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Carswell Testimony

Go here for more about  Betty Friedan.

Go here for more about
 Betty Friedan's Testimony.

Photo above:
Left - Betty Friedan, photograph by Fred Palumbo, 1960. Library of Congress.
Right - Judge Harrold Carswell, photograph by Richard Parks, 1969. Florida State Archvies.

It follows the full text transcript of Betty Friedan's testimony at the judiciary hearing considering Geroge Harrold Carswell's Supreme Court nomination, U.S. Senate, Washington D.C. — January 27, 1970.


Betty Friedan - Speech Mrs. FRIEDAN: I am Betty Friedan and I am a writer.

I wrote a book called "The Feminine Mystique," and I am here to testify before this committee to oppose Judge Carswell's appointment as Supreme Court Justice on the basis of his proven insensitivity to the problems of 51 percent of U.S. citizens who are women, and especially his explicit discrimination in a circuit court decision in 1969 against working mothers.

I speak in my capacity as national president of the National Organization for Women (NOW) which has led the exploding new movement in this country for "full equality for women in truly equal partnership with men," and which was organized in 1966 to take action to break through discrimination against women in employment, in education, in government, and in all fields of American life.

On October 13, 1969, in the Fifth Circuit Court of Appeals. Judge Carswell was party to a most unusual judiciary action which would permit employers in defiance of the law of the land as embodied in title VII of the 1964 Civil Rights Act to refuse to hire women who have children.

The case involved Mrs. Ida Phillips, who was refused employment by Martin Marietta Corp. as an aircraft assembler trainee, because she has preschool age children, although the company said it would hire a man with preschool age children.

This case was considered a clear-cut violation of the law which forbids job discrimination on grounds of sex as well as race. The Equal Employment Opportunity Commission, empowered to administer title VII, filed and amicus brief on behalf of Mrs. Phillips. An earlier opinion of the fifth circuit filed in May upholding the company was considered by Chief Judge John Brown such a clear violation of the Civil Rights Act that he vacated the opinion and asked to convene the full court to consider the case.

Judge Carswell voted to deny a rehearing of the case, an action which, in effect, would permit employers in the United States today to fire 4 million working mothers who have children under 6. These mothers comprise 38 percent of the nearly 11 million mothers in the labor force today.

Judge Carswell said yesterday in answer to Senator Bayh's question— I was here in the room—that he understood full well—it was not a pro forma matter—that he understood full well the effect of his ruling here.

Now, in his dissent to this ruling in which Judge Carswell with others claimed no sex discrimination was involved, Chief Judge Brown said:

The case is simple. A woman with preschool children may not be employed; a man with preschool children may. The distinguishing factor seems to be motherhood versus fatherhood. The question then arises: Is this sex-related? To the simple query, the answer is just as simple: Nobody—and this includes judges, Solomonic or life-tenured—has yet seen a male mother. A mother, to oversimplify the simplest biology, must then be a woman.

It is the fact of a person being a mother—i.e. a woman—not the age of the children, which denies employment opportunity to a woman which is open to men.

It is important for this committee to understand the dangerous insensitivity of Judge Carswell to sex discrimination. When the desire and indeed the necessity of women to take a fully equal place in American society has already emerged as one of the most explosive issues of the 1970's, entailing many new problems which will ultimately have to be decided by the Supreme Court.

I suppose I am as much an expert as anybody on this explosion, since I seem to bear a major responsibility in helping to unleash it in this country and bringing it to consciousness. I say that it is a matter of historic necessity, almost, that women are today exploding in their belated insistance that they be able to use their rights under the Constitution and move equally in American society, especially in employment.

This necessity is historical in two ways: Biology and the advances in science in this world, in society which man has made, give a woman today 75 years, on the average, of human life. A relatively small proportion of these years now can be spent or must be spent in child rearing and child bearing. So a woman has the majority of the years of her adult, human life and most of her human energy to be spent in society. She has no other place to use it. Secondly, the economics of our time have made it a historic necessity for women to move to full equality in society. I speak here now not only of the standards of living of a society of affluence where our demands for bringing up our children and giving them education require in most instances a two-income family or in the great many instances where women are the sole support, require women to work to pay for what they and their children need; but also, the technology has removed from the home many of the tasks that used to be performed there and those tasks are now done outside in society, from the educating of children themselves to the baking of the bread and the weaving of the clothes. Women, along with others, must pay for these things and must have, in effect, a share of the work in society in order so to pay.

