views on Senate 1506. These documents will be incorporated in the record at an appropriate place.

Senator Hart?

Senator HART. I join my chairman in welcoming Mr. Segal again and to both of them suggest that while they may have been involved in more exciting and dramatic undertakings in their full lives, the double handed contribution each is making to persuade Congress to do what Mr. Segal has told us should be done now may very well be the most significant in the long term of anything they have been engaged in.

I think my chairman has done what few would have ever dreamed possible just a few years ago and the progress he has made is more than anything else the reflection of the support that the American Bar Association, largely through the persuasion of Mr. Segal, has given to this idea.

I am just here to thank you both.

Senator TYDINGS. Thank you, Senator Hart. Mr. Segal, I have one question. On page 12 of your statement you state:

I am convinced that the American people still revere their judges, although I wish that this were reflected in a public insistence that judicial selection be made by methods designed to produce only highly qualified judges in all the courts of the land.

This opens an interesting door with respect to the methods by which the American Bar Association, the Walsh Committee, made its comments on the recent Carswell nomination. I do not wish to put you in a difficult position, but there has been considerable debate on the floor of the Senate which is not uncritical of the manner in which the Walsh Committee reached its verdict or recommendation upon the Carswell nomination. I wonder whether you have any comment on this general area, and I would like to restrict it now to Supreme Court Justices, not to district court judges and the U.S. circuit court judges, because I think that as to those two groups of judges the efforts of the American Bar Association have been exceptionally well handled and have helped greatly.

But you might, if you wish, comment on this.

Mr. SEGAL. Well, Mr. Chairman, I have no hesitancy in commenting on the procedural questions you ask. I think it is only fair to say of the committee, and I should add parenthetically that I did not participate in its deliberations, that this is the only year in the last 15 in which I am taking a sabbatical from passing on the qualifications of specific persons under consideration for any Federal court.

First of all, if I did that, did it conscientiously, I would be doing nothing else and I have one or two other assignments to perform as ABA president.

I have, however, reviewed very carefully what the committee did. It interviewed every single judge of the U.S. Court of Appeals of the Fifth Circuit. According to the reports I have read, with only one exception was there the slightest question raised concerning Judge Carswell. Every one of the judges

Senator TYDINGS. When did they interview them?

Mr. SEGAL. They interviewed them between the time the President announced the nomination and the date on which the committee filed their report with the Senate Judiciary Committee. One judge raised the question of differences of view between him and Judge Carswell in

the field of civil rights. The others ranged from feeling that he was qualified to expressions of highest praise for his qualifications for the Supreme Court.

you

Judge Walsh gave a speech just a couple of nights ago in which he quoted the comments made to him. I commend that speech to you, Mr. Chairman, and Senator Hart. I will be glad to send copies if would like to read it. He quotes verbatim without, of course, attribution as to individual, the answers that came from the men who had sat in the court to which appeals from his rulings went for many years and in which he had sat for several months.

They interviewed a substantial majority of the district court judges in the State of Florida.

Senator TYDINGS. Let me ask you this: With respect to the appeals court judges, were any of them interviewed after the Senate hearings? Mr. SEGAL. No, but it is my understanding that none of them has expressed a change of opinion up to now as to the qualifications from the standpoint on which the committee passes.

Senator TYDINGS. When the letter was circulated to obtain signatures from the Fifth Circuit there were seven signatures that were missing, two of which, Judge Tuttle and Judge Wisdom, would decline to testify and, as a matter of fact, definitely refused. Was this taken into consideration by the committee?

Mr. SEGAL. Well, you understand again, Mr. Chairman, I am speaking I am giving you the replies which came to me primarily from the chairman in response to many, many inquiries I made in the course of these debates.

Senator TYDINGS. How did

Mr. SEGAL. If I may just finish this one thought, I should like you to realize, first, what the committee found. It found that Judge Carswell was qualified from the standpoint of integrity-I want to get that just right I would have had this right out if I knew you were going to ask me this, but it is here. Here it is.

I should like to amend first one thing, if I may. There were two circuit judges who were not available. Thirteen of the fifteen were interviewed and I might say that on the question of integrity, temperament, and professional competence, which are the three grounds, not one of these 13 judges expressed any doubts. As I say, one judge-let me just read you what some of them said.

