The Wars of Watergate (28 page)

The day after the nomination, the President called in reporters to discuss his ideas about Supreme Court Justices. Nixon said that he would have an “arm’s-length” relationship with Burger—again, a dig at Fortas. But he focused his remarks on his own philosophy as a “strict constructionist.” What had once been a clearly understood term in scholarly discourse about the Constitution now became a pliant phrase, grist for political exploitation and manipulation. Politicians who railed against the Warren Court’s expansive views of civil liberties appropriated the slogan as their own. The criticism dripped with irony. A generation earlier, “strict construction” had been the liberals’ rallying cry against alleged conservative excesses in construing the
Constitution to invalidate modern liberalism. Moreover, Justice Hugo Black, often credited for leading the modern Court’s libertarian drives, always insisted that he was a strict constructionist; his opinions, he contended, merely enforced the protective language of the document.

Black’s definition in its own way departed from the original understanding of the term. In the early nineteenth century, strict construction was advocated by those who opposed what they regarded as the overly broad interpretations of the Constitution by Chief Justice John Marshall. But at that time, Marshall was regarded as the consummate conservative. His opponents, particularly Thomas Jefferson (who on occasion found it convenient to discard his own notions of strict construction), were the liberals of their day. Nixon’s response to the Supreme Court’s decision in 1962 prohibiting prayer in the public schools underlined how useless the public discourse over strict construction had become. Asked for his reaction, Nixon said that he had “no intention of criticizing” the ruling. In the next breath, however, he complained that the Court had “followed its usual pattern of interpreting the Constitution rigidly.”
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If the Burger nomination was a political and personal triumph for the President, his next offerings were disastrous. Perhaps nothing with the exception of the ever-growing interinstitutional conflicts of the Vietnam war so poisoned the relations between Nixon and Congress as the Senate’s rejection of his successive nominations of Clement Haynsworth and G. Harrold Carswell to the Court. A failure to confirm a presidential nomination is rare enough, but for it to happen with two successive nominees was truly extraordinary. The Senate’s action resulted from its differences with the President over political objectives and philosophy, but it also must be viewed from the perspective of the Fortas rejection in 1968 and the circumstances surrounding his resignation the next year.

Fortas’s confirmation hearings exposed doubts about his integrity, doubts that lingered as a ticking time bomb. Several months after his nomination as Chief Justice failed, a
Life
magazine article charged that Fortas had accepted improper fees and had intervened with a federal regulatory agency in behalf of a former client whose foundation he served as a paid consultant. And Department of Justice investigators reportedly turned up more incriminating evidence. The
Chicago Tribune
disclosed on May 14 that the department had sent word to Fortas that he had “been extended unusual courtesy” because of the need to respect the Court, but he also was reportedly told by someone in the department that the courtesy was not “openended.” Fortas was threatened with release of the information unless he resigned from the Court. As the pressure intensified against Fortas, Attorney General Mitchell visited Chief Justice Warren and briefed him on the department’s evidence; shortly afterward, Fortas submitted his resignation. Mitchell and his aides carefully orchestrated a press campaign that fostered
the impression of a very substantial case against Fortas. In fact, they did not have an airtight case, as one aide later admitted.

The Republicans’ glee at Fortas’s downfall was undisguised, but that reaction disturbed some Administration supporters. Court of Appeals Judge Warren Burger, for example, told the President that Republicans should consider points of “basic fairness” as well as the political consequences that such behavior could have for future Supreme Court nominees. He warned Nixon that the “suppressed rage” of Fortas’s supporters “will likely assert itself and your nominee may become
their
‘whipping boy.’ ”
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The next nominee—coincidentally, Burger himself—emerged unscathed, but his prophecy soon proved correct.