In any event, this explains why, according to Government figures, over 25 percent of mothers with children under six are in the labor force today.

Over 85 percent of them work for economic reasons. Over half a million are widowed, divorced, or separated. Their incomes are vitally important to their children perhaps even more important as a portent of the future is the fact that there has been an astronomical increase in the last three decades in the numbers of working mothers. Between 1950 and the most recent compilation of Government statistics, the number of working mothers in the United States nearly doubled. For every mother of children who worked in 1940, 10 mothers are working today, an increase from slightly over one and a half million to nearly 11 million.

In his pernicious action, Judge Carswell was not only flaunting the Civil Rights Act, designed to end the job discrimination which denied Avomen along with other minority groups equal opportunity in employment, but was specifically defying the policy of this administration to encourage women in poverty, who have children, to work by expanding day-care centers rather than the current medieval welfare system which perpetuates the cycle of poverty from generation to generation. Mothers and children today comprise 80 percent of the welfare load in major cities.

Judge Carswell justified discrimination against such women by a peculiar doctrine of "sex plus*' which claimed that discrimination which did not apply to all women but only to women who did not meet special standards—standards not applied to men—was not sex discrimination.

In his dissent, Chief Judge Brown said, "The sex plus rule in this case sows the seed for future discrimination against black workers through making them meet extra standards not imposed on whites." The "sex plus" doctrine would also penalize I submit the very women who most need jobs.

Chief Judge Brown said:

Even if the "sex plus" rule is not expanded, in its application to mothers of pre-school children it will deal a serious blow to the objectives of Title VII. If the law against sex discrimination means anything it must protect employment opportunities for those groups of women who most need jobs because of economic necessity. Working mothers of pre-schoolers are such a group. Studies show that, as compared to women with older children or not children, these mothers of pre-school children were much more likely to have gone to work because of pressing need . . . because of financial necessity and because their husbands are unable to work. Frequently, these women are a key or only source of income for their families. Sixty-eight percent of working women do not have husbands present in the household and two-thirds of these women are raising children in poverty. Moreover, a barrier to jobs for mothers of pre-schoolers tends to harm non-white mothers more than white mothers.

I am not a lawyer but the wording of title VII of the Civil Rights Act so clearly conveys its intention to provide equal job opportunity to all oppressed groups, including women—who earn today in America on the average less than half the earnings of men—and this discrepancy is worse this year than it was in previous years—that only outright sex discrimination or sexism, as we new feminists call it, can explain Judge Carswell's ruling.

I would recall to this committee the exact wording of title VII of the Civil Rights Act of 1964, which provides that:

(a) It shall be an unlawful employment practice for an employer—

(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

These two provisions, of course, clearly cover the Martin Marietta case.

At the very least, Judge Carswell's vote in the Martin Marietta case reflects a total blindness to the very real problems women face today, in attempting at long last to use the rights guaranteed in the Constitution to assume full participation in American society, which is their necessity as human beings in the 1970's. The blacks until recently could say, with bitterness, that they were the "invisible men" in America. women have lately realized and with increasing vocal bitterness that they are invisible people in this country. And paradoxically, they are invisible as people precisely to the degree that they are too visible as sex objects—defined and used as sex objects to sell every conceivable product by American business, and yet denied the opportunity to earn a decent salary or hold a decision-making position in virtually every business or profession in America today.

This is what sexism is all about; this is the heart of it.

Human rights are indivisible and I and those for whom I speak would oppose equally the appointment to the Supreme Court in 1070 of a racist judge who has been totally blind to the humanity of black men and women since 1948 as to a sexist judge totally blind to the humanity of women in 1969.

That racism and sexism often go hand in hand is a fact often pointed out by social scientists, most notably Gunnar Myrdal, in his famous appendix to the "American Dilemma."

But to countenance outright sexism not only in words by judicial flaunting of the law in an appointee to the Supreme Court in 1970, when American women—not in hundreds or thousands but in the millions—are beginning finally to assert their human rights not only as a moral necessity but because history gives them no alternative, is unconscionable.

