Today in Feminist History: Women Oppose Nixon Supreme Court Nominee G. Harrold Carswell

Today in Feminist History is our daily recap of the major milestones and minor advancements that shaped women’s history in the U.S.—from suffrage to Shirley Chisholm and beyond. These posts were written by, and are presented in homage to, our late staff historian and archivist, David Dismore.

January 30, 1970: The National Organization for Women held a press conference in New York City today to reinforce and expand on yesterday’s testimony in Washington, D.C., before the Senate Judiciary Committee denouncing the nomination of G. Harrold Carswell to the U.S. Supreme Court. 

President Nixon’s second nominee to fill the vacancy on the Court left by the resignation of Associate Justice Abe Fortas is under fire on two fronts. Civil Rights groups testified against him earlier in the week because of the segregationist views he expressed during a 1948 campaign for the Georgia Legislature, and his subsequent membership in an all-white golf club. Feminists also denounced him as a racist, but brought up a much more recent charge regarding sexism.

Last October, while a member of a Federal Appeals Court, Carswell cast one of the votes against hearing the case of Ida Phillips. She applied for a trainee position with the Martin-Marietta Corporation, but was rejected because it was against company policy to hire mothers of preschool children. The company has no such rule regarding fathers of small children, so this was a clear case of sex bias. But the U.S. Circuit Court in New Orleans ruled 2-1 that she was not being discriminated against solely on account of her sex, but because of her parental status as well, and though sex discrimination is illegal, bias based on sex “plus” something not covered, such as parental status, is not banned.

Carswell’s vote against the Appeals Court hearing the case, as he admitted during Senate testimony, could be interpreted as an endorsement of the “sex plus” doctrine. It would allow obvious sex discrimination so long as the bias did not apply to all women, but only those who could not meet “special standards” even if those “special standards” do not apply to men. Such an interpretation of the Civil Rights Act by the Supreme Court could condone the firing of over 4 million employed mothers who have children under the age of six, and give the green light to discrimination against other subclasses of women as well. 

At the hearing yesterday, Rep. Patsy Mink (D-HI) and NOW President Betty Friedan both assailed Judge Carswell. Mink said that his “basic philosophy is totally unbecoming of a man being considered for appointment to the highest court of the land,” and “I believe that Judge Carswell demonstrated a total lack of understanding of the concept of equality and that his vote represented a vote against the right of women to be treated equally and fairly under the law.” She then linked his views on race with those on sex: “Male supremacy, like white supremacy, is equally repugnant to those who really believe in equality.”

Photo: N.O.W. President Betty Friedan (Wikimedia Commons) and Supreme Court nominee G. Harrold Carswell (Wikimedia Commons)

Betty Friedan went next, and agreed with Mink that “racism and sexism often go hand in hand.” Reminding the Senators of the facts of the case, in which a company had a policy that barred mothers, but not fathers, of preschool children from being hired, she noted: “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.” 

She then went on to say: “Only sex discrimination, or sexism as we feminists call it, can explain Judge Carswell’s ruling.”

Today Friedan was back in New York and joined by a number of other women opposed to the Carswell nomination: Beulah Sanders, President of the National Welfare Rights Organization; Elinor Guggenheimer, Democratic Party leader and founder of the national day care movement; Diane Schulder, attorney for 400 women attacking the constitutionality of the New York State abortion law and who teaches a course called “Women and the Law” at New York University Law School; Patricia Burnett, a Detroit Republican and a member of NOW and Karen DeCrow, who ran for Mayor of Syracuse on the Liberal Party ticket.

Friedan said: “Women must inform their Senators that if they confirm an enemy of women – who would make it impossible for mothers to have both children and jobs – we will work for their defeat.” She said it was “the first time in history that a Supreme Court nominee has been opposed on the grounds of his prejudice against women. That this call has been raised now is a reflection of the growing sensitivity of women to their second-class status and to the impetus of the women’s rights revolution.”

She called Carswell’s vote not to hear the Phillips case “total blindness to the very real problems women face today. Over 25% of mothers with children under six are in the labor force,” and he was “defying the policy of this Administration to encourage women in poverty with children to work by expanding day-care centers rather than continue in the current medieval welfare system which perpetuates the cycle of poverty from generation to generation.” She noted that mothers and children are 80% of welfare cases in major cities.

Friedan predicted that “during the next decade, the emerging revolution of the no longer quite so ‘silent majority’ – the 51% of the population who are women – will pose pressing new problems to our society which will inevitably come before the courts and will preoccupy the Supreme Court of the seventies as did the Civil Rights movement of the sixties.” Therefore, “the women of America cannot accept the appointment of a sexist judge to the Supreme Court of the United States.”

The Phillips case will be appealed to the Supreme Court, and the battle to replace Justice Fortas with someone who has shown a record of sensitivity to, and opposition toward, both race and sex discrimination will continue as well. 


David Dismore is the archivist for the Feminist Majority Foundation. His journey from would-be weather forecaster to full-time feminist began with the powerful impression made by a photo and a few paragraphs about the suffragists in his high school history textbook; years later, he had his first encounter with NOW—in which he carefully peeked in a window before opening the door to be sure men were allowed. He was eventually active in the ERA extension campaign of 1978, embarked on a cross-country bikeathon for it in 1982 and even worked for pioneers Toni Carabillo and Judith Meuli.