Unfortunately, Vietnam soured the debate. It had convinced the liberals that America suffered from too belligerent a posture and made them determined to curb our military spending. As Stewart Alsop wrote in his column, “There are, of course, perfectly rational arguments against the ABM. But a great deal of the opposition to ABM is essentially emotional—it is the liberals’ way of getting back at the generals for Vietnam.” The liberals hated the war and they thought our best solution was just to get out. I hated the war too, but I thought we had to end it in a way that would keep our commitment to South Vietnam. I thought the liberals had deluded themselves: America would not make the world safer by acting dishonorably.
One good argument against the ABM was that many people—Eisenhower, incidentally, among them—doubted the efficacy of defensive weapons systems and preferred to put our money into building our offensive capability. There were also technical objections involving the cost of the system measured against the increased levels of defense it would actually produce. These arguments lost me support among some responsible conservatives and moderates whose votes I might otherwise have had, and made the tension even greater as we headed into the final vote.
The ABM vote actually involved a request for additional appropriations to carry on a building program that had begun under President Johnson. The system of extensive ABM coverage he had proposed in 1967 was called Sentinel. The reduced version I decided to propose in 1969 was called Safeguard.
Once I had made the decision, we faced the biggest congressional battle of the first term. We would be fairly sure of carrying the House; but in the Senate, where the powerful liberal forces were headed by Teddy Kennedy, it was clearly going to be very close. Democratic Senator Henry Jackson, a strong proponent of national defense, led the fight for us. He said that it was just like war, and we were going to have to fight it like war if we wanted to win.
We blanketed Capitol Hill with White House staff members. This was our first major attempt to use the delicate technique of persuasion without pressure, and we were constantly having to adjust our strategy as the daily reports indicated that we were not pushing hard enough with one congressman or that we were coming on too strong with another. I started out with a heavy schedule of calls and meetings with congressmen, but after the initial contacts had been made and the arguments presented I concluded that I was squandering presidential prestige that might be needed later. Some legislators tried to use the ABM vote as a bargaining chip of their own. In one case a powerful committee chairman hinted that I could have his support in exchange for approving a major federal installation in his district.
I felt we were fighting with one hand tied behind our back because we could not publicly explain the bargaining chip rationale for the ABM, nor could we reveal the intelligence reports of Soviet arms. Kissinger and I used these arguments in congressional briefings and meetings, but the liberal forces were well organized and were largely able to control the public debate.
The Senate would cast the first vote on ABM, and from the outset it was clear that the vote would be close. One of the key figures was the independent Republican senator, Margaret Chase Smith. Both sides sought to win her support; Mike Mansfield said he’d never seen so many men publicly woo one woman. Seemingly unrelated issues and events were weighed for the import they might have for the ABM vote. Thus, one of the arguments raised against retaliation when the North Koreans shot down our EC-121 in April was that the resulting furore would strengthen the anti-ABM forces. And when Teddy Kennedy’s car went off a bridge at Chappaquiddick in July, the effectiveness of his leadership against the ABM was significantly reduced. As the time of the vote neared, I told Bryce Harlow, “Make sure that all our guys are there all the time. Don’t let anyone get sick. Don’t even let anyone go to the bathroom until it’s all over.”
When the vote was taken on August 6 it was in the form of three separate amendments to the bill that, if they had been adopted, would have halted construction of the ABM. All three were defeated. On the first and most important amendment—which would have prohibited all spending for Safeguard deployment, the Senate divided 50–50. Under Senate rules a tie vote would have defeated the amendment anyway, but Agnew cast his tie-breaking vote and the final tally read 51–50.
Even though the margin of victory was razor thin, the vote established that America was still prepared to maintain its military strength. I am absolutely convinced that had we lost the ABM battle in the Senate, we would not have been able to negotiate the first nuclear arms control agreement in Moscow in 1972. But the one-vote margin was undeniably a nerve-racking one, and it confirmed my resolve to pour every possible resource of money and manpower into the congressional elections of 1970 in order to shore up our position in Congress and make our margin more secure.
The Supreme Court is always keenly aware of political and social trends. During the 1950s and 1960s, under the leadership of Chief Justice Earl Warren, the Court had become unprecedentedly politically active. Like many legal and political moderate conservatives, I felt that some Supreme Court Justices were too often using their interpretation of the law to remake American society according to their own social, political, and ideological precepts.
By the time of the 1968 political campaign Warren was seventy-seven years old. It was unlikely that he would be able to lead the Court through the next four—or possibly eight—years of what might become the Nixon administration. On June 13, 1968, he sent his resignation to Lyndon Johnson “effective at your pleasure.”
On June 26, Johnson nominated Abe Fortas to be Chief Justice. Fortas had been an Associate Justice since Johnson appointed him to the Court in 1965. Shortly after his nomination as Chief Justice was announced, it came to light that while on the Court, Fortas, a close friend of Johnson’s, had performed a number of personal and political chores for him. This was a clear violation of the principle of separation of powers. It was also discovered that Fortas had accepted a $15,000 fee for a lecture series at American University. One of Fortas’s former law partners had raised the money from influential business and financial leaders—men who might have interests in cases coming before the Supreme Court.