I trust that you gentlemen of the committee do not share Judge Carswell's inability to see women as human beings too. I will put, however, this question to you: How would you feel if in the event you were not reelected—

Senator BAYH:
Would the witness yield for a moment? That is a very dangerous question to put to a panel of U.S. Senators. [Laughter.]

Mrs. FRIEDAN: I am putting it in a sort of rhetorical way, Senator. But I am putting it this way: How would you feel if you were not reelected, and I am putting it that 51 percent of your voters in your States are women and would not feel kindly if you name an outright enemy of women to the Supreme Court, but suppose for whatever reason that you were not reelected and you were then forced to return to the private sector. How would you feel, if when you went back to your State and applied for an executive job of the sort for which you would otherwise be eligible at some company or law firm or university if you were told you were not eligible because you have a child or children, as I assume most of you do?

How would you feel if your sons were told tomorrow, explicitly or implicitly, that they could not get or keep certain jobs if they had children?

Then how do you feel about appointing to the Supreme Court a man who has said your daughters may not hold a job if they have children?

The economic misery and psychological conflicts entailed for untold numbers of American women and their children and husbands by Judge Cars well's denial to women of the protection of a law that was enacted for their benefit are only a faint hint of the harm that would be done in appointing such a sexually backward—and I use that, of course, in the larger sense—judge to the Supreme Court. For during the next decade, I can assure you that the emerging revolution of the no longer quite so silent majority—and that 51 percent who are women are the majority, even if in society, employment, and Government, they are oppressed as a minority—will pose many pressing new problems to our society, which will inevitably come before the courts and indeed will probably preoccupy the Supreme Court of the 1970's as did questions arising from the civil rights movement of the blacks in the 1960's.

I can testify almost with certainty that this is so, by the fact that I have been asked, though I am not a lawyer, merely an expert in this field, I suppose, because I am a leader of this emerging revolution, I Lave been asked recently by very distinguished law schools, Yale Law School, Harvard Law School, New York University Law School, to lecture to classes of law students on the new areas in the law that are going to emerge as a result of this new second phase of the human rights revolution.

In any event, it is already apparent from decisions made by judges in other circuit courts that Judge Carswell is unusually blind in the matter of sex prejudice and that his blindness will make it impossible for him to fairly judge cases of sex prejudice that will surely come up.

Recently courts have begun to outlaw forms of discrimination against women long accepted in society. The Fifth Circuit Court of Appeals—convened as a three-judge court without Judge Carswell— on March 4, 1969, in Weeks v. Southern Bell Telephone ruled that weightlifting limitations barring women, but not men, from jobs, were illegal under title VII. The Seventh Circuit Court of Appeals, on September 26, 1969, in Bowe v. Colgate Palmolive Co. ruled that, if retained a weightlifting test must apply to all employees, male and female, and that each individual must be permitted to "bid on and fill any job to which his or her seniority entitled him or her." Separate seniority lists for men and women were forbidden.

The Ninth Circuit Court of Appeals in Rosenfeld v. Southern Pacific 293 F. Supp. 1219 (CD. Cal, 1968) decided in favor of a woman employee by ruling that California's statutes relating to hours and weightlifting were unconstitutional under title VII of the 1964 Civil Rights Act.

In the area of criminal law, the case of Daniel v. Pennsylvania 210 P Super 156, 232 A. 2d 247, 255 (1968), it was decided that women could not receive a punishment of up to 10 years if the punishment a men could receive for the same crime is limited to 4 years in prison.

A list of a few existing instances of discrimination against women, all involving Government action, and all already involving law suits or about to involve law suits, where my organization has been asked to intervene as amicus, law suits maybe going up, I would imagine, to the Supreme Court in the next few years, follows. It goes without saying that most of these examples would arouse the fury of any sensitive human being, much less a human being that you are considering for nomination to the Supreme Court.

1. In New York City, male, but not female, teachers are paid for their time spent on jury duty.

2. In Syracuse, N.Y., male, but not female teachers are paid for athletic coaching.

3. In Syracuse, an employer wants to challenge the rule that forbids her to hire female employees at night in violation of New York State restrictive laws.

4. In Pennsylvania, a woman has requested help in obtaining a tax deduction for household help necessary for her to work.

5. In Arizona, a female law professor is fighting a rule that forbids her to be hired by the same university that employs her husband in another department.