Fortas’s resignation sparked presidential aide Pat Buchanan’s talent for convoluted political maneuvers. Buchanan told the President that Mitchell had hinted that the charges regarding Fortas were “only a part” of what might be revealed against other Justices. Perhaps the President was about to reap a bonanza. But Buchanan warned that Nixon’s first nominee must not be perceived as “Nixon’s Fortas.” Instead, Buchanan offered a scenario whereby Associate Justice John Marshall Harlan—widely respected by all sides—would be elevated to Chief Justice as an “interim Pope,” while the President selected the “most able, most brilliant” appellate judge as Associate Justice. Buchanan’s endgame envisioned two triumphs for the President: first, Nixon would gain the prestige of a Harlan nomination, but also Harlan’s age and his physical infirmity meant that Nixon might name two Chief Justices in his first term.
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The President’s selection of Burger had obvious political motivations. His next choices for the Court offered payment on his obligation to key Southern supporters, particularly Senator J. Strom Thurmond, to appoint a man from the South—presumably a judge who would be less amenable to pressures to uphold desegregation measures. On August 18, 1969, Nixon nominated Clement F. Haynsworth, who had spent the past twelve years on the Fourth Circuit Court of Appeals and who was, like Thurmond, a South Carolinian. By now, the Fortas affairs—both in 1968 and in 1969—had provoked deep resentment among Senate Democratic liberals. The Haynsworth nomination and its apparent link to Nixon’s vaunted “Southern Strategy” only exacerbated their hostility. But Haynsworth had just enough vulnerability as a Supreme Court nominee to enable the senators to rationalize their opposition on more than political or ideological grounds.

“The President particularly wants to see us scoring points on Haynsworth in the South. He has been pushing me on this,” presidential aide Harry Dent reported. Dent had been a Thurmond assistant, and he was a primary Nixon advisor on politics, particularly Southern politics. But the appeal to the South only gave Northern liberals increased determination to defeat Haynsworth’s nomination. Senator Birch Bayh of the Judiciary Committee
led the opposition, focusing on two points. First, there was some question of Haynsworth’s personal ethics, as it was discovered that he had ruled in a case involving a company in which he owned stock. Second, some of his decisions in labor and civil rights cases aroused opposition from powerful constituencies to which Senate liberals had intimate, perhaps even dependent, links. While Haynsworth had significant support from liberals who knew him or who had studied his work, they were isolated and eventually overwhelmed by the concerted lobbying of organized labor and civil rights organizations.
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As the opposition developed, the President counterattacked in his own way. He accused senators of “character assassination” and vigorously defended Haynsworth. Instead of defending the judge’s record and invoking his respectable list of supporters, Nixon emphasized presidential prerogative and threw down the gauntlet to the liberal opposition. Haynsworth’s conservative philosophy was precisely what Nixon wanted: “I think the court needs balance and I think the Court needs a man who is conservative.” Meanwhile, Dent’s staff diligently investigated Senator Bayh’s own financial dealings and his ties to organized labor. They also urged Republican Whip Robert Griffin (who had organized the filibuster on the Fortas nomination) to mute his opposition to Haynsworth. When Senator Edward Brooke (R–MA)—the only black in the Senate—hinted that he would vote against Haynsworth, Nixon wrote him to defend the judge’s racial views and civil rights record. He regretted Brooke’s statement, but even more he regretted that Brooke “felt compelled to publicize the difference between us.” Griffin and other Republican senators urged the President to withdraw the nomination, but he steadfastly refused.
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On November 21, seventeen Republicans joined a 55–45 majority to reject Haynsworth.

For the first time since 1930, the Senate had turned down a presidential nomination to the Supreme Court. The Haynsworth defeat demonstrated the fragility of Richard Nixon’s congressional support only one year after his election. Likewise, it demonstrated the reality that the opposition’s power necessitated some finesse, some accommodation on the part of the Administration. What was
not
needed was further confrontation. Betraying his pique, even his contempt, for the Senate action, however, Nixon announced that he would invoke the same criteria for his next Court nominee. In fact, he did not. Instead, he offered a caricature of a Southern conservative, resulting in a humiliating defeat and a decisive break in his congressional relations.

