April 6, 1970
Page 10357
SUPREME COURT OF THE UNITED STATES
The Senate continued with the consideration of the nomination of George Harrold Carswell to be an Associate Justice of the Supreme Court of the United States.
Mr. KENNEDY. Mr. President, I yield 5 minutes to the Senator from Maine.
The ACTING PRESIDENT pro tempore. The Senator from Maine is recognized for 5 minutes.
Mr. MUSKIE. Mr. President, it is almost 2 months since I first announced my intention to vote against the confirmation of the nomination of Judge G. Harrold Carswell as an Associate Justice of the Supreme Court. Since that time, tens of thousands of words have been written and spoken on the nomination. They have not changed my position, because the facts have not changed, but they have deepened my conviction that Judge Carswell should not be a member of the Supreme Court.
I do not intend to prolong the debate today, Mr. President; but I do have a few observations which were triggered by the President's assertion that he has the prerogative to appoint, and that the Senate's role is limited to offering advice and consenting to his decision.
As a constitutional theory, Mr. President, that assertion is novel, but it is not sustainable. As a statement of the President's view of the federal system, it has an ominous ring.
Presidents may fret at the resistance of the Senate to certain of their proposals and nominations, but the authors of the Constitution knew what they were doing when they established our system of checks and balances. We tamper with that system at our peril.
The immediate question, however, is not the President's constitutional theories. The question each of us must answer is whether Judge Carswell meets the standards we believe should be met by a member of the highest court of the land. What we decide on this nomination, Mr. President, will hold not merely for the remainder of President Nixon's term, it will hold for many years, and it cannot be recalled by a change of political sentiment or a shift of political power.
Whenever an appointment to the Court becomes controversial, there is discussion of the respective roles of the President and the Senate. What does advise and consent mean? Does it impose a positive or a negative responsibility on the Senate? Does it limit the Senate's role to consideration of technical competence? Does the Senate have any responsibility or, indeed, any right to consider the quality of an appointee's background, experience, performance, understanding, judgment, insight?
Such discussion and debate, Mr. President, is useful in the long run, to shape and sharpen our understanding of the responsibilities of the President and the Senate in connection with these appointments.
However, Mr. President, I have no doubt as to the intent of the Founding Fathers in framing the applicable provisions of the Constitution. The result hoped for by them, I am sure, was a Court whose competence, judgment, and wisdom would inspire confidence among all Americans that the quality of justice to be dispensed by the Court would be the highest attainable quality. I am also sure that it is the responsibility of the President and the Senate to so interpret their respective roles under the Constitution as to contribute to that result.
Such a result, at any given point in our history, may well raise different questions as to specific nominees, as well as some obviously recurring questions relating to character, competence, and capability.
What questions are raised by this appointment? Was it the President's intent, in making this appointment, to bring the Nation together, having in mind the ugly divisiveness in the land? If so, he has failed to meet that objective.
Was it the President's intent, in making the appointment, to apply the test of highest judicial competence to nominees for the Supreme Court, in the tradition of Holmes, Cardozo, Brandeis, and Frankfurter, who have held this seat? If so, he has clearly failed to meet that objective.
Was it the President's intent to continue the Supreme Court as the honored place of last resort in the protection of liberty, privacy, and freedom of all Americans? If so, then he has failed to reassure millions of Americans that the record of this nominee shows a genuine concern or commitment to the cause of equal rights and equal justice for all Americans.
Was it the President's intent to provide the South with a representative on the Supreme Court of the United States worthy of the highest traditions of that region? If so, then again he has failed.
Was it the President's intent to strengthen the federal system of checks and balances? If so, then he has failed both in the candidate he has submitted to the Senate and in the approach he has taken to the Senate on the issue of confirmation.
Mr. President, I support the motion to recommit the nomination of G. Harrold Carswell to the Judiciary Committee, and I will vote against confirmation of Judge Carswell. I do so because I do not believe this nomination to be consistent with the needs of our country and our people in this divisive time.
Mr. PASTORE. Mr. President, will the Senator from Indiana yield me a minute or 2?
Mr. BAYH. I yield 2 minutes to the distinguished Senator from Rhode Island.
Mr. PASTORE. First of all, I want to congratulate the Senator from Maine for a very lucid and rational observation on this appointment.
I think, without casting any aspersions upon the President, and saying this in the most kindly fashion one can, facing the historical situation that presents itself now and also accepting the realities of life, the fact still remains that beyond the opportunity, possibly, or beyond the responsibility given to most Presidents, President Nixon will end up at the completion of his term with a so-called Nixon court. This in my humble opinion, points up the necessity and the responsibility on the part of Congress to be especially careful in the consideration of each nominee who comes before us.
