Reminisces about President Richard Nixon's resignation forty years ago have prompted me to think about an aspect of the Nixon presidency that may have parallels to a present and future impasse in our politics.
The names Clement Haynsworth and G. Harrold Carswell are largely unknown to Gen Xers and Millennials and are mostly forgotten by our elders who lived through the Nixon years. But these federal appellate judges' stories may shed light on how this and future administrations handle judicial nominations in light of the most contentious social issue of our day.
Nixon's Failed Supreme Court Nominations
When Earl Warren retired in 1969, Nixon nominated Warren Burger to be Chief Justice of the United States. As a strict constructionist and a resolute critic of the liberal Warren Court, Burger aptly fit the bill for Nixon's first Supreme Court nomination. He was confirmed that summer, 74-3. Subsequently, Nixon made three additional nominations to the Supreme Court. Students of history will recall that Nixon replaced outgoing Justices Abe Fortas, Hugo Black, and John Harlan with Justices Harry Blackmun, Lewis Powell, and William Rehnquist. But the series of events in 1969 and 1970 leading to the Blackmun nomination are instructive for our present situation.
When Justice Abe Fortas resigned, Nixon wanted to fill his second vacancy with a Southerner. While five Deep South states (Arkansas, Louisiana, Mississippi, Alabama, and Georgia) went for segregationist third-party candidate George Wallace in 1968, Nixon carried Florida, South Carolina, Tennessee, North Carolina, and Virginia. For the moment, I do not want to get into the "Southern Strategy" of GOP candidates appealing to racism against African-Americans. It is shameful, but its is somewhat beside the point here. Suffice it to say that Nixon owed something to the South.
To replace Justice Fortas, Nixon wanted to nominate Lewis Powell, an attorney and former local official in Virginia. Powell was arguably unqualified and, in any event, was reluctant to leave his lucrative law practice in Richmond. (Powell would eventually accept Nixon's nomination for another SCOTUS vacancy in 1971.) Nixon nominated Judge Clement Haynsworth of the Fourth Circuit Court of Appeals. Haynsworth's home state of South Carolina went for Nixon in the 1968 election. Like many white judges in the South at that time, Haynsworth faced charges of having issued decisions that favored segregation. His nomination was defeated 55-45, with 19 Democrats and 26 Republicans voting to confirm him and 38 Democrats and 17 Republicans voting to reject him. It was the first time the Senate failed to confirm a president's SCOTUS nominee since 1930.
Nixon then nominated Judge Harrold Carswell, whom he had elevated to the Fifth District Court of Appeals eight months earlier. Previously, President Dwight Eisenhower had appointed Carswell to serve as U.S. Attorney and then as a federal judge, both in the Northern District of Florida. Like Clement Haynsworth, Carswell faced criticism over his civil rights record. He received 45 votes in the Senate (17 Democrats and 28 Republicans). Fifty-one senators (38 Democrats and 13 Republicans) voted to reject the nomination. Nixon blasted the Senate's "anti-Southern bias," and ultimately filled the vacancy with Harry Blackmun, whom the Senate confirmed 94-0. In 1973, Blackmun wrote the 7-2 majority opinion in Roe v. Wade.
It is not really fair to lump Carswell and Haynsworth together, though people often do. Carswell had been a staunch segregationist while Haynsworth had merely been ambivalent. Likewise, Carswell's tenure as a federal judge was widely considered undistinguished. In contrast, Haynsworth had a reputation as a prudent and scholarly jurist, thought his reflexive anti-labor views and an alleged conflict of interest became issues while the Senate considered his nomination. Justice Lewis Powell himself, who was Nixon's first choice ahead of Haynsworth and Carswell but declined the 1969 nomination only to accept another one in 1971, later expressed regret over Haynsworth not being confirmed.
By 1970, retrograde views on race disqualified a person from service on the nation's highest court. Even people who had abandoned their previous support for segregation still faced difficulty. In the years that followed, no current and very few former segregationists became federal judges.
My next post extends this little history lesson about Clement Haynsworth and Harrold Carswell to the current debate about whether opposition (or even past opposition) to same sex marriage should disqualify people from positions of public trust and responsibility.