"Aren't the Mediocre Entitled to a Little Representation?" Nixon's Failed Supreme Court Nominees

Will Fassuliotis ‘19
Guest Columnist

On May 23, 1969, President Richard M. Nixon must have felt pretty good. It was on that day that he submitted his nomination to the Senate for the new Chief Justice of the United States. On a personal level, his new nominee would remove his longtime rival and bitter foe, Earl Warren, from the national level. The soon-to-be-former Chief Justice once had presidential ambitions, which Nixon had helped thwart. Now, Nixon had risen to that role. On the political and legal level, he was fulfilling his campaign promise to promote law and order—Nixon ran in no small part against what he perceived to be the excesses of the Warren Court.

            In his acceptance speech for the Republican nomination, Nixon identified the source of the surge in crime—and there was undoubtedly a great increase in crime at this period—as a result of the judiciary having “gone too far in weakening the peace forces as against the criminal forces . . . . Let those who have the responsibility to interpret [our laws],” he continued, “be dedicated to the great principles of civil rights. But let them also recognize”—invoking FDR’s Four Freedoms—“that the first civil right of every American is to be free from domestic violence and that right must be guaranteed in this country.” In choosing as Chief Justice D.C. Circuit Judge Warren E. Burger, a prominent critic of the Warren Court from Minnesota, Nixon thought he had his man to restore balance between the “peace forces” and the “criminal forces.”

            Burger’s nomination easily sailed through the Senate. Barely criticized, Burger would be confirmed by the Senate seventy-four to three, a mere eleven days after nomination. His confirmation would stand in stark contrast to the battles that preceded him and kept the Chief Justice spot open, and the battles to come to try to fill the second vacancy.

            For his second nominee, Nixon sought “a white southern conservative federal judge under age sixty.”[1] Having already won much of the peripheral South, Nixon hope that nominating a Southerner to the Court would help him in the Deep South, as well as heading off a potential Dixiecrat third-party spoiler in the next election, which he had suffered in the form of Alabama Governor George Wallace of Alabama in 1968. With these requirements in mind, Nixon nominated South Carolina Judge Clement Haynsworth of the Fourth Circuit.

            Unlike Burger, Haynsworth faced immediate and sustained opposition. Opponents emphasized three deficiencies. The first was in the area of civil rights. Haynsworth’s record was not particularly good; He had joined a public-school desegregation opinion that was unanimously reversed by the Supreme Court. Other opinions led civil rights leaders to opine that at best Haynsworth was unlikely to support desegregation efforts once on the Supreme Court, and at worst out-right supported segregation, and so they urged the Senate to oppose. The second source came from organized labor, who claimed that seven of his antiunion opinions had been reversed.           Ironically, the third well of opposition was in the same vein of problems that brought Justice Fortas down: money. Haynsworth had sat in at least one case where he had a financial interest. After Fortas, many Senators were wary of putting a man on the Court who even hinted at an appearance of impropriety.

            Haynsworth was rejected, forty-five to fifty-five. As the Democrats controlled the Senate fifty-seven to forty-three, this might not seem so odd. But this was not a party-line vote. Nixon’s nominee was defeated by a mirror image of the forces that defeated Fortas. Recall that Fortas was defeated by a coalition of Republicans and conservative Democrats; Haynsworth was vanquished by a coalition of Democrats and liberal Republicans. Seventeen Republican Senators—nearly 40 percent of the Republican caucus—broke ranks to oppose their Republican president.

            Nixon took the defeat personally. Recent history has exposed a deep fault-line about when a Senate should confirm or reject a nominee. Ideology? Basic competency? Pure politics? Nixon rejected all of these views: Appointments were “the constitutional responsibility of the president,” and he did not believe that individual Senators could “frustrate” that responsibility. To a certain extent, Nixon had a point. For the first time in thirty-nine years, a president’s nominee to the Supreme Court was rejected.[2] Before that, a historian would have to go all the way back to 1894, when the Senate rejected President Cleveland’s choice.[3] Not only was opposition rare, most judges were confirmed unanimously. That era no longer existed. Rather than change course, Nixon doubled down.

            Nixon’s next nominee was Judge G. Harrold Carswell of the Fifth Circuit. Another “strict constructionist” Southerner, Carswell’s fate would be no better than Haynsworth’s. Carswell faced opposition for past stances on civil rights.[4] While running for local political office in 1948, he made remarks explicitly in favor of segregation. While a judge, his opinions seemed written to delay desegregation rather than promote it.

            But it was not this that ensured his defeat. Carswell had a reputation for being an intellectual lightweight bordering on incompetence. In perhaps the greatest own-goal backfire, Republican Senator Hruska of Nebraska had this to say in support: “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.” With supporters like these . . .

            The Senate rejected Carswell, forty-five to fifty-one. Republicans, again broke rank—thirteen of forty-one voting Republicans, over 30 percent, again voted against their President’s nominee. Ironically, Fortas, Haynsworth, and Carswell all received forty-five votes in support. Enraged, Nixon publicly denounced his opponents for refusing to allow a Southerner to be on the Supreme Court. Nixon turned to Judge Harry Blackmun of the Eighth Circuit. Burger had suggested Blackmun to the administration. The Chief Justice had strong ties to Blackmun—they went to the same elementary school—and Burger was even the best man at Blackmun’s wedding. The suggestion was a good one, in that Blackmun was confirmed ninety-four to zero.[5]

But for strict constructionists and judicial conservatives, the choice was ultimately disappointing. The “Minnesota Twins”—Burger and Blackmun—would grow personally and judicially distant on the bench, as Blackmun became one of the most liberal justices on the Court during his tenure. And though we do not know how a Justice Haynsworth or Justice Carswell would have been on the Court, I feel safe in saying that their opponents succeeded in preserving the legacy of the Warren Court, in no small part, because it was Justice Blackmun who sat on the court instead.

            Next time, Hugo Black’s retirement lets us ponder: When does a secret bring prevent someone from becoming a Justice?



[1] A useful book on this topic, from which I got this quote, is Kevin J. McMahon’s Nixon’s Court.

[2] In 1930, the Senate rejected President Hoover’s choice of Judge John Parker, also of the Fourth Circuit, thirty-nine to forty-one. Formally, Fortas was filibustered, and so he was never technically rejected. Instead, his nomination lapsed at the conclusion of the Congressional term.

[3] Wheeler Hazard Peckham was defeated 32-41. Cleveland would later successfully appoint Peckham’s brother, Rufus Wheeler Peckham.

[4] A major difference between today and the past was that nominees were largely unscrutinized by those who appointed them. While current events show that no one catches everything, some of these misses, if I may editorialize, are malpractice.

[5] Like Haynsworth, Blackmun also had sat on cases where had a financial interest in the outcome. Unlike Haynsworth, no one used this as reason to vote against Blackmun.