Much has been said about our indulging in politics, so to speak, on this appointment. The senior Senator from Rhode Island as well as the junior Senator from Maine, I know, having had the right of appointment ourselves when we were Governors, would be the last two persons to play politics with an official Executive appointment.
I have spoken about the realities of life – the reality that the span of life will determine the makeup of the Supreme Court – its departures and its replacements. Here we are: We have a Justice Black, who is advanced in years. It is only a question of time before nature will necessitate his retirement from the Court. Then we have Justice Harlan and Justice Douglas. Three appointments will be coming up, with an existing vacancy.
In the case of Chief Justice Burger, we had no trouble. That appointment received almost the unanimous approbation of this body. There were only three "nays" – and that was a Nixon appointment. That was for the Chief Justice of the United States, the court of last resort. Then we were confronted with the Haynsworth appointment, which was repudiated by the Senate. Now we have this appointment. I do not know how this body is going to vote today or on Wednesday, but it is going to be a cliffhanger. I wonder if it is good for the country that we should be so extremely divided on this particular issue, as we are on many, many, issues which confront the people of this country.
I think the time has come when there ought to be greater care in the matter of nominations. The thing that has mystified me in both the Haynsworth appointment and the Carswell appointment is that there have been so many developments during the progress of the hearings before the Judiciary Committee and in the Senate debate that apparently were not known at the time the appointment was made. It strikes me that they could be a little more careful in research in the first place, and in the next place, these questions and doubts should go back to the committee for confrontation and consideration. That would be fairer to the nominee and to the Senate.
Frankly, I find it extremely difficult to vote against an official appointment. I said that at the time of the Haynsworth appointment. I think the first time I ever voted against an official appointment was in the case of Mr. Hickel, and the Senator from Maine knows why. He knows the oil situation in my State. The declarations that had been made by Mr. Hickel gave me cause to doubt whether or not he was the right man for the office. Since then he has adequately proved himself and I am very happy to know that.
Take the Haynsworth appointment. The President stood behind him to the end. I suppose that may be a mark of courage of one's convictions. I would like to be the first to give a helping hand to the President of the United States. I have said time and time again, whether it was an Eisenhower or a Nixon, I want to give the President of the United States the benefit of the doubt in any case because of the heavy burden he carries at this time.
The thing that frightens me at this time – and I use the word advisedly – is that here are two appointments to the court of last resort, and they say that beyond the Supreme Court of the United States, your only appeal is to God Himself.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. KENNEDY. I yield 1 additional minute to the Senator.
Mr. PASTORE. It strikes me that here we are confronted with a very, very sensitive, very soul-searching situation. This is nothing against the integrity of Mr. Carswell. I forgive him for the things he said as a youth. What kind of men are we, when we do not forgive a young man
for having said something in his twenties that he repudiates in his older years? I do not hold that against him. But much doubt has been raised as to the competence of the man. Associates of his who at first agreed to recommend him then withdrew their endorsement, and we do not yet know why. Certain responsible members of the committee have asked that the nomination be brought back for further hearing, and we got from the Senator from Arkansas–
Mr. GURNEY. Mr. President, will the Senator yield?
Mr. PASTORE. If I have the time.
Mr. GURNEY. The Senator made the statement that colleagues of Judge Carswell seconded his nomination and then withdrew it.
Mr. PASTORE. No, I did not say that.
Mr. GURNEY. What did the Senator say?
Mr. PASTORE. How did the Senator interpret what I said? I did not say that at all.
Mr. GURNEY. I thought the Senator was talking about the judge colleagues of Judge Carswell.
Mr. PASTORE. Yes. Judge Tuttle.
Mr. GURNEY. All right.
Mr. PASTORE. Does the Senator from Florida dispute that?
Mr. GURNEY. Let us set the record straight and see what he actually did.
Mr. PASTORE What did he do?
Mr. GURNEY. He wrote a letter to the Judiciary Committee, offering to testify.
Mr. PASTORE. And then
Mr. GURNEY. And the Judiciary Committee never asked him to testify. And he has never contacted the Judiciary Committee to this day. He did have an exchange of telegrams with the Senator from Maryland (Mr. TYDINGS).
Mr. PASTORE. Why does not the committee call him before the committee and have him testify?
Mr. GURNEY. I do not know why.
Mr. PASTORE. Is it not strange to the Senator from Florida–
Mr. GURNEY. Let me complete this. I know why he did not testify. It was because he was confused about the Tallahassee golf club incident. I would rather expect that if you could get into the judge's mind today, you would find that he was very embarrassed about the fact that he did misunderstand the golf club incident. That is what the thing was all about. He never did give this endorsement and then withdraw it. That is the point I am trying to correct, because there has been too much representation and misrepresentation of that by a great many Senators.
Mr. PASTORE. I do not know about that.
