These different views on the standards for confirmation didn't really come into play, however, until Richard Nixon put them to the test. Prior to his administration, nominations were made based on suitable judicial temperament, experience, integrity, independence, and knowledge of the law, and there was a strong bias in favor of confirmation. Nixon skewed the process, however, by substituting political ideology for judicial independence. For many of us, that change in nomination procedures meant a change in the level of confirmation scrutiny.
The first confrontation erupted in July 1969, just six months into the administration's first term. Abe Fortas, a liberal-leaning associate justice and close friend of Lyndon Johnson, resigned from the Court after questions arose over a retainer he had accepted from a financier friend who later went to prison for securities violations. Nixon's choice as a replacement was a solid southern conservative: Clement Haynsworth of South Carolina, then chief judge of the Fourth Circuit Court of Appeals. This was the same Clement Haynsworth who had been a judge in Tunney's and my winning moot court argument at the University of Virginia back in 1959. He was the first southerner to be nominated to the high court since 1942.
The early support for him was strong, and consensus had it that he would be easily confirmed. But almost immediately, several civil rights groups declared their intention to oppose him. They charged that Haynsworth had contrived to undercut the mandates of Brown v. Board of Education at a time when the law required him to expedite school desegregation. They also pointed to his judicial opinion upholding the right of a hospital that practiced hiring and patient discrimination to receive federal funds. There was also strong opposition from organized labor. In my questioning, I handled the nominee gently at the outset. Anticipating that he would refuse to discuss specific cases, I tried to elicit whether Haynsworth was sensitive to the dynamic social forces of the times, and in particular with the grievances of the young, the poor, and the minorities of America. If he showed that he was not, I reasoned, one could argue that his votes on freedom of speech and defendants' rights might reflect his indifference, if not hostility, to such forces.
Haynsworth saw it coming. We fenced carefully. I tried several variations of my inquiry. How did he view the frustrations of young and poor people? What did he see as the underlying causes? But the dignified Haynsworth stuck to artfully bland responses. The committee voted to recommend confirmation by a vote of ten to seven. I coupled my dissenting vote with a request to President Nixon that he withdraw the nomination. Media and public opinion had by now turned sharply against Haynsworth, and some Republican senators joined me in this request. Nixon refused. In the sharp floor debates that followed, there were allegations of a conflict of interest, and Democratic and Republican support for the nominee further eroded. In November his confirmation was rejected, fifty-five to forty-five, with seventeen Republicans, including several members of their leadership, voting no.
The Senate's repudiation of the president's chosen candidate for the Supreme Court sent shock waves through Washington. It was a game changer. A president's nominees would no longer be rubber-stamped by a compliant Senate.
The defeat exposed Nixon's deeper propensities for control and revenge. The outraged president vowed in effect to stuff his next nomination down the Democrats' throats. He is reported to have ordered an adviser to "go out this time and find a good federal judge further south and further to the right." Nixon's reasoning was that the Haynsworth defeat had given him carte blanche: liberal Republicans would not dare buck their president in a second straight confirmation process, and many Democrats would feel equally reluctant--enough to make a second repudiation next to impossible.
Nixon's designated adviser was Harry Dent. Dent was the conceptual thinker behind Nixon's "Southern strategy" of increasing his base and converting Democrats in the South by assuring them that he would not force civil rights laws on unwilling states.
Dent went out and found G. Harrold Carswell, a U.S. Court of Appeals judge from Tallahassee, Florida. Florida newspapers promptly published a speech Carswell had made in 1948 while campaigning for the state legislature: "I believe that segregation of the races is proper.... I yield to no man in the firm, vigorous belief in the principles of white supremacy."
The day after the Florida press disclosures, a damning bill of particulars surfaced via the offices of Marian Wright Edelman, the visionary activist lawyer and founder of the Washington Research Project and the Children's Defense Fund, who had warned us that we were making a mistake when the Senate confirmed Carswell to the 5th Circuit without a serious fight in June of 1969. Listing Carswell's efforts to slow desegregation in Florida schools, his uncivil manner as a judge toward black lawyers, and his refusal to hold hearings on habeas corpus petitions involving black defendants, Edelman and her fellow lawyers concluded that Carswell had been "more hostile to civil rights cases than any other federal judge in Florida."
Nixon's tactical calculations were uncomfortably close to the truth, at least at the outset. At a meeting on January 23, 1970, Birch Bayh, Joe Tydings, and Phil Hart agreed with Birch's oft-voiced perception that it requires staggering resources and energy to defeat even a bad presidential nomination.
I could not attend that meeting, but was represented by a first-rate young staffer, Jim Flug, a Harvard Law School graduate. Flug had made a meticulous head count of senators likely to support Carswell, those likely to oppose him, and those on the fence who might respond to "go along with proper kinds of brotherly pressure" and oppose the nominee. It appeared that Carswell could indeed be defeated. We went to work. As the Judiciary Committee hearings began on January 27, I bore in on news reports that Carswell, then a U.S. attorney, had maneuvered to keep a Tallahassee municipal golf course segregated even after such discrimination had been ruled illegal. He denied involvement in any such thing. Three days after that, another Flug memo, titled "How to Beat Carswell," listed sixty-one senators who might oppose the man "if we can get the full civil-rights apparatus working, which it's beginning to do."
