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BETTY FRIEDAN: WHY G. HARROLD
CARSWELL DOESN'T QUALIFY
Carswell Testimony
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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.
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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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