Mr. GURNEY. When the Senator says he gave–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. KENNEDY. I yield 5 additional minutes to the Senator from Rhode Island.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized for 5 additional minutes.
Mr. PASTORE. The fact still remains that we are talking about confusion. More than 35 Senators–
Mr. GURNEY. There certainly is confusion
Mr. PASTORE. I permitted the Senator from Florida to speak. Now I ask that he give me a chance to make an observation on his observation.
The fact still remains that more than 35 Senators are still confused about what Judge Tuttle did or did not do. I, for one, am like the Senator from Arkansas, who said, "Let it go back to committee, and let us find out what Judge Tuttle did say."
If anybody can prove to me that a nominee has the competence to serve on the Supreme Court of the United States, I do not care whether he comes from Florida or Alaska, this is one country where if the President of the United States wants a constructionist, if he wants a southerner, of course he has a perfect right to nominate anyone from any part of the country. But what I am saying is that there has been almost a deliberate attempt – I do not know on the part of whom, but one can almost smell it – a deliberate attempt to keep Judge Carswell away from that committee.
I ask the question, Why? Why?
If this man has an explanation about that golf club, then let him come in here and tell us about it.
The point he made – as I read it in the newspapers – was that he came before the committee, and when they asked him whether he was a charter member of that golf club, he said, "No."
Then an affidavit or a memorandum has been produced on the floor of the Senate by two members of the American Bar Association who claim that only the night before, he admitted that he was a charter member.
These things have not cleared up. We are not talking about a minor ward committee. We are not talking about an executive committee in city or State. We are talking about the Supreme Court of the United States of America.
I think we have a right to know all the facts. I repeat, I wish that something would transpire so that I could find it in my heart to hold up the hand of Richard Nixon. I have nothing against him.
I have supported him when many of my colleagues found it necessary not to do so.
I have said to the President of the United States that any time there is a doubt in my mind, I will resolve it in his favor.
But, this is more than a doubt. This is a factual situation. I think that we should have an explanation.
They say this is a question as between liberals and conservatives. That is not so at all. They talk about politics. My goodness gracious, there are half a dozen Republicans who want to stand behind the President and who are going to campaign with the President, yet they are going to vote against this appointment. I ask the question, Why? Why?
Mr. AIKEN. Mr. President, will the Senator from Rhode Island yield?
Mr. PASTORE. I yield.
Mr. AIKEN. I noticed that the Senator looked in my direction, and I am quite flattered. I stand for law and order, and it is about time we had a little more of it. It is time to stop apologizing to every criminal that gets hauled into court. That is the issue today. It is time to face it squarely.
Mr. PASTORE. It is. I am the first one who said just that. I am the first one who criticized the Supreme Court on pornography. I am the first one who said that the Court went way out on the question of pornography. I am against that. I stood up for Burger. I will stand up for any Nixon appointment, provided it is proved to me that he should be the man.
The allegation of playing politics is poppycock. Any reasonable man on that side of the aisle knows it.
Let us cut out the subterfuge. Let us stand up and look at the facts.
That is all I have to say, and, Mr. President, if my 5 minutes have not been used up, I yield back the remainder of my time.
The ACTING PRESIDENT pro tempore. The time of the Senator from Rhode Island has expired.
Mr. PASTORE. Has it expired again?
Mr. KENNEDY. Mr. President, I yield 5 additional minutes to the Senator from Rhode Island.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island is recognized for 5 additional minutes.
Mr. GORE. Mr. President, will the Senator from Rhode Island yield?
Mr. GURNEY. Mr. President, will the Senator from Rhode Island yield?
Mr. PASTORE. I yield to the. Senator from Tennessee and then I will come back to Florida. I will come back to Florida [Laughter.]
Mr. GORE. Mr. President, the Senator has just said that we should look at the facts.
Should we not first have the facts to look at?
Mr. PASTORE. That is what I mean. That is certainly what I mean. As a matter of fact, the Senator from Tennessee has used reverse English. But, it is plain either way. It is very plain.
Now I am glad to yield to the Senator from Florida.
Mr. GURNEY. Mr. President, again I want to set the record straight. Does the Senator from Rhode Island know – I know he did not do it intentionally – but I believe that he made a misstatement–
Mr. BAYH. Mr. President, will the Senator from Florida yield?
Mr. GURNEY. No; not at this time.
Mr. BAYH. The Senator will recall–
Mr. HRUSKA. Mr. President, I yield 2 minutes to the Senator from Florida–
Mr. PASTORE. They have given me 5 minutes. We should be generous and let him speak. Let us be generous here.
Mr. BAYH. Yes, but we do not want to use all the Senator's time.
Mr. PASTORE. We do not want to be picayunish here. Let us stand up like men. Let us discuss this thing openly.