Birch Bayh was an outstanding leader in this battle and wanted to delay the committee vote on Carswell for two weeks to allow public opposition to grow. He managed it via a clever parliamentary maneuver that outfoxed Strom Thurmond.
Nevertheless, on February 16, the Judiciary Committee voted to recommend the confirmation of Carswell by a vote of thirteen to four. Bayh, Hart, Tydings, and I were the four "no" votes. We authored a joint dissent that hammered at Carswell's "lack of achievement and eminence in the law," and at his basic competence as a judge. Meanwhile, our strategy of letting opposition grow was working. It soon reached a flood tide among dozens of law school deans and professors, poverty lawyers by the hundreds, and several of the most influential law journals. Liberal Republicans began to back away. And then on March 16 came what many feel was the coup de grace against Carswell--delivered not by the opposition but by a blooper from his own floor leader, Senator Roman Hruska of Nebraska.
The thickset and pugnacious Hruska, flailing for any kind of toehold as the tide turned against his man, blurted to a radio interviewer that even if Carswell was mediocre, there were lots of mediocre people in the country, and they too were entitled to representation on the Supreme Court. "We can't have all Brandeises and Frankfurters and Cardozos and stuff like that there," Hruska stoutly affirmed. It proved the most enduring quotation of his career.
Still, Nixon hung on, trying to marshal a counteroffensive against the backlash. Several southern judges endorsed Carswell, as did the American Bar Association; but these had little impact. In March we achieved another valuable delay, persuading Mike Mansfield to hold up a full Senate debate. This had the happy effect of giving the Senate time to complete action on the Voting Rights extension bill, which included a provision I'd long championed, lowering the federal voting age to eighteen. The extension passed, and we turned our energies back to the Supreme Court nomination fight. The New York Times had predicted that Carswell would narrowly be confirmed,
perhaps by a forty-nine to forty-seven vote. But the actual results showed another embarrassment for Nixon. His nominee was rejected by fifty-one to forty-five, as thirteen Republicans joined the majority. (Seventeen Democrats, mostly southern, voted to confirm.)
Nixon publicly held his rage in check; he remarked icily and artfully at a press conference that the Senate, "as presently constituted," would not confirm a southern nominee who shared the president's vision of strict constructionism. A few weeks later, reportedly at the suggestion of Chief Justice Warren Burger, he nominated Burger's fellow Minnesotan and close friend, Harry Blackmun, to the Court. Blackmun held strong conservative credentials as well; but his answers to my questions at his hearing--he affirmed that the Court should continue to be "the real bastion of freedom and liberty" in the nation--told me he would be an acceptable choice. He was confirmed unanimously, and eventually became one of the most effective and outspoken progressives on the Court until he retired in 1994, and was replaced by my former counsel, Stephen Breyer.
Racial insensitivity continued to run through Nixon's Supreme Court nominees. When Hugo Black and John Marshall Harlan announced their impending retirements in September 1971, Nixon's first choice for the nomination was Congressman Richard Poff of Virginia. In 1956 Poff had signed the Southern Manifesto protesting the Court's landmark Brown v. Board of Education decision outlawing school desegregation. Poff declined Nixon's offer.
Eventually, Nixon nominated former assistant attorney general of the Office of Legal Counsel William Rehnquist and Lewis Powell, a moderate conservative from Virginia. I was lulled, at first, into a sense of relief when I saw these names. At least these were men of reputation and some accomplishment. And in fact Powell, who was confirmed easily, served as a centrist and consensus-builder on the bench for fifteen years.
Rehnquist was another matter.
I knew that Rehnquist's conservatism ran deeper than Powell's. He was rumored to have held questionable positions on race matters. Still, hoping with everyone else that a third standoff with the president could be avoided, I withheld any final opinion until the hearings. In retrospect, given the historic consequences, perhaps I should have pounced right away. But it probably would not have mattered. Nixon played this round with the instincts of a chess master in the endgame. He understood the steep odds against another standoff.
Controversy erupted almost immediately. As with the earlier nominees, the civil rights community mobilized its opposition to Rehnquist. Revelations surfaced that in 1964, just seven years earlier, he had testified in opposition to desegregating public accommodations in Phoenix--at the same moment, virtually, that Congress was en route to passing the Civil Rights Act. He was shown to have favored restrictive covenants in housing and to have fought school desegregation, remarking, "We are no more dedicated to an integrated society than we are to a segregated society. We are instead dedicated to a free society."
Charges also surfaced that from 1958 through 1964, Rehnquist, as a lawyer working for the Republican Party in Arizona, repeatedly had confronted black and Hispanic citizens at polling places in Arizona and tried to prevent them from voting. The NAACP released affidavits sworn to by two African-American men that they had witnessed Rehnquist challenging black voters at a Phoenix precinct in November 1964. One of these men added that a black woman had come to him in tears: as she'd stood in line, Rehnquist approached her and demanded that she recite the Constitution as a prerequisite to voting. After a scuffle involving the two men and Rehnquist, police removed the young lawyer from the precinct. He later returned in a car. Rehnquist responded by insisting that he'd been near the voting lines only to supply legal advice to people who were in fact challenging voters.