G. Harrold Carswell was born in Georgia and attended law school there, but after an unsuccessful campaign for the state legislature, he moved to Florida. Carswell converted to the Republican Party in the 1950s, and Eisenhower appointed him U.S. Attorney and then a federal district judge. President Nixon promoted Carswell to the Fifth Circuit bench shortly after
he took office. In that brief honeymoon period, the Senate did not scrutinize nominations very closely, particularly when they involved apparently routine judicial promotions. Florida Governor Claude Kirk suggested Carswell as a Supreme Court nominee to Nixon in May 1969, endorsing him as “a man for all ‘regions.’ ”

The immediate response to Carswell’s Supreme Court nomination seemed favorable; most of the President’s Republican opponents in the Haynsworth affair quickly indicated that they would have no difficulty supporting a Southern nominee. The “Carswell Game Plan,” as devised by White House aide Lyn Nofziger, oozed confidence. Nofziger quickly had taken action “to nullify wrongful racist charges,” which some critics, he said, had raised against the nominee. Assistant Attorney General William Rehnquist, who had a part in Carswell’s selection, insisted that there was “nothing else in Carswell’s background to worry about.” He had devised a brief, “The Case for Judge Carswell,” for distribution to key aides. Finally, Rehnquist would be available to write speeches for Senator Roman Hruska (R–NB), a key Administration supporter on the Judiciary Committee, and he would provide some “attack material” for Nofziger’s use.
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Within a few days, however, civil rights groups denounced the nomination, pointing out incidents of Carswell’s rudeness toward black attorneys, the substantial number of his rulings against civil rights advocates, and the high rate of reversal of his opinions by the Fifth Circuit. Opponents also unearthed a 1948 statement in which Carswell said that “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.” The nominee promptly went on national television and repudiated the statement. Unfortunately, prompt investigations showed that strong racial biases continued to pervade Carswell’s personal affairs and judicial decisions long after the 1948 statement.

The hearings by the Senate Judiciary Committee brought forth an array of witnesses who denounced Carswell as racist, antilabor, and hostile toward women’s rights. Leaders and scholars within the national legal community severely criticized the appointment, one witness declaring that Carswell’s record was distinguished only for his “persistent refusal to make the law an effective shield for black people claiming elemental rights.” Yale Law School Dean Louis Pollak (a former Supreme Court clerk) struck the dominant chord when he charged that Carswell had a mediocre record and “the most slender credentials of any man put forward [for the Court] in this century.” The response of the Administration was lame and became a classic. During the Senate debate in March, Senator Hruska confronted Pollak’s charges and said that 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?” The bitterness was all too apparent: “We can’t have all Brandeises and Cardozos
and Frankfurters and all stuff like that there,” the Senator went on. Although Hruska denied that Carswell was mediocre, the damage was done.

The President put it a bit more elegantly when he said that Carswell’s 1948 statement did not concern him, but that the nominee’s twelve-year judicial record was sufficient—“a record which is impeccable and without a taint of any racism, a record, yes, of strict constructionism [in] … the interpretation of the Constitution and … the Court needs [that] … kind of balance.” Privately, the President was seething. In a White House meeting with key aides on March 26, 1970, he said that he never wanted Republican Senators Case, Goodell, Mathias, Percy, and Schweiker in the White House, complaining that they were not supporting him on this or any other issue. He was bitter about the lack of concerted effort on Carswell’s behalf from the Justice Department. Mitchell, he said, was “on the line,” and apparently, he was not satisfied with Rehnquist’s work. Ehrlichman reported that the President said the Assistant Attorney General was “not a nutcutter.” Someone in the group—Nixon or Haldeman—saw the handwriting on the wall: “we’ll prob[ably] lose it.”
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Two weeks later, despite intense White House pressure on Republicans, the Senate rejected the Carswell nomination, 51–45.

The President responded with a display of public anger nearly comparable to his dramatic “last press conference” in 1962. He turned the charges of bias around and accused the detractors of both Haynsworth and Carswell of “vicious assaults” on the nominees’ intelligence, integrity, and character. They had been falsely accused of racism. Strip away the hypocrisy, the President said, and what was left was that both men had been rejected for their legal philosophy of strict construction, “and also the accident of their birth, the fact that they were born in the South.” With a bow to his Southern supporters, the President reluctantly concluded that the Senate, “as presently constituted, will not approve a man from the South who shares my views of strict construction.” That was the political challenge to the Senate, as well as an emotional appeal to the South.