On October 2 Fortas asked Johnson to withdraw his nomination. By then it was then too close to the election for Johnson to make another nomination without seeming blatantly political. Thus whoever won the election would have the opportunity of selecting a Chief Justice at the beginning of his presidency.
Shortly after I was elected, I asked Bill Rogers to approach Chief Justice Warren and work out an understanding with regard to the timing of his resignation. Warren agreed to stay on until the end of the Court’s session in June, and I asked John Mitchell to begin looking for a candidate to replace him. I was the thirty-seventh President, but the man I nominated would be only the fifteenth Chief Justice in our history. It was not a selection to be made lightly or hastily.
My first choice was former Attorney General Herb Brownell. There was only one drawback: he had been Eisenhower’s Attorney General in 1957 at the time of the Little Rock school crisis, and I knew that many Southerners were still deeply embittered by his role in the use of federal troops to enforce integration. After getting negative reactions from key Southern senators, Mitchell told Brownell that his confirmation fight would be messy. Brownell said that such a controversy would not be in the interests of the nation or of the new administration, and he asked to be removed from consideration.
I asked Mitchell to sound out Tom Dewey, but as I expected, he ruled himself out because of his age. He was already sixty-six, and he felt strongly that any Chief Justice should serve for at least ten years.
I also considered Associate Justice Potter Stewart, an articulate dissenter from many of the Warren Court’s activist decisions. On April 30, however, he came to the White House and said he wanted me to know that, in terms of the morale of the other Justices, he did not believe it was in the best interests of the Court to have one of the Associate Justices elevated to Chi
ef Justice.
As the search continued, I developed five criteria for the selection process. The next Chief Justice must have a top-flight legal mind; he must be young enough to serve at least ten years; he should, if possible, have experience both as a practicing lawyer and as an appeals court judge; he must generally share my view that the Court should interpret the Constitution rather than amend it by judicial fiat; and he must have a special quality of leadership that would enable him to resolve differences among his colleagues so that, as often as possible, the Court would speak decisively on major cases with one voice or at least with a strong voice for the majority opinion.
I reviewed the list of appeals court judges Mitchell prepared for me and began looking particularly into the record of Judge Warren E. Burger of the District of Columbia Court of Appeals. I had been impressed by excerpts from one of Burger’s speeches on the role of law and order in society that I read in 1967 in U.S. News & World Report. I had used several ideas from it in my speeches during the 1968 campaign. Mitchell gave me some of Burger’s opinions to read, and I was impressed by their forcefulness and clarity. I knew Warren Burger to be philosophically a moderate conservative and personally an impressive man. On May 21 I nominated him as Chief Justice of the United States. He was confirmed readily and sworn in on June 23.
As I was nearing my decision on a new Chief Justice, I unexpectedly had the opportunity to fill another seat on the Supreme Court when Abe Fortas suddenly submitted his resignation.
Life magazine had recently disclosed further improprieties involving Fortas’s finances and potential conflicts of interest, and I had told Mitchell that as a courtesy and on a completely confidential basis, we should keep Chief Justice Warren informed about the new charges emerging from the Justice Department’s ongoing investigation. Warren was grateful because he felt that the new information represented a serious threat to the reputation of the Court; he was convinced that Fortas had no choice but to step down.
It was a difficult time for Fortas. I felt that the press had to some extent singled him out for criticism as a belated way of getting at Johnson, and I called him the day he announced his resignation and expressed my sympathy. Still, there was no question that he had been astonishingly indiscreet, and that it was important for the Court that he resign.
Once again I asked John Mitchell to direct the search for a Supreme Court Justice. We selected Judge Clement F. Haynsworth of South Carolina and announced his nomination on August 18, 1969. Haynsworth came from a distinguished legal family, was fifty-six years old, and had served with great distinction for twelve years on the Fourth Circuit Court of Appeals.
Harsh criticism began as soon as I announced the nomination. Civil rights organizations immediately called Haynsworth a racist; one group said he was a “laundered segregationist.” George Meany claimed that his record was antilabor. The press picked up these themes and played daily variations on them. Soon the pack mentality took hold in Washington. Organized interest groups went to work, and letter and phone campaigns began putting pressure on the Senate.
Senator Birch Bayh of Indiana became the leader of the anti-Hayns-worth forces. During Haynsworth’s confirmation hearings, Bayh charged him with conflict of interest, claiming that he should have disqualified himself in several cases involving litigants who were customers of a company in which he owned stock. These disclosures had been investigated several years earlier by then Attorney General Robert Kennedy and by Judge Simon Sobeloff of the Fourth Circuit, who both found no conflict of interest. John Frank, the leading legal authority on disqualification of judges, testified at the time that not only did Haynsworth have no obligation to disqualify himself, he had an affirmative responsibility to rule on the cases in question. But the truth never caught up with Bayh’s charges as he and other liberal Democrats on the Senate Judiciary Committee worked with a cooperative press corps to discredit Haynsworth.
