Carswell: Even if he is mediocre…
THE SECOND IN OUR SERIES OF SUPREME COURT REJECTS
On December 5, 1970, the New Yorker published one of its then typical uberlong pieces, entitled Decision, by Richard Harris, under the Annals of Politics rubric. The article explores every nook and cranny of the dealing that went into the rejection of Nixon’s nomination of a Florida judge, G. Harrold, Carswell, for the Supreme Court post vacated by Abe Fortas. Harris later made the piece into a book entitled Decision. It was reviewed by William Shannon for the New York Times, who wrote, in all pre-Watergate innocence:If historians in the future conclude that Mr. Nixon never gained what the Chinese call “the Mandate of Heaven,” there will be no disagreement with the Carswell affair as a critical turning point.As Shannon explains, using the pre-mealy mouthed language of a newspaper that had not yet suffered occupation by neo-cons and neo-liberals:
Carswell had a racist record, a dim reputation as a lawyer, and was conspicuously unfit to serve on the nation’s highest court and probably any other court.
According to John Dean, Carswell was recommended to the attention of John Mitchell, Nixon’s AG, by, of all people, Warren Burger and William Rehnquist. Burger had been Carswell’s godfather in the judiciary, getting him his post on the 5th district Federal Court of Appeals. Then, six months after this elevation, Nixon nominated him for the Supreme Court.
The drama about Carswell would have probably been more intense if it was known then that he was gay. He was a closeted man, and was, alas, arrested years after his little time in the spotlight for soliciting some guy for sex in the restroom – one of those nasty police entrapment things that are a Florida specialty. Hence, Carswell’s martyrdom status took a hit on the right.
At the time, though, the controversy was really about what Senator Borah had called “scholarship and learning in the law.” When the Dems began to think about blocking Carswell – which they did under the urging of those two once powerful factors in the Democratic Party, the Unions and the NAACP – this was the point of weakness they chose. Birch Bayh, who was the pointman for the party, roused up the lawyers. We are talking about a period in time when the mandarin class had been, if not diversified by civil rights and the protests against Vietnam, at least somewhat shaken by them. And of course the old New Deal-Great Society coalition was still strong. In fact, the seventies would be its last roar. What the people working under Bayh’s group found was that, among the grassroots lawyers, there was a general sense of disbelief that a mook with such few credentials was going to sit on the Supreme Court. The Court had, after all, been everywhere and doing everything for a decade. Or so it seemed from the headlines. So it was, in the lawyers’ view, an ace team. Putting Carswell on it was like drafting a little leaguer to play pro baseball.
These maneuverings were made easier by the Senate Republicans. It is hard to believe, but once upon a time, my children, there was a real subspecies called “the liberal Republican”. In fact, there were quite a lot of them, mostly from the Northeast and the Midwest. They formed a not inconsiderable group called the Wednesday club, and they were pitted against the more conservative Senate Steering Committee. The liberal Republican is as dead as a dodo now, except in the minds of major newspaper editors (the kind of people who view the late McCain with the reverence usually reserved for some major statesman, in spite of McCain’s pitiful record of legislative and moral accomplishment), but they weren’t then, and they did like to play havoc with Nixon’s more hardline side. That was the side Nixon was trying to showcase with his judge choices. This was the law and order he was talking about. Haynsworth had been defeated in a fight that was about his finances and ethics, but was really about his support for segregation. Carswell also seemed like a law n order boy. But his record was not exactly sterling. In fact, it was less than ordinary. Until being nominated for the Supreme Court, Carswell had left very little mark on the world of North Florida.
But he had left some, of the typical white supremacist kind. In 1956, Carswell had been part of a group that took a municipal golfcourse private. The reason for this decision was that the court had ordered the golfcourse to stop discriminating against blacks who wanted to play golf. The Washington Post broke the story. Carswell had lied about it under oath to the Judiciary Committee, who had asked if he was familiar with the papers of the private club he was part of, this proved to be the kind of flaw the Dems were looking for.
And soon, of course, there was more material. Carswell was not a distinguished judge, but he did like to write up his views on racial matters. He edited a newspaper in his youth – which means in his twenties, not in prep school, in this case – and he expressed his decided preference for white supremacy. The NYT quoted a friend from those days:
Ol’ Harrold was just playing the game… Back then this county didn’t hardly know what an integrationist was.
And so it was the Senate voted down his appointment in 1970. They did vote for the nominee afterwards – Harry Blackmun – who is best known, perhaps, for having written the decision in Roe v. Wade.
Carswell is mightily forgotten, except for one cute remark. In defense of Carswell, Senator Roman Hruska, GOP from Nebraska, got up and said: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers and they are entitled to a little representation, aren’t they?”
As for Carswell, Ol’ Harrold quit his judgeship pretty soon after the fiasco of his nomination and made an ill advised run for the Senate. And then of course the entrapment by law n order Florida for trying to get an honest blow job.
He died in 1992. I can’t imagine that he died grateful to the people who had nominated him to a station above his grade. It ruined his life. He was made to be a closeted conservative judge, assembly-lining drug offenders for the pen. Like so many.