These are the circuit judges: "The appointment is one of the best the President could have made," and "Judge Carswell has sat on this circuit for 11 hearing weeks during his tenure as district judge which is the equivalent of a full year's work on the Court of Appeals. This was primarily because of his ability and his willingness to do extra work." Another spoke of him as "a very strong judge." Another spoke of the "soundness of his thinking." Another spoke on the "excellence of his handling of two school board cases." Another spoke of him as "highly regarded." Another rather amusingly, "he stood out like a ripe apple for this appointment." Another, he is "one hundred percent able," and another, the President "could not get a better man".

Another, "a man for this time and place." Another, "a real top notcher, capable of scholarly work, capable of carrying a heavy load." Another, quite, "as good as they will find, able and vigorous, no Cardozo but he will be good." And another "sensitive and compassionate with everything that goes to making a good judge.”

Now, the committee defers to the Senate in recognizing that the Senate is in a better position than is the committee to pass upon matters and factors of a broad political and ideological nature within the discretion of the Senate and the President. I happen to believe that the President's and the Senate's discretions are equal in so far as the obligations_respecting such appointments are concerned.

Senator TYDINGS. Do you give the Supreme Court Justices the same type of screening that you give the normal nominee for judge of a circuit court?

Mr. SEGAL. Well, you have to recognize, first, that the President has changed the method which his three predecessors used. Right after the appointment of the Chief Justice Warren Burger, the President met with us and announced that he was no longer-that he was not going to follow the example of Presidents Eisenhower, Kennedy, and Johnson in submitting the names of a candidate to the committee prior to the nomination. This took away what I regard as a critical factor and that is the ability to argue with the Attorney General in advance whether a man should be appointed. You know from your personal experience, Mr. Chairman, numerous occasions as to vacancies in lower Federal courts where we were able to persuade an Attorney General not to appoint to a court a man who was qualified but rather to hold out for one who was well qualified or exceptionally well qualified. If this is true in the district court and the courts of appeals, how much more true should it be in the Supreme Court?

Senator TYDINGS. Is the President following the EisenhowerKennedy-Johnson pattern in so far as appointments to the district courts and the courts of appeal are concerned?

Mr. SEGAL. Yes. I would have to say that there he is following it implicitly and in my judgment as a result, No. 1, we are getting better judges and I have no hesitation in saying that through the committee's agency, the court has been spared several judges with the strongest kind of political backing who, and this is purely an opinion, but I think it is an informed one, would have been appointed if the President and the Attorney General had not been armed with the "not qualified" finding of the Committee.

I may say, Mr. Chairman, that President Nixon is the first President since the system was instituted who in his first year in office has not appointed to the district courts or the courts of appeals a single judge whom the committee found to be not qualified. I think this is the progression of the system and this is one reason that I think the President, and I say this with the fullest deference, should now change his viewpoint. He said at the time of our meeting it was "for the time being that the Attorney General would no longer consult the ABA as to Supreme Court nominations." I believe whatever may have been the case up to now, that the interests of American justice would be served if professional opinion by whomever it is given were consulted before the appointment is made.

Now, if that doesn't happen, then I think large changes are called for in the way the committee operates. I may say very frankly that I have urged these upon the committee long before now. I think the committee is now persuaded that unless the President does change his view on that question, the committee should change its procedures to

conform with the requirements of the different circumstances of passing upon a man after rather than before his nomination.

For example, I believe very strongly that if the President should determine, and I hope he doesn't, not to grant the request we are now going to make of him and the Attorney General, to reinstate the prior procedure or some substitute procedure which gives the American Bar Association the opportunity to debate qualifications prior to nomination, that the committee in the first place should reserve the right not to report to the Senate Judiciary Committee until after the hearings

are over.

In the second place, I believe that the Senate and the American people are entitled to more than a single classification of a man's qualifications. I believe they are entitled to know where he stands in the views of the organized bar. Is he a man who is just barely qualified? Is he a man who makes your spirits soar so that you would call him exceptionally well qualified?