6. In California, a wife is challenging a community property law which makes it obligatory for a husband to control their joint property.

7. And, all over the country, the EEOC regulation, which made it illegal to have sex segregated want ads for males and females, have not been followed by most newspapers, and actions are being brought about this.

In other sections, very significant cases that are likely to come up involve women's claims that the right to control of their own reproductive process would involve repeal of existing abortion laws, removing them from the criminal statute.

There is also growing protest that public accommodations which refuse to admit women, are denying women their rights under the Constitution. And the educational institutions which discriminate against women are denying women their equality of opportunity under the Constitution.

The Honorable Shirley Chisholm, a national board member and founding member of my organization of NOW, has summed it all up in her statement that she has been more discriminated against as a woman than as a black.

It would show enormous contempt for every woman of this country and contempt for every black American as well as contempt for the Supreme Court itself if you confirm Judge Carswell's appointment.

I say this in behalf of the right of every woman in America to the full opportunity to life, liberty, and the pursuit of happiness that is guaranteed here under the Constitution, even though that Constitution until now has been interpreted on the Supreme Court as if it were written only for men and not for women. But this country is of, by, and for, its government is of by, and for the people, who are women as well as men. Women are finally beginning to say, in much the same spirit that our revolutionary ancestor said, no taxation without representation; that as citizens of this country, and indeed as a majority of this country, this Constitution must be interpreted to give them equal protection, equal opportunity under the law, equal protection of the rights guaranteed them in the amendments.

We cannot say, I cannot say, that all women in America want equality, as vociferously as some of us are saying now that we want equality, because I know that women, like all oppressed people, have swallowed and plowed into themselves the denigration of women by society that has gone on for generations. Some women have been to much hurt by denigration, by self-denigration, by the lack of the very experiences and education and training need to move in society as equal human beings, to have the confidence that they can so move in a competitive society.

We can say with absolute assurance that while we do not speak for every woman in America, we speak for the right of every woman in America to become all she is capable of becoming—in her own right and/or in partnership with man. And we already know now that we speak not for a few, not for hundreds, not for thousands, but for millions. We know this simply from the resonance, if you will, that our own pitifully small actions have created in society.

I do not believe that you, gentlemen, even if your own duties prevent you from watching television or reading books, can be unaware of this revolution in recent years.

I think also that with the sensing of enormous change in America, you who are in a position to affect the Supreme Court, what it is going to become in the future, you ought to try to grasp the psychology of young women today, even though this psychology may be somewhat different from the psychology of the women who brought you up, or, indeed, the women who are your wives.

I quote from one such young woman, whose name is Vivian Morgan. She said:

The rallying cry of the black civil rights movement has always been: "Give us back our manhood." What exactly does that mean? Where is black manhood? How has it been taken from blacks? And how can it be retrieved? The answer lies in one word: responsibility; they have been deprived of serious work; therefore, they have been deprived of self-respect; therefore, they have been deprived of manhood. Women have been deprived of exactly the same thing and in every real sense have thus been deprived of womanhood. We have never been taught to expect any development of what is best for ourselves because no one has ever expected anything of us—or for us. Because no one has ever had any intention of turning over any serious work to us. Both we and the blacks lost the ballgame before we ever got up to play. In order to live you've got to have nerve; and we were stripped of our nerve before we began; black is ugly and female is inferior. These are the primary lessons of our experience, and in these ways both blacks and women have been kept, not as functioning rational human beings, but rather as operating objects, but as a human being who remains as a child throughout his adult life is an object, not a mature specimen, and the definition of a child is: one without responsibility.

At the very center of all human life is energy, psychic energy. It is the force of that energy that drives us, that surges1 continually up in us, that must perpetually be reaching for something beyond itself. It is the imperative of that energy that has determined man's characteristic interest, problem-solving. The modern ecologist attests to the driving need by demonstrating that in time when all the real problems are solved man makes up new ones in order to go on solving. He must have work, work that he considers real and serious, or he will die. Even if he does not die of starvation. That is the one characteristic of human beings. And it is the only characteristic, above all others, that the accidentally dominant white male asserts is not necessary to more than half the members of the race, i.e., the female of the species. This assertion is quite simply a lie. Nothing more, nothing less. A lie. That energy is alive in every woman in the world. It lies trapped and dormant, like a growing tumor, and at its center here is despair, hot, deep, wordless.