My opening-day questioning of Rehnquist on November 4, 1971, focused on the nominee's assaults on civil liberties. I grilled him on his role in supplying legal justification for the administration's use of wiretapping, electronic surveillance, and "no-knock" entries of residences in drug cases. I also pressed him on his role in "containing" the anti-Vietnam rally on the Washington Mall earlier that year, which resulted in the arrest or detention of twelve thousand peaceful demonstrators. That particular action was later voided by the courts on First Amendment grounds.
There was opposition fatigue, in the press, in the nation, and even in the Senate. No revelation of insensitivity on issues of race or violations of civil liberties seemed to resonate or stir opposition to Rehnquist. The nominee proved adept at deflecting the queries with platitudes. And then the administration claimed executive privilege to prohibit the committee from gaining access to memos that Rehnquist had written to Attorney General John Mitchell on these issues. Rehnquist also protested that disclosure of the memos would violate the privacy of the "attorney/client" relationship. Given that the client of the attorney general is the American people, I did not understand how this relationship could be "private." Nevertheless, we saw the same arguments being used decades later by President George W. Bush to block the committee's access to documents in the confirmation hearing of Rehnquist's former law clerk, John Roberts, to succeed his old boss as chief justice of the United States.
Newsweek released a bombshell a day after the hearings began. On November 5, the magazine published the contents of a memo written by Rehnquist in 1952, when he was a twenty-seven-year-old clerk for Justice Robert H. Jackson.
The memo, "A Random Thought on Segregation Cases," could not have laid out its argument more candidly or clearly: "Plessy vs. Ferguson [the infamous 'separate but equal' doctrine handed down by the Court in 1896] was right and should be reaffirmed." Under that reasoning, Brown v. Board of Education should not have overruled Plessy, but instead should have upheld the constitutionality of segregation in our public schools.
Its conclusion read, "To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."
In other words, as long as we're in the majority, we can decide what the minority is entitled to. We're the boss.
How did Rehnquist justify his majority-rule view of racial fairness? He said the memo did not reflect his views. "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use," Rehnquist wrote in a letter he delivered to James Eastland, the committee chairman. Why Justice Jackson, who in fact voted to strike down school desegregation in Brown v. Board of Education, would ask for such a memo was never explained. Jackson died in 1954, shortly after his vote on the historic Brown decision, and thus was unavailable to answer Rehnquist's allegation.
Rehnquist's confirmation (by a resounding vote of sixty-eight to twenty-six) owed much, I believe (and as Nixon had foreseen), to the Senate's institutional reluctance to repudiate a president a third consecutive time. The unfortunate result was, in my opinion, a justice whose record was disqualifying on its face.
What we now call "Watergate" was in fact a confluence of at least three currents that began flowing in 1971. The first was the International Telephone and Telegraph scandal, which involved essentially the same players, the same atmosphere, and the same activities that comprised the larger chain of wrongdoings. The second involved Nixon's firing of the special prosecutor he'd appointed to investigate the many allegations. The third was Watergate itself: the illegal break-ins by clandestine agents seeking to gain information about Nixon's adversaries, the illegal payoffs to those agents, and the illegal cover-ups of both activities.
The ITT affair began to surface in the summer of 1971, at about the same time the New York Times and Washington Post began publishing the Pentagon Papers and nearly a year before the storied break-ins at the Watergate office complex. This was not entirely a coincidence. Daniel Ellsberg's bold procurement of those papers--the Defense Department's top-secret history of the war that revealed a pattern of official lying about its prosecution--had driven the se
crecy-obsessed Nixon to his catastrophic spree of surveillance and revenge. In September 1971, summoning the same "plumbers" unit that a year later would try to bug the Democratic offices at the Watergate complex, Nixon authorized a burglary raid on the office of Ellsberg's psychiatrist. Their mission was to scavenge for files that would call into question the former defense analyst's sanity.
In July 1971, the Republican National Committee announced that San Diego, Richard Nixon's preferred city, would be the site of its 1972 convention. A little more than a week later, the Nixon Justice Department revealed that it was dropping the appeals of three major antitrust suits involving ITT--appeals that had seemed likely to be upheld in the Supreme Court. This news was quickly followed by the abrupt resignation of Richard McLaren, the chief of the department's antitrust division, who'd built the cases and had a reputation as a relentless watchdog of conglomerate mergers. Just days after his resignation, McLaren was given a federal judgeship in Chicago, the appointment brokered by Deputy Attorney General Richard Kleindienst, who persuaded the chairman of the Judiciary Committee, Jim Eastland, not to hold confirmation hearings. I immediately smelled a rat, but could find no evidence that the judgeship was tainted, or any reason why it might have been. The syndicated columnist Jack Anderson smelled one as well, and said so in a December 9 column--an artful solicitation, as Anderson himself later admitted, for more information from anyone out there who might possess it.
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