Bayh and his supporters ended up maintaining that it was no longer sufficient that a nominee had not engaged in any impropriety; now there must be no “appearance” of impropriety. Thus opponents of a nominee could raise an “appearance” of impropriety by false charges and thereby defeat him. It was a vicious circle: the nominee would not be condemned for what he had done but for what he had been accused of having done by his detractors.
Few senators were candid enough to admit on the record the real grounds for their opposition to Haynsworth, but one anonymously told a reporter, “Conflict of interest is so much jazz; we are against him for what he believes.”
In the middle of the furore, a delegation of Republican senators led by the Minority Whip, Robert Griffin of Michigan, came to the White House to ask me to withdraw the Haynsworth nomination. They explained the pressure they were under and the political leverage that was being brought to bear on them by labor and the press.
I refused. In fact, I went further and said that I would not withdraw Haynsworth’s name even if he himself asked me to. There was a basic constitutional principle involved, the right of a President to choose his nominees for the Supreme Court. There was also a human element. To withdraw Haynsworth’s name while he was under such bitter partisan fire might destroy his reputation, driving him from the bench and from public service. I made it clear that I planned to see the nomination through to the end.
On November 21 the Senate had rejected the Haynsworth nomination, 55 to 45, with seventeen Republicans joining the liberal Democrats in opposition.
On December 4 Haynsworth came to the White House, and we talked for an hour in the Oval Office. He seemed confused and dazed by what had happened. He is a quiet, refined, and extraordinarily kind man. When he said that the ordeal had been harder on his wife than on him, I thought about how Pat had felt during the fund crisis, and I hoped that the private hell they must have endured would not leave them scarred for life as ours had done. That night I wrote a note: “Haynsworth was the victim of forces he probably did not understand.”
On January 19, 1970, two months after the Haynsworth vote, I nominated Judge G. Harrold Carswell of the Fifth Circuit Court of Appeals in Florida. I had told Mitchell to make sure that our second nominee was absolutely above personal or professional reproach; the fact that Carswell owned no stocks or securities seemed to put him beyond even the “appearance” of impropriety that had contributed to Haynsworth’s defeat.
It did not take long for the liberal opposition to Carswell to start. As if on cue, the ritual charges of “racist” were made in the media and in Congress. Any conservative Southern judge would have to expect this kind of attack, and I was not surprised by it. Unfortunately, we had missed one statement from Carswell’s distant past. In 1948, as a Democratic candidate for the Georgia legislature, he had said, “Segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed and I shall always so act.” Carswell had renounced his twenty-two-year-old views, but the damage was irreparable. I was distressed that we had overlooked this unfortunate statement, but I did not believe that youthful indiscretions that had been recanted and redeemed should be held against an individual in later years.
Carswell had looked highly qualified on paper; the exceptionally rigorous scrutiny to which he was subjected, with various senators and their staffs determined to dig out anything bad they could find and then present it in the worst possible light, revealed that he was not as highly qualified as we had thought. I still believe that Carswell would have passed muster by the standards of other times. But the post-Haynsworth partisan fallout was too intense. The word mediocre was increasingly used to describe him and his career. His defenders were placed in the position of having to prove a negative—that he was not mediocre.
When the vote was taken on April 8, the Carswell nomination was rejected, 51 to 45. It was cold and reasoned anger that impelled me to make a statement the next day commenting on the Senate’s action. If the Northern liberals had tasted victory in defeating my second nominee, I was determined
that they would at least pay a political price for it in the South. I said:
I have reluctantly concluded that it is not possible to get confirmation for a Judge on the Supreme Court of any man who believes in the strict construction of the Constitution, as I do, if he happens to come from the South. . . .
When you strip away all the hypocrisy, the real reason for their rejection was their legal philosophy, a philosophy that I share, of strict construction of the Constitution, and also the accident of their birth, the fact that they were born in the South. . . .
And I have concluded, therefore, that the next nominee must come from outside the South, since this Senate, as it is presently constituted, will not approve a man from the South who shares my views of strict construction of the Constitution.
Looking back I have no quarrel with some of those senators who voted against Carswell because of their belief that he lacked the superior intellectual and judicial qualities to be a Supreme Court Justice. But I still believe that many of the senators who voted against him used the issue of his competence as camouflage for their real reason, which was their disapproval of his constitutional philosophy.
On April 14, 1970, I nominated Federal Circuit Court of Appeals Judge Harry A. Blackmun. An Eisenhower appointee who had practiced law for twenty years prior to ten and a half years of distinguished service on the federal bench, Blackmun was a Northerner, from Minnesota. He was unanimously confirmed by the Senate on May 12.
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