No man worth his salt does not wish to be a husband and father; yet no man is raised to be a husband and father only and no man would ever conceive of those relationships as instruments of his prime functions in life. Yet every woman is raised, still, to believe that the fulfillment of these relationships is her prime function in life.

Listening to these young women who put in even more bitter words than I would, because they have been educated in an era when the expectation of human rights for every American has been more than in the era when I grew up and was educated—listening to those words, I ask the question of myself: Am I saying that women have to be liberated from men? That men are the enemy? No, I am not. I am saying that men will only be truly liberated, to love women and to be fully themselves, when women are liberated to be full people. To have a full say in the decision of their life and their society and a full part in that society.

Until that happens, men are going to bear the burden and the guilt of the destiny they have forced upon women, the suppressed resentment of passivity, the sterility of love, when love is not between two fully active, fully participant, fully joyous people, but has in it the element of exploitation.

It is the insensitivity to this fact which I submit is the crux of sexism, and which made me say that Judge Carswell could be called sexually backward.

I say that men will not be fully free to be all that they can be as long as they must live up to an image of masculinity that denies all the tenderness, the sensitivity, in a man that might be considered feminine. Because all men have that in them, as all women have the potential in them of truly active, participant human dignity, women not just as objects, but as subjects of the story. Men, also, have in them enormous capacities that they have to repress and fear in themselves, living up to this obsolete and brutal man-eating, bear-killing, Ernest Hemingway, crewcut Prussian sadistic, napalm all the children in Vietnam, bang-bang you're dead, image of masculinity, the image of all powerful masculine superiority that is absolute. All the burdens and responsibilities that men are supposed to shoulder alone, makes them, I think, resent women's pedestal—which I believe Judge Carswell still believes. Up from the pedestal is what young women say. That pedestal, that enforced passivity, may be a burden for women, but it is also a burden for men.

Men are not allowed by their masculinity, or what they believe is their masculinity, to express their resentment against that.

That hostility is so severe today that the rage, the violence implicit there, may explode in the 1970's in a way that will make the violence of the 1960's look almost pale. The violence that is now breeding because of the inequality, the sex discrimination, to which Judge Carswell is so blind, this violence is becoming explosive.

Men are not allowed by the obsolete image of masculinity to express their resentment. Men are not allowed to admit that they have sometimes been afraid. They are not allowed to express their own sensitivities, their own needs, sometimes, to be passive and not always active. Their own ability to cry. So, they are only half human as women are only half human until they have a full voice and a fully active part in our emerging human society.

That is why in your confirmation of a nominee to the Supreme Court, it is so very important to appoint a man who is at least free of the worse sex prejudices of this country, of this society, not a man who embodies them.

The specific forms and instances of discrimination against women are easy to document. Voluminous evidence demonstrating widespread social and professional discrimination on the basis of sex has been, and continues to be, gathered. This obviously will be coming before the Supreme Court in the 1970's. In most States the domicile of a married woman is that of the husband, which means that she cannot vote or run for office if she lives elsewhere. She cannot legally do business in her own name, and, in many instances, she cannot borrow money or contract for anything without the approval of her husband. This will undoubtedly come before the Supreme Court. Rape by a husband is legal. This will undoubtedly come before the Supreme Court. In many States the husband has complete legal control of all property owned by both jointly. This will obviously come before the Supreme Court in the 1970's. Often laws relating to property passing at death discriminate against women. There is a Supreme Court decision barring women from jury duty, although a recent lower Federal court decision has gone the other way. In some States a woman can be sentenced to jail for a longer period of time than a man who commits the same offense. Women are barred from many publicly funded educational institutions on the one hand, and from publicly licensed places of public accommodations on the other. We are already aware of cases here that will undoubtedly be coming before the Supreme Court in the 1970's.

Perhaps the most effective area of discrimination is in employment. This is the nitty-gritty of the issue and this is where Judge Carswell is on record by refusing even to give a hearing to a decision which the chief judge said would make the law prohibiting sex discrimination in employment dead.

Last year 89 percent of the women in the labor force earned less than $5,000, as compared to 40 percent of the men. Further, women are paid 40 percent less than men holding the same jobs. This is shown by U.S. Department of Labor Statistics. Today there are fewer women principals of schools, fewer women professors, and fewer women lawyers than there were in 1950 on a percentage basis.

