Yep, this is yet another post regarding the Supreme Court. For how controversial the Supreme Court is now, it may surprise people to know that few people in history have actually been rejected for the Supreme Court by a vote of the Senate: only eleven have lost a confirmation vote, and Nixon had the misfortune of nominating two of them.

In 1968, in one of his moves to appeal to the South, Richard Nixon promised that if elected he would get a Southerner on the Supreme Court and promised to pick “strict constructionist” judges. To fulfill his campaign promise, on August 21, 1969, Nixon nominated Clement Haynsworth Jr. of South Carolina, chief justice of the Fourth Circuit Court. He was to succeed Abe Fortas, who had resigned over accepting a retainer from financier Louis Wolfson, who was under investigation for securities fraud (for which he was convicted) and had only returned it after Wolfson had been indicted twice. Fortas had only a year ago been nominated as chief justice by Lyndon B. Johnson, but Republicans and Southern Democrats had blocked the nomination, and the case against him was based largely on ethics as well as his liberal attitude towards the regulation of pornography.

Democrats, smarting over Fortas not only being rejected for chief justice but also being forced to resign, chose to play hardball with Nixon and the Republicans. Northern Democrats, led by Phil Hart of Michigan, attacked Haynsworth’s judicial record as anti-civil rights and anti-labor. This alone wouldn’t have sunk the nomination, but when they hit upon conflict of interest issues with Clement Haynsworth, they struck gold. Democrats alleged that Haynsworth had voted in decisions that involved his financial interests. Republicans had based their case against Fortas on conflict of interest. Moderate Republican Senator Marlow Cook of Kentucky defended Haynsworth, stating that he was being subject to a unjustified campaign of character assassination, and the conflict of interest charges were never proven.

The death blow for Haynsworth came when the “Conscience of the Senate”, Republican John J. Williams of Delaware, found himself unable to support him. While he didn’t think Haynsworth did anything illegal, he viewed Haynsworth as having a consistently lax attitude on ethics. Williams was respected on both sides of the aisle and was part of the GOP’s conservative wing, thus this gave more liberal Republicans room to oppose him. Robert Griffin, the Michigan Republican who led the charge against Fortas on ethics grounds, also announced that he could not support Haynsworth. The nomination failed 45-55, with 17 Republicans defecting. Nixon didn’t give up easily, and sought a justice who was more conservative and more to the South.

Nixon’s Second Try: G. Harrold Carswell

The following year, Nixon tried again with Florida’s G. Harrold Carswell, who served on the Fifth Circuit Court of Appeals, and who had no apparent ethics issues surrounding him. His Attorney General, John Mitchell, proclaimed him “too good to be true”. Mitchell had no idea how correct he would turn out to be. However, Carswell had a past as a politician in Georgia, and in 1948 he ran for the state legislature and had delivered a speech in which he endorsed Jim Crow and “white supremacy”. While in 1948, every elected Georgian official was expected to support Jim Crow, his statements by 1970 had aged very badly, and he renounced them. Carswell was also involved in the turning of a public golf course into a private club with segregation, and had prolonged a desegregation case in the 1960s. In truth, his judicial record on civil rights was mixed. He ruled against his own barber when the NAACP brought suit for him refusing to serve black customers and he had been credited with freeing the University of Florida Law School of discrimination. He was also accused of mediocrity, as 58% of his decisions had been overturned by higher courts. Carswell was not helped by his allies either, with Senator Roman Hruska (R-Neb.) stating, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters, and Cardozos” (The Downfall Dictionary). Unfortunately and unfairly for Hruska, this quote would be the most famous thing about his over twenty year career in the Senate. Democrat Russell Long of Louisiana compounded the damage with his quote, “Would it not appear that it might be well to take a B or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting us a 100 percent increase in crime in this country?” (The Downfall Dictionary) Carswell met Williams’ standards of ethics and won Griffin’s approval, he curiously did not meet with Marlow Cook’s approval. Cook was a liberal on civil rights and was sufficiently disturbed to vote against. Although he fared better than Haynsworth in the vote, 13 Republicans still defected and Carswell was defeated on a 45-51 vote. At this point, Nixon was incensed and blamed an anti-South prejudice on the part of the Senate. He even considered nominating Senator Robert Byrd of West Virginia, who would have provided a huge dilemma for Democrats, as Byrd was a leading Democrat but had also opposed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Although Richard Nixon liked the notion of firsts for political purposes, had Carswell been confirmed, he may have achieved a first Nixon didn’t care for: in 1976 he was arrested for propositioning an undercover police officer in a men’s restroom. Three years later, he was beaten in a hotel room by a man he had invited in. Carswell would have quite possibly been the first gay or bisexual Supreme Court justice had he been confirmed. Ultimately, Nixon proved one of the more prolific nominators of Supreme Court justices among presidents, having got four justices in, and in the end he did get a Southerner that the Senate couldn’t refuse: Lewis F. Powell Jr. of Virginia, a former president of the American Bar Association. Only the staunchly liberal Democrat Fred Harris of Oklahoma voted against.

References

G. Harrold Carswell: representing the mediocre. (2014, November 23). The Downfall Dictionary.

Retrieved from

http://downfalldictionary.blogspot.com/2014/11/g-harrold-carswell-representing-mediocre.html

Hoffecker, C.E. (2000). Honest John Williams: U.S. senator from Delaware. Newark, DE: University of Delaware Press.

Retrieved from

Click to access Honest_John_Williams.pdf