I am hopeful that the committee will now adopt very substantial changes as to its handling of nominations for the Supreme Court just as I hope it will adhere to its present practices which I think are execllent in respect to the courts of appeals and the district courts as you, Mr. Chairman, have said.

Senator TYDINGS. Thank you very much, Mr. Segal.

Senator Hart.

Senator HART. As long as this has been raised, Mr. Chairman, what would your reaction be, Mr. Segal-no matter how I phrase the question it will imply that I think the composition of the committee which you headed for so many years was not representative. It was representative of the very best at the bar. Let me make that very clear. As far as I know it still is.

But it does not include anyone very much younger than I am and I regret to say that is not very young, and it certainly does not include anybody whose color is different from mine. It represents the men who have demonstrated excellence in the practice of what you and I were prepared for when we were in law school-when a course on poverty law would have sounded like something that was suggested by somebody just arriving from the moon. And in the matter of the environment, I suppose you went to the school of natural resources if you wanted to find a book on that subject.

What about the suggestions now being made that the composition of that committee, whatever your procedures may be, requires review? Mr. SEGAL. Well, let me say that Judge Walsh has suggested the thought that as to the Supreme Court there ought to be a reviewing committee headed by the president of the American Bar Association, a reviewing committee for the Committee on Federal Judiciary as it is now constituted. But as to the question you raise, you at best have one man for each circuit. There is no way one man can be representative. There is no way you can pick a man in the South, representative of the South, and then pick another type of man to offset him who nevertheless would be representative of the North.

The strength of the committee in its procedures is this. The committee is only a conduit. The committee is a conduit for the opinions expressed by the judges and the lawyers who know the nominee or the prospective nominee best in the community in which he practices,

weighed and sifted, but all the committee really does is convey to the Attorney General a composite.

That brings the question you have raised, and I think it is a very pertinent one, right to the foreground. If the committee has not both interviewed and reflected the views of every segment of the bar-in the personal injury field, plaintiffs and defense counsel; in the antitrust field the same, the minority groups in the community, whether they be black or whether they be Mexican American, Spanish American, in some communities the minorities are Catholic members of the community or Jewish members; if the committee has failed to explore the views of every segment of the bar, it has failed in a basic essential of its mission. If it has not conveyed to the Attorney General the differences that exist among those interviewed, it has likewise failed. But I can assure you, Senator, I would like to bring in some of the reports on prospective nominees for lower courts and you may read them-reports that go as high as 30, 40 pages. Every person interviewed, what he has said, is quoted or paraphrased in the report. So that by the time, given the necessary period that it requires, by the time an opinion is written, the person who conducts the investigation has done what you have suggested. There is no way that this committee-the reason people are on this committee who are 40 years and over is that there is a certain amount of experience that is required when you are to judge the qualifications, when you are going into character, into temperament, the most difficult of all I think to judge, how-what the robe will do to a man. It elevates some to heights they never attained before, but unfortunately it derogates some below levels they have ever reached before, in arrogance for example.

I think that the real answer is a thorough exploration of whether, as to the Supreme Court nominations, the committee does inquire on a national basis of every segment of the bar and whether its reports reflect the results of that investigation because you could never get, I repeat, a single individual in any one community representative of the total community. We try to get people who are objective, who have demonstrated their ability to investigate and present facts fairly, and who are acceptable to every segment because otherwise they won't get frank expressions of opinion.

If you appoint a young member of the bar, for example, and he calls the chief judge of the circuit and says: "Judge, I want you to tell me frankly what you think of so-and-so," he will not get a frank expression. If he calls his fellow members of the bar he won't get it.

Now, I have found, for example, that when I want to get what the younger members of the bar think, I call on one of my young associates because he has greater credibility with the younger members of the bar than I have. They will talk more frankly to him. And these are part of the investigating procedures. But I fear that no matter what we do, unless we are going to get an immense and cumbersome committee, we are never going to be able to represent the various factors on the committee itself.

Now, you mentioned no black member. As you may know, I am very conscious of that. I have gone through all of the ABA committees with a view to giving very full and adequate representation to minority groups, and especially black lawyers. I have met with the officials of the National Bar Association, the official representative of the black bar of America, to counsel with them as to how we can give better

51-842 0-71—10