Once More, with Feeling

"God Almighty, did I say that? It's horrible!"

That was the first reaction of George Harrold Carswell last week when confronted with a blatantly racist speech he had made 22 years ago. The revelation came only two days after Judge Carswell, 50, was named by President Nixon to fill the Supreme Court seat vacated last May by Abe Fortas.

The embarrassment seemed like a playback of the recent Clement Haynsworth episode. That time, Attorney General John Mitchell and the FBI had overlooked Haynsworth's financial dealings, which led to ethical questions and eventually Haynsworth's rejection by the Senate. This time, Mitchell & Co. had apparently been so concerned in checking the nominee's finances that they overlooked another bit of damaging information. The Administration's bungle was all the more ironic because the Senate, after the bruising Haynsworth battle, stood ready to accept virtually whomever President Nixon chose the second time. Taking full advantage of that license, Nixon picked Carswell, who, like Haynsworth, is a strict constructionist, an interpreter of the law rather than an innovator, and a Southerner, from Tallahassee, Fla.

Carswell had made the speech in 1948 during his unsuccessful campaign for a seat in the Georgia legislature. "I believe that segregation of the races is proper," Carswell, who was then 28, told an American Legion gathering, "and the only practical and correct way of life in our states. I yield to no man in the firm, vigorous belief in the principles of white supremacy and I shall always be so governed."

Candidates, of course, often say things on the hustings better left unrecorded. But Carswell printed the speech in the Irwinton Bulletin, a home-town weekly newspaper that he had operated while he was a Duke University student. The browning copy was found last week by George Thurston, a newsman for the local CBS-TV station and TIME'S Tallahassee stringer, who aired his findings. Chagrined, a Department of Justice spokesman lamely tried to explain why the FBI had not bothered to check the Carswell contributions to the Bulletin: "If an FBI man had stopped to fill his tank" in Irwinton, a town of 700 people, he would surely have caused talk and then the news of the nomination would have been disclosed.

After the initial shock, both Carswell and Attorney General Mitchell issued statements about the remarks "attributed" to the judge--seemingly a vague attempt to hint that Carswell had never made the speech. Carswell said: "I denounce and reject the words themselves [of the speech] and the ideas they represent. They're obnoxious and abhorrent to my personal philosophy." The statement concluded with the wry comment that "incidentally, I lost that election; I was considered too liberal."

Ambitious. At the time he was running for office, Carswell was two months out of Mercer University Law School, editing the paper and running a local telephone company that he had helped to finance. Ambitious, having fought in the Pacific as a Navy lieutenant during World War II, Carswell might have figured that it was time to leave rural Irwinton, and politics was a way to do it. When his political bid failed, Harrold and his wife Virginia moved to her home town of Tallahassee. Carswell, a Democrat, was persuaded by a local newsman to take Eisenhower's side in a radio debate with an Adlai Stevenson backer. Soon he became known as Ike's advocate in Florida, and when the Republicans took office, Carswell was named a U.S. Attorney. He became a Republican, and in 1958 Eisenhower appointed him a federal district judge. Last spring, when Nixon and Attorney General Mitchell were shopping for a Chief Justice to replace Earl Warren, Carswell figured prominently among the contenders. After Warren Burger was named, Carswell was elevated to the U.S. Court of Appeals for the Fifth District. Now, after serving in that post for only six months, he will very likely become the ninth and youngest member of the Supreme Court.

Crisp Style. In assessing his colleague. Chief Judge John R. Brown of the Fifth Circuit says that Carswell has "the ideal combination of physical vigor and dynamic personality." He is not, says Brown, "a neutral spirit." In contrast to his pleasant, gregarious manner off the bench, Carswell's decision-writing style is crisp and cautious. New York University Associate Law Professor Leroy Clark, a black former Legal Defense Fund lawyer in Florida, calls Carswell "very bright." But, adds Clark, "he was probably the most hostile judge I've ever appeared before. He was insulting to black lawyers; he rarely would let me finish a sentence." As proof of Carswell's conservative civil rights record, Clark refers to a Yale University Ph.D. thesis by Mrs. Mary Hannah Curzan, a former political science student and wife of a Washington lawyer. Between 1953 and 1967, according to Mrs. Curzan's thesis, Carswell ranked eighth among 31 Southern district judges in rulings against blacks. Most observers agree that Carswell is less an interpreter of the law than Haynsworth in every area, including civil rights. While he was a district judge, 60% of his 23 civil rights decisions were reversed by the Fifth Circuit Court. In 1963, he dismissed a complaint on behalf of blacks who were trying to attend a Tallahassee theater; the Circuit Court reversed his ruling with the biting comment, "These orders are clearly in error."

Among his decisions for civil rights plaintiffs was a 1962 order that the rest rooms, counters and waiting rooms at Tallahassee airport be desegregated. In 1965, he ordered his own Tallahassee barber to cut black customers' hair. Civil rights activists complained that these decisions were painfully slow, in contrast to his quick handling of criminal litigation. But while the plaintiffs thought he dallied, the whites in Tallahassee complained that he was moving too rapidly. In most of his reversed decisions, Carswell had stuck closely to the letter of the law in ruling against civil rights plaintiffs. Thus, in a suit to desegregate the faculty of a formerly all-black school near Pensacola, Carswell reasoned that the Supreme Court's desegregation decisions in 1954 and 1955 referred only to students, not to faculty.

After becoming a circuit-court judge, he joined in granting a desegregation delay to five Southern states. It was a decision tacitly endorsed by Nixon's Southern strategist, John Mitchell. In mid-January, as Carswell and Mitchell were dining and discussing the impending appointment, the Supreme Court reversed Carswell's decision and told the states to desegregate by Feb. 1.

Upper Class. Carswell's decisions have reflected his close ties to the society in which he lives. As a member in good standing of Tallahassee's ruling class, he seldom misses one of the Cotillion Club's four annual formal dances. The Carswells have four children: two married, two in school, all living in the South. The judge lives on Lake Jackson, putters about his ten acres, plays bridge, and in the fall has a reserved seat at Florida State University football games. Carswell's defenders wonder if, once removed from this parochial atmosphere and faced with broad constitutional questions, he would become less conservative.

His vote will not make much difference on school desegregation, the only major racial issue still to be settled. In the Supreme Court's recent rulings, six of eight Justices have voted that a maximum of eight weeks should elapse between decision and desegregation. Carswell's vote could, however, be crucial in criminal cases and those involving free speech and other First Amendment rights. Several free-speech and dissent cases were scheduled to be heard early in this term, but were postponed. This is a strong indication that the Justices were split 4-4; if confirmed, Carswell might be expected to side with conservative Justices.

Despite protests from black leaders, it seems likely that the Senate will confirm Carswell, even granting his white-supremacy remarks of more than two decades ago. No one wants another Haynsworthian donnybrook, and much has changed--not least the attitudes of millions of other Americans about race --in America since 1948. Carswell wants to forget his past, just as many liberals have pleaded for their unreasoned remarks about Communism some 20 years ago to be forgotten. Republican Leader Hugh Scott seemed to sum up the Senate's attitude when he observed: "A wise man changes his mind often and a fool never."

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