The percentage of women in executive, decision-making jobs, even in traditionally female professions such as school teaching, social work, and library work, is going down. Automation and the advent of new technology reduces blue collar jobs requiring heavy muscles and brings men into some of the jobs previously considered feminine, such as elementary school teaching and social work. Yet women, because of sex discrimination in employment and the kind of discrimination that was upheld by Judge Carswell in the Marietta Martin decision, are still being denied access to training opportunities in the jobs in society that are at the frontier and that are not about to be replaced by automation.

I submit to you, gentlemen, that you cannot in good conscience, and out of your obligation to the 51 percent of this country who are women, you cannot confirm the appointment of Judge Carswell to the Supreme Court. Thank you.

The CHAIRMAN: Thank you, ma'am. Senator Hart?

Senator HART: I apologize for having to miss some of the testimony. But I enjoyed what I heard, and I think the lecture is deserved.

You know, I have been brainwashed on this subject at home. [Laughter.]

Mrs. FRIEDAN: I hope so.

Senator HART: In a way, men, North and South alike, have had the hang-up that some of us suggest our distinguished chairman had when lie grew up with reference to another matter, a racial matter. I am sure that in the South, the white man genuinely believed that the black man was happy. It was only when an outside agitator came in that there was trouble; he believed that. In most cases, it did not reflect cruelty, he just instinctively felt that way. Now, of course, most realize that that was not the attitude of the black man; quite the contrary.

Well, most men, until the very recent past, honestly thought that the only unhappy woman was one who did not understand how happy she should be. We just assumed that these roles you have just described were appropriate, inherent in the law of nature, the result of nature's law. Now, you say you hope I am brainwashed. I hope I am. But I think many men are. We do realize that we were making the same wrong assumption about women, their role and their feeling, that perhaps the chairman was making about how happy the fellows were in the field.

You caution us that the revolution by women may be comparable to the revolution of the men in the fields in the South. I do not know. But it would behoove us, not in order to avoid revolution, but to do what makes good sense, to understand the new advice, the feelings that are much more widespread than most men now understand.

It is a fact that we deny ourselves the talents that are lost so long as these idiotic distinctions are drawn. I must say, we even react as men when a woman voices this message sharply. I am sure you are immune by now. But men do hate to be lectured on this subject, especially by a woman as strong as you. But all men should read your book, then maybe we would all have a little better understanding of why your concern is so sharp for us.

Thank you. I hope I escape having a glove laid on me when I get home.

Mrs. FRIEDAN: Thank you, Senator Hart. I think, of course, that men are not the enemy, that they have this, as I say, blindness because they have been brainwashed by society, as even women themselves have been brainwashed. And they are not the enemy. There is no conspiracy of men against women or to keep them down, to keep them barefoot and/or pregnant or even a conspiracy to keep them out of jobs. I do not believe that. I think that men must have the blindness removed and confront women simply as human beings. This is the essence. We cannot any longer take sex discrimination as a joke in employment or in any other field. Up to now, you know, that has been the simplest way to dismiss it, to take it as a joke. I have even seen certain signs of that here. But I think it is a tribute to the fact that you gentlemen have begun to be aware of the importance of this problem and the new voice that you have permitted me to testify. I have been told, although I do not know whether this is true or not, that I am the first woman representing an organization devoted to women's rights who has ever testified about the nomination of a Supreme Court justice. If so, I think that your having permitted me to do so—while I believe it is certainly our right to have a say-—is your recognition that you must consider very seriously the interests of the 51 percent of women in confirming this nominee, Judge Carswell, on whose record such a serious question is raised.

The CHAIRMAN: Senator Bayh?

Senator BAYH: Thank you, Mr. Chairman.

I sat here with a great deal of interest not only listening to the words but sensing some of the reaction in the hearing. At the risk of being critical or stepping on toes, I think the fact of some of the reaction here is evidence of a certain amount of male smugness that some of us have.

On the other side, I am hopeful that your voice and others will be successful in really painting the picture, the size of the problem. When we talk about 68 percent of the employed women having no husband, no man in the household, being the sole source of support of those children, I think this dramatizes the problem that we have in the question of employment discrimination. The fact that 75 percent of those women and their families and children are already living in poverty accents the critical nature of this problem.

