G. Harrold Carswell: The Early Harvard Independent and the Fight for the Supreme Court

By Morris Abram, Jr. ’71

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On January 19, 1970, President Richard Nixon nominated Federal Court of Appeals Judge G. Harrold Carswell to the US Supreme Court. The seat had previously been occupied by Abe Fortas, a liberal justice and Lyndon Johnson appointee and protégé, who had resigned from the Court when his financial ties to the foundation of disgraced financier and felon Louis Wolfson were disclosed.

The nomination of Carswell was widely perceived as an act of revenge and partisan pandering by Nixon, and his aggressive Attorney General John Mitchell.

Nixon’s intended target of revenge was the US Senate, which had just rejected his first Supreme Court nominee, Clement Haynsworth, a conservative Southerner, and Federal Appeals Court Judge. While opposition to Haynsworth initially centered on his labor and civil rights record, the nomination ultimately failed more because of alleged financial improprieties, ironic as financial issues had similarly caused the resignation of the liberal Justice Fortas. Seventeen Republican Senators joined 38 Democratic colleagues in the nay vote, infuriating Nixon.

The pandering was part of Nixon’s “Southern Strategy.” Judge Haynsworth had been nominated in an attempt to appeal to conservative Southern voters uneasy with the gains and trajectory of the civil rights movement. When the Senate rejected Haynsworth, Nixon decided to double down. He nominated Carswell, a Federal Court of Appeals Judge based in Tallahassee Florida.

As Carswell’s judicial record was brought to light, believers in competence and civil rights were stunned and alarmed. Carswell made the credentials and character of defeated nominee Haynsworth look stellar in comparison. During an unsuccessful 1948 run for the Georgia State Legislature, where his father had served for 30 years, Carswell stated his “firm, vigorous belief in the principles of white supremacy." But it was not this statement, which Carswell now firmly disavowed, that alone shocked or disqualified him. It was pointed out that long serving Supreme Court Justice Hugo Black, a Franklin Roosevelt appointee to the Court, was in his youth a Ku Klux Klan member, but later repudiating these views, joined the Court in voting to desegregate public facilities in Brown v. Board of Education (1954).

Rather it became evident that Carswell was perhaps uniquely inappropriate and unqualified amongst judges in the federal judiciary. Testimony was presented that Carswell was openly hostile to civil rights claims, that he had shouted at black lawyers while acting cordial towards white ones, and had turned his back on civil rights attorneys during their arguments. Carswell also drew opposition from prominent women, claimed by his supporter Senator James Eastland of Mississippi, to be a first for a Supreme Court nominee in this regard. Betty Friedan, Senator Patsy Mink and others pointed to a record that included Carswell’s vote denying a rehearing for a woman refused employment as an assembly line worker because she was the mother of pre-school children.

Fifty-eight percent of Carswell’s judicial decisions had been overturned on appeal, and the quality of his opinions were described by seasoned attorneys as pedestrian and at times unworthy of a legal novice. The Dean of Yale Law School stated he had “more slender credentials than any nominee for the Supreme Court put forth this century." One of his most ardent supporters, Republican Senator Roman Hruska of Nebraska, sought to justify Carswell ‘s lackluster record with an endorsement which became famous "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers," Hruska said. "They are entitled to a little representation, aren't they, and a little chance? We can't all have Brandeises and Frankfurters and Cardozos and stuff like that there."

Despite this history, Carswell was considered undefeatable by most observers. Republican Senators had just stuck their necks out to defeat President Nixon’s previous nominee, Judge Haynsworth. Pre-Watergate, the President enjoyed wide support in many parts of the country. It was thought to be political suicide for those in close districts to again oppose a President of their own party, a President known to keep score and play hardball. Carswell, a World War II veteran, had served as a Federal District Judge since 1958, appointed by President Eisenhower. He was Chief Judge of the District Court for the Northern District of Florida before being appointed by Nixon to the US Court of Appeals in 1969. His long tenure earned him support from a majority, but not all, of the judicial colleagues in his Circuit.

Not unlike other students who followed politics closely, I was deeply troubled by the prospect of such an unqualified individual ascending to a lifetime seat on the nation’s highest court. Campuses across the country were in turmoil. Many including Harvard had been shut down by protests over the Vietnam War. How could one respond persuasively and credibly to those advocating disruption, politicization of the university, and at the fringes violence, when the democratic process in which I believed allowed such a travesty to be consummated?

I discussed my frustration with my father, who had been a close associate of Martin Luther King, and had litigated with then Attorney General Bobby Kennedy the “One Man, One Vote” Sanders v. Gray case before the Supreme Court. He remembered from his days as a young person in rural Georgia another Carswell who had served in the State Legislature, and was famous for his retrograde views and “red wig”. He called his friend Judge Osgood Williams of Atlanta, who like my father hailed originally from a small Georgia town. They laughed together at the memory of this odd relation to G. Harrold Carswell, though neither laughed at his views, or at Carswell’s nomination. Thinking it might be a good story for the Independent, but with no expectations as to what I might find, I decided to travel to Tallahassee and see whether there might be something new to report. As someone who had grown up in the South, I felt comfortable making the trip, and wanted to get a feel for how those in the community viewed Carswell.

Perhaps embarrassed by their failure to uncover Fortas’ and Haynsworth’s questionable financial dealings, the FBI had apparently focused above all on Carswell’s finances, and turned up nothing incriminating. In it’s vetting, however, it failed to look carefully at Carswell’s extra curricular activities involvement in Tallahassee municipal affairs when he served as US Attorney in 1956.

Conversing with longtime Tallahassee citizens late into the night, I was impressed with their clear memories of how a public golf course had received $35,000 in federal funds for its construction, and then in 1956 been transferred to a private organization. Carswell had signed his name on the incorporation papers. These citizens expressed anger as they recounted a maneuver they had always regarded as a transparent attempt by Carswell and others to create a private entity barring blacks, this as desegregation was then becoming the law of the land as mandated by the Supreme Court.

These Tallahassee citizens, including whites who could have faced reprisal or ostracism for opposing a hometown son, agreed to commit their memories to paper, affirming that it was widely known at the time that this public to private conversion was above all an attempt to exclude blacks and defy federal law. Not knowing what an affidavit should look like, I phoned around for advice, and was able to obtain sworn written statements and signatures from these concerned individuals. These in hand, I boarded the next plane to Washington, D.C. and there met Senator Edward Kennedy, Clarence Mitchell, legal affairs director of the NAACP, and other leaders in the fight against Carswell. Mitchell presented the affidavits in his testimony before the Senate.

My next stop was Cambridge, where The Harvard Independent, holding the presses, became the first newspaper in the country to report the story.

Carswell’s previous testimony as to his recollection and intent in the golf club conversion became a sticking point for some Senators who had previously been on the fence as to their vote. On April 8, 1970, 13 Republicans joined 38 Democratic colleagues in voting down Carswell’s nomination, the first time since Grover Cleveland that a President’s Supreme Court nominees had been rebuffed twice in a row. A frustrated Richard Nixon gave up on his Southern strategy and nominated Harry Blackmun a Court of Appeals Judge from Minnesota to fill the vacant seat. Blackmun was approved unanimously by the Senate, and would later become the author of the Court’s Roe v. Wade decision.

There were many persons in private and public life who contributed greatly, far more than I, to the derailing of Carswell’s nomination. I was glad, however, to have been able to play a small part, and to see the story published in our early Independent, one of a number of pieces of investigative journalism from our great team.