will, and integrity, and judgment, in and outside the Senate, have endorsed this appointment. Others, of equal good will, and integrity, and judgment have expressed opposition to it.
They have divided upon three questions:
First. Has the nominee, in the conduct of his personal business and financial affairs, been sufficiently sensitive to their implications relative to his responsibilities as a judge of the U.S. circuit court of appeals?
Second. Has the nominee, in the cases which have come before his court, been sufficiently sensitive to the need for meaningful implementation of the civil rights of all citizens?
Third. Has the nominee, in the cases which have come before his court, been evenhanded in his labor-management decisions?
I am most troubled by the first question. I am not persuaded that Judge Haynsworth is a dishonest man. His actions, however, raise serious questions about his sense of priorities and his sensitivity to judicial ethics which require a judge to avoid even the appearance of private gain through a public action.
From 1950 until March 1964, Judge Haynsworth was a one-seventh owner and a director of Carolina Vend-A-Matic, a lessor of vending machines. He had founded the corporation along with six other individuals, three of whom were his law partners and one of whom was a business associate. He served as its first vice president, and his wife was the corporation's secretary. As late as 1963, Judge Haynsworth remained as a trustee of the company's profit-sharing and retirement plan and attended weekly directors' meetings, for which his annual fee was as high as $2,600.
Since 1958 the company had done a substantial amount of business with mills controlled by the Deering-Milliken Co. Gross annual earnings from Vend-A-Matic's contracts with those mills totaled nearly $50,000 as of June 1963. In August of 1963, new contracts with other such mills increased those gross earnings to $100,000 per year.
Despite those connections, Judge Haynsworth sat, heard, and wrote the opinion in the preliminary phase of major labor litigation involving Deering-Milliken in 1961. In June of 1963, he heard the case on the merits as a member of the court of appeals and joined the 3 to 2 majority ruling in favor of Deering-Milliken. Moreover, the lawyers who argued the case for Deering- Milliken in 1963 were directors in the North Carolina subsidiary of Vend-A-Matic until they resigned on June 12, 1963 -- the day before the oral argument before Judge Haynsworth's court on June 13, 1963.
Judge Haynsworth not only failed to disqualify himself in the case, he also failed to disclose that one of the litigants was a major customer of a closely held corporation of which he was a founder, director, and officer -- a corporation in which he sold his interest in April 1964 for almost $450,000.
In 1968 Judge Haynsworth purchased 1,000 shares of Brunswick Corp. while it was a litigant in a case before him. The Department of Justice has raised only the most questionable defense for this stock purchase: that the case had been decided even though the opinion had yet to be issued. This action raises serious questions about Judge Haynsworth's sense of priorities and his sensitivity to judicial ethics which require a judge to avoid even the appearance of private gain through a public action.
What emerges from the evidence is the picture, not of a dishonest judge, but of a man who has exhibited a marked insensitivity to situations involving conflict of interest risks. Today, public confidence in our institutions requires more than this.
As the Supreme Court said in the Murchison case in 1955:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.
The Court added:
To perform its high function in the best way, justice must satisfy the appearance of justice.
On this first question, therefore, I regretfully conclude that I cannot vote to confirm the nomination of Judge Haynsworth.
In addition, however, I wish to record my concern over the implications of his opinions in the field of civil rights if his nomination is confirmed.
It has taken us over 100 years to shape public policy so that it moves in the direction of equal rights for all our citizens. In recent years Congress has enacted legislation to halt discrimination in education, public facilities, employment, housing, and voting. The Supreme Court has played an indispensable role in interpreting these acts, in insisting on an end to segregated schooling, and in insuring equal representation of voters. At long last, we stand on the brink of meaningful implementation of these rights.
It is the prerogative of the President, of course, to try to shift the direction and the thrust of the Count's opinions in this field by his appointments to the Court. It is my prerogative and my responsibility to disagree with him when I believe, as I do, that such a change would not be in our country's best interests.
Today, in my judgment, a Supreme Court Justice must be fully sensitive to the efforts of all Americans to participate fully in our society. He must consider, with understanding and compassion, cases which are enmeshed in the most perplexing social problems besetting our Nation.
Judge Haynsworth's record does not evidence the sensitivity and understanding that this task demands.
In 1962 Judge Haynsworth supported -- in a dissenting opinion -- a plan which avoided all but token changes in the segregated school system. This was a full 8 years after the Brown decision.
In 1963 Judge Haynsworth condoned further procedural delays for the black citizens of Prince Edward County, Va., who had been litigating, since 1951, to obtain education on a nonracial basis. These were the very same citizens whose rights were decided in the Brown case. Yet 9 years later, they found themselves in appellate courts still seeking to enforce that decision.
In 1956 they had defeated the Virginia Legislature's attempt to deny State funds to nonsegregated schools. In 1959 they had found the doors again slammed shut when the county closed all public schools and soon afterward initiated tuition subsidies and tax deductions to support segregated private schools. Finally, they won an injunction against the scheme from the Federal district court.
But on appeal in 1963, Judge Haynsworth reversed this injunction. While black children remained without formal education for their fifth year. Judge Haynsworth ruled that the constitutionality of the whole system depended upon how the State courts would decide subsidiary issues. The plaintiffs, in effect, were told to litigate again in the State courts, a right the Supreme Court had recognized 9 years previously. Fortunately, the Supreme Court overruled Judge Haynsworth and unanimously held the scheme a patently unconstitutional attempt to perpetuate segregated education.
Even in 1967 Judge Haynsworth was allowing perpetuation of segregated school systems by condoning further procedural delays. Again the Supreme Court overruled Judge Haynsworth.
In the complex area of school desegregation, opponents of equal rights have used procedural devices to achieve further delay. Judge Haynsworth, even though bound to follow the Constitution as interpreted by the Supreme Court, has too often sought out such grounds. His addition to the Court would not only have an impact on the Court's future decisions in this area, but would, I am afraid, further encourage those resisting meaningful desegregation.
On the third question which has been raised, there are environments which remain hostile to the rights of workers to organize; there remain significant issues which involve efforts to improve the conditions of the working man or his progress to find a better life.
These questions demand a careful understanding of the problems of labor and management alike. Judge Haynsworth's treatment of these issues does not appear to be consistent with that requirement.
In my consideration of an appointment to the Supreme Court, I do not expect the nominee's philosophical and political views to be carbon copies of my own. I recognize that, in the course of events, in a pluralistic society, the philosophical and political complexion of the Court will and should be responsive to the society which it serves.
And so I have voted to confirm judges, most recently the present Chief Justice of the Supreme Court, whose views appeared to differ from my own.
I am most concerned in the present case with the question of sensitivity to ethical questions and the need to strengthen public confidence in the Court.
Therefore, Mr. President, I shall vote against confirmation.