The injustices that you point out in the last part of your testimony graphically express that many of these are perhaps quite normal concerns involving a woman as a mother, as an integral part of the household, that many of the items of discrimination have no relevancy to a woman being a mother to keep a household together and to minister to the children. I am hoping that the day will come when we can right some of these injustices. I appreciate your addition to the record.

Mrs. FRIEDAN: Thank you.

The CHAIRMAN: Senator Cook?

Senator BAYH: Will the Senator yield, please?

Senator COOK: I always do.

Senator BAYH: You are very kind. Since Senator Tydings is not here, he wanted me to make an unequivocal statement that he is for women. [Laughter.] Thank you, Senator Cook. I appreciate it.

Senator COOK: First, let me say that I am delighted that this is a revolution, and I think it should be. I have a daughter who is a sophomore at Northwestern and I have a daughter who I hope will be a freshman at Yale. That in itself is some revolution.

I also hope that for some fairness for you and all the women of the United States that Mrs. Romney does run for the U.S. Senate. [Laughter.] I think we need more women in the Senate.

Senator HART: See how we fall into the trap of making judgments on the basis of sex. This is supposed to be irrelevant. [Laughter.]

Senator BAYH: That is not a true test of equality, pitting those two together. [Laughter.]

Senator HART: Would you not agree that that ought to be irrelevant?

Senator COOK: I might also say that I ran against a woman and she was the former president of the National Business and Professional Womens' Clubs. She is a friend of mine, I am fond of her, and it was a fantastic campaign. We truly covered the issues.

Senator HART: If the Senator will yield, I did the same thing in 1964. The lady is now Republican national vice chairman.

Senator COOK: You see, I keep yielding all the time. There are some things I would like to get straight in all fairness to the nominee. In this ruling, in which Judge Carswell said that no sex discrimination was involved—you will admit that Judge Carswell did not write the opinion of the lower court, did not sit on the case?

Mrs. FRIEDAN: But he joined in the denial of the hearing.

Senator COOK: But this was not a court of last resort. The rights of the respective parties were well preserved. You will admit this?

Mrs. FRIEDAN: Yes, but this is such a clear-cut case in an area that is of enormous importance in terms of the future, and he is on the record here in a way that women can't take lightly. It is too serious a matter.

Senator COOK: You say Judge Carswell justified discrimination against women by the peculiar doctrine of sex-plus? Now, he neither adopted the opinion of the lower court nor adopted the dissenting opinion. Would you agree with this?

Mrs. FRIEDAN: No; because I was here yesterday, and I heard Judge Carswell say in answer, I believe, to a question of Senator Bayh that he did indeed understand that by denying the hearing, denying the request of the Chief Judge Brown for the case to be reheard—as you know, Chief Judge Brown felt it was such a flagrant violation of sex—in denying this, Judge Carswell did indeed understand that he was in effect establishing as a precedent the lower court decision which, as I have said in my testimony, would automatically now mean that any employer in this land could refuse to hire or could summarily fire a woman with children under six. He said he understood that.

Senator COOK: You understand also that Mrs. Phillips was not really applying for a job, she was applying as a trainee for a job, under a program of trainees.

Mrs. FRIEDAN: And women very badly need more job training than they are getting. The problem of high school dropouts today, the high school dropout rate of girls and especially of black girls and the denial to women of adequate, job training in both the private and public sector, is a very, very serious problem.

Senator COOK: Well, let me ask you this: Do you feel that, by reason of the great significance that you put on it, this is his attitude and this will continue to be his attitude?

Mrs. FRIEDAN: Senator, I no more than you, can be a mind reader. I can only judge by the record.

Senator COOK: The reason I say this is because by the record, as you stated, on March 4, 1969, in the fifth circuit, in Weeks v. Southern Bell Telephone, they ruled that weightlifting limitations barring women from jobs but not men, were out.

Mrs. FRIEDAN: Judge Carswell, sir, was not sitting in it.

Senator COOK: But he didn't sit in the Phillips case either.

Mrs. FRIEDAN: But he did sit on the denial of the rehearing.

