January 29, 1970 — Statement in Opposition to the Confirmation of G. Harrold Carswell to the Supreme Court, US Senate Committee on the Judiciary, Washington DC

I thank this Committee for according me this courtesy of presenting my views on the nomination of Judge G. Harrold Carswell to the Supreme Court of the United States. I am here to testify against his confirmation, on the grounds that his appointment constitutes an affront to the women of America. Although women constitute the majority of this nation, we are still the most neglected and discriminated group insofar as employment opportunities are concerned. It is for these women that I must speak up today and voice my strong opposition and urge your careful and deliberate consideration of the matters which I shall present and which I believe go to the heart of Judge Carswell’s qualification to assume this high office.

Too long America has permitted the male dominance of our society to determine the manner in which women are given the right of equal protection of the laws. It should be as self-evident today as it was 50 years ago when women finally won their right to participate in their government, that the Constitution does in fact accord us full and equal employment opportunities. If this was not self-evident, then at the very least the provisions of the Civil Rights Act must be viewed as underscoring the equality of women and their rights to equal job opportunity. No matte with what generosity I review the recent decision in which Judge Carswell participated, I am unable to find any redeeming evidence in his favor on this most crucial issue.

The Supreme Court is the final guardian of our human rights. We must rely totally upon its membership to sustain the basic values of our society. I do not believe that the addition of Judge Carswell to this Court will enhance this guardianship.

I call to the attention of this committee the appellate decision of Ida Phillips v. Martin Marietta Corp., 416 F. 2d 1257, in which Judge Carswell participated on October 13, 1969, as a member of the fifth circuit court of appeals.

This case of enormous importance to the equal rights for women involved the issue of whether it was proper for a private employer to refuse to hire a woman solely on the grounds that she had preschool age children, where no such disqualification was placed on the hiring of men with children of similar age.

Ida Phillips had submitted an application for employment with Martin Marietta Corp. for the position of assembly trainee pursuant to an advertisement in a local newspaper. When Mrs. Phillips submitted her application she was told that female applicants with preschool children were not being considered for employment, but that male applicants with preschool children were. A complaint was filed with the Equal Employment Opportunity Commission which found that title VII of the Civil Rights Acts had been violated. The plaintiff then filed a class suit in the U.S. District Court for the Middle District of Florida, at Orland, Fla. The district court granted a motion to strike that portion of the compliant which alleged that discrimination against women wit pre-school-age children violated the statute, and refused to permit the case to proceed as a class action. The complaint itself, however, was not dismissed and the plaintiff was allowed to prove her general allegation. The court held that Ida Phillips was not refused employment because she was a woman nor because she had pre-school children. The court stated, “It is the coalescence of these two elements that denied her the position.”

An appeal was taken to the court of appeals for the fifth circuit.

A three judge panel of the court of appeals sustained the lower court. Following this decision, Judge Brown, the chief judge of the fifth circuit, made a request for a rehearing. This petition was denied. Judge Carswell voted to deny a rehearing. In so doing, I believe that Judge Carswell demonstrated a total lack of understanding of the concept of equality, and that his vote represented a vote against the right of women to be treated equally and fairly under the law.

Four million working mothers in this country have children under the age of 6 years. The decision of this court which Judge Carswell sustained in effect placed all of these women outside the protection of the laws of this land. The decision stated that if another criterion of employment is added to that of the sex of the person, then it was no longer a discrimination based on sex. It ruled that Ida Phillips was not refused employment because she was a woman, but because she was a woman with preschool age children. Judge Brown in his dissent said, “If “sex plus” stands, the Civil Rights Act is dead . . . free to add nonsex factors, the rankest sort of discrimination against women can be worked by employers. This count include, for example, all sort of physical characteristics such as minimum weight, shoulder width, biceps measurement, etc.” . . . “without putting on the employer the burden of proving “business justification” for such distinctions.” The court’s decision in effect gave sanction to this employer’s prejudices that mothers with young children are unreliable and unfit for employment. I believe that this is the very kind of discrimination which the act of Congress sought to prohibit.

The failure of Judge Carswell to even support the request made by the chief judge of the fifth circuit court for a rehearing is an indication of the man’s basic philosophy which I find totally unbecoming of a man being considered for appointment to the highest court of the land.

It was Judge Brown’s view that irrespective of the correctness of the lower court’s decision, the issue was of such fundamental importance that the full court had an obligation to review it. Judge Brown said:

Court decisions on critical standards are of unusual importance  . . . This is so because . . . effectuation of Congressional policies is largely committed to the hands of individual workers who take on the mantle of a private attorney general to vindicate, not individual, but public rights. This makes our role crucial. Within the proper limits of the case-and-controversy approach we should lay down the standards not only for trial courts, but hopefully also for the guidance of administrative agents in the field, as well as employers, employees and their representatives.

Judge Brown went on to say:

Equally important the full court should look to correct what in my view, is a palpably wrong standard.

Judge Carswell voted against this role of the court, and I believe demonstrated his lack of appreciation for this most important responsibility of our judicial system, the highest of which authority resides in the Supreme Court of the United States.

The Congress has acted in numerous ways to demonstrate its believe that working mothers with preschool age children should not be deprived of job opportunities by providing for day-care facilities for their children. This provision is the law in the social security amendments. President Nixon committed his administration to the vigorous support of providing more day-care facilities and underlined his support by saying that these centers for young children would offer more employment opportunities for mothers. Yet his appointment of Judge Carswell flies directly against the implementation of this belief. I find Judge Carswell’s attitude deeply prejudicial to this whole concept, particularly in that he would not even accord the plea of the chief judge of his court of the fifth circuit for a full court review of this landmark case.

It is not possible for me to dismiss remarks made by Judge Carswell when he was 28 years old stating his irrevocable belief in white supremacy, like white supremacy, is equally repugnant to those who really believe in equality.

Half this nation are women. I cannot believe that this half of America would vote to seat Judge Carswell on the Supreme Court when he would not vote to allow Mrs. Phillips a rehearing of her case even when that request came from a judicial colleague of the bench. To decide on such writs of review is the predominant work of the Supreme Court. Men who serve on this Court must have ahigh degree of sensitivity. I would probably not be here today if a rehearing had been supported by Judge Carswell in the Phillips case, regardless of the verdict or how he voted. The essential question is his failure to demonstrate even the slightest concern for Mrs. Phillips as a human being, a pauper, standing at the mercy of that court fighting for the rights of all women.

May I conclude, Mr. Chairman, by urging this committee to defer final action on this matter to allow for a full and extensive investigation. I believe that the women of this country deserve this concern. I plead for your favorable consideration of my request.

Source: Hearings, Ninety-first Congress, First Session, Pursuant to S. Res. 48, Ninety-first Congress, July 23,24, and 29, 1969. (Washington DC: US Government Printing Office, 1970), pp. 81-84.