Over at Jost on Justice, Kenneth Jost has a post blaming the Republican party for politicizing the Supreme Court through nominations dating back to the Nixon Presidency. (HT: Howard Bashman, How Appealing) By repeating what Justice Lewis Powell has previously described as the “mindless misjoinder” of Haynsworth’s name with Harold Carswell’s, the post unfairly insults Judge Clement Haynsworth in service of an overtly partisan account of Supreme Court nomination history.
The gist of Jost’s post is that, although it is tempting to blame both major parties for politicizing the Supreme Court, “a longer historical perspective makes clear that it is the Republican Party that has politicized the Supreme Court, deliberately and wantonly, with little if any regard for the potential damage to the court’s long-term ability to maintain public confidence.” Jost then follows with a three-paragraph accounting of Republican nomination practices.*
In discussing nominations for the seat vacated by Fortas, Jost writes that “Nixon’s two rejected nominees – Clement Haynesworth and G. Harrold Carswell – insulted the court’s dignity.” Apart from misspelling Haynsworth’s name, Jost’s decision to lump these two nominees together suggests a lack of care. I’m not aware of any scholarly or popular history arguing that Haynsworth and Carswell were comparable jurists. Indeed, the record is to the contrary.
Yes, Judge Carswell was an underwhelming candidate for the Supreme Court. Carswell’s nomination occasioned Senator Roman Hruska’s famous remarks about judicial mediocrity: “Even if he were mediocre, 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? We can’t have all Brandeises, Frankfurters and Cardozos.”
Haynsworth was no mediocrity. Here is what Justice Lewis Powell wrote in the foreword to a 1991 book about Haynsworth’s nomination:
[Haynsworth] was appointed by President Eisenhower in 1957 to the United States Court of Appeals for the Fourth Circuit, which was headquartered in my home city of Richmond. His appointment was widely approved by the bar, as his qualifications for the federal bench were the highest.
* * *
His obituary in the Washington Post of November 23, 1989, correctly stated that Haynsworth “brought to the bench a reputation as a top-flight lawyer . . . [whose] judicial opinions were known for the workmanlike way in which they were crafted.”
* * * When Justice Fortas resigned, the president nominated Clement Haynsworth. I strongly supported him and was successful in obtaining support for the nomination for the nomination from all but one of the past presidents of the American Bar Association. Despite wide support for Haynsworth from the bar and from leaders in the South, the Senate by a vote of fifty-five to forty-five rejected the nomination.
I repeat what I have said before: The defeat of this eminently qualified jurist was “purely political” and reflected adversely on the Senate rather than on Clement Haynsworth. He accepted his defeat with grace and without bitterness. * * *
As may be evident from what I have said, in my view Clement Haynsworth was an exceptionally able–indeed a distinguished–federal judge. As John P. Frank, the author of this book, emphasizes, Haynsworth also was “a perfect gentleman,” a loyal friend, and as fine a human being as I have ever known.
After Haynsworth was not confirmed, the president nominated G. Harrold Carswell, an undistinguished federal judge from Florida. References were frequently made in the press and elsewhere to “the Haynsworth and Carswell” nominations, despite the fact that two more dissimilar judges would not be easy to find. Yet, this mindless misjoinder of names occasionally is made even today.
* * *
America lost the services of a potentially great Supreme Court justice when the Senate defeated Judge Haynsworth’s nomination. But America’s loss was the fourth circuit’s gain. * * * Certainly, his nomination and defeat were significant events in American history. For me, at least, he left a much more significant mark on American law through his scholarly and distinguished opinions as a fourth circuit judge. Indeed, I believe it was the quality of his work on the fourth circuit after his defeat that has led many to recognize the injustice of the Senate’s 1969 vote.
Lewis F. Powell, Jr., Foreword ix-xi (emphasis added), in John P. Frank, Clement Haynsworth, the Senate, and the Supreme Court (University of Virginia Press 1991).
* There is more to disagree with in Jost’s opinionated rendition than his treatment of Judge Haynsworth. For example, whatever other objections one may have to President Reagan’s nomination of Antonin Scalia, it is simply wrong to assert that the “selection of Antonin Scalia for Rehnquist’s seat amounted to a conservative poke-in-the-eye to bipartisanship.” Justice Scalia was confirmed by a Senate vote of 98-0. But I’m only concerned in this post to take sharp issue with Jost’s characterization of Haynsworth.
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