Senator COOK: He didn't sit at all. If we know how the procedure works, there are 15 judges in the Fifth Circuit. They all sit in different cities. They are mailed these things, they look them over and they are asked what should be done. The opinion of Weeks v. Southern Bell Telephone was mailed to Judge Carswell. Now, if this is his opinion and if he is against women, then why do you think that he did not write a dissenting opinion in the Weeks v. Southern Bell Telephone case? Because if he is really against women, why was he not against the ruling of the Fifth Circuit that ruled that such weightlifting limitations barring women were illegal, and why didn't he say they were legal? I think if you lay so much precedence on a case that he didn't hear, that he did not read the testimony of, how do you justify in your mind that if this is his attitude, why did he not, when the Weeks case came to him, because all of the opinions are circulated and he read the Weeks case, why didn't he come to the conclusion that this is a case he should write a dissenting opinion on because it was giving women a right under Title VII that he thought maybe they shouldn't have? Why didn't he?

Mrs. FRIEDAN: It is clear, sir, that he was not on the three-judge court that heard that case and the chief judge did not in that case ask for a rehearing. But it is also clear in the record that Chief Judge Brown did ask for a rehearing on the Ida Phillips v. Martin Marietta case. One does not there, therefore, have to resort to mindreading. In that instance, he ruled, he did vote. And one can fairly judge a man by his record. I am not a lawyer, but I do understand that mindreading isn't somehow permissible in courts of law.

Senator COOK: The point I am trying to make to you is, in all fairness, that I think you are condemning Judge Carswell on a case that he did not sit on, on a case that he did not have the record on, on a case that was merely submitted to him saying, should there be an en bane hearing or should there not, knowing full well that the rights of all the litigants were still being preserved. I am merely asking the point because I think, in all fairness to you and all fairness to your movement, which I will wholeheartedly subscribe to, I think you are on awfully thin ice. I will have to be honest with you and I can merely say that many of the other judges you are condemning on the same basis. Many of us, not having read the record, are assuming an awful lot.

Mrs. FRIEDAN: Well, sir, in my responsibility as a spokesman for women in the country —

Senator COOK: I think you handle it very well.

Mrs. FRIEDAN: [continuing] and as a woman myself, it is my responsibility to take this question very seriously indeed. I am glad to see that you are enough aware of the implications of Judge Carswell's ruling to feel the necessity of apologizing. I, myself, so one does not have to resort to mindreading, would wonder if you gentlemen should not put some questions to Judge Carswell about ascertaining more fully his views on the question of the rights of women under the Constitution, since the question has been raised. But as of the moment, with this on the record, I would concur with Congresswoman Mink that I would certainly protest the appointment of a judge to the Supreme Court, to the highest tribunal of this land, who would deny a hearing1 to women, deny a hearing on a case involving a law of such extreme importance to women as the law prohibiting sex discrimination in employment.

Senator COOK: But may I say for the record that I think there is a great deal of mindreading in your statement. I think there is a great deal of across-the-board condemnation of Judge Carswell, purely and simply because of the remarks that were made, the fact that it says that Judge Carswell discriminated when he did not sit in this case, when he did not hear this case, and I think there is an assumption of a great deal of mindreading in your statement.

I might say to you that, having been a judge before I came here, and having read with great interest and listened with great interest to what you have said, I think the position of women in this country in regard to the courts is abominable. I had under my jurisdiction all of the juvenile courts in my community of 750,000 people. And the position that men in this country subvert women to who must seek help from local governments, from State governments, and from national governments, is such that they ought to be horsewhipped. And I say this in all sincerity. So I think that your movement is tremendous and I think that it should grow.

For instance, one of the great things that I am very much involved in in the United States Senate is a constitutional amendment for 18, 19, and 20-year-olds to vote in this country. I was a strong supporter of it in my State, and everybody considers Kentucky a Southern State, a backward State, and we have allowed 18 and 19-year-olql young people to vote in our State for about 10 or 12 years now. We would like some of these progressive, modern, up-to-date States to get on the ball.

Mrs. FRIEDAN: Well, sir, since you bring up the question of constitutional amendments, I hope you are also going to see to it that finally, in 1970, the equal rights amendment to the Constitution is added that will prohibit sex discrimination in any law in this country.

Senator COOK: I am certainly for it. I think it is a just cause that you have, but I think your condemnation goes way beyond the realm of the attitude and the philosophy of Judge Carswell. I appreciate your testimony.

The CHAIRMAN: Thank you ma'am.


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