Sunday, August 17, 2014

Hidden History: The Last Supreme Court Nominees Discriminated Against

A statement this week by President Obama centered around his thought that he would get to appoint one more Supreme Coourt justice. Are there any firsts and unprecedented appointments left? An Asian justice? An openly gay justice? A justice that does not speak English? America is running out of firsts. The press loves to spotlight firsts. For the Supreme Court, the first Catholic was in the mid 1800s, first Jew was a century ago, first black was two generations ago, and we recently had our first Hispanic. Hurrah for progress! No one ever talks about lasts or even in our victim culture, last instances of discrimination. The last group barred from joining the Supreme Court (SCOTUS) was the bloc known as Southern, white men.

Supreme Court presidential nominations have had few outright rejections in its history. The president would nominate, the ABA gives its advice beforehand, and the Senate normally confirms. A change occurred in the 20th century with the rise of voting blocs as John J. Parker's nomination failed by one vote due to his attitude towards labor and the newly formed NAACP's agitation. Eisenhower made appointments during the a Congressional recess. Once the progressive takeover of the machinery of the Federal government was complete, the problem turned into exerting control of the court system. The activist Warren court became a fundraising gold mine for the right as hocus pocus rights were discovered. Even the Burger Court found a way to twist the 14th Amendment for illegitimate kids. Before the famous Borking incident that birthed a political atmosphere for nominations thanks to Senator Ted Kennedy, conservative Mephistopheles himself, Justice Antonin Scalia, was confirmed 98-0. Nominations were political, but not as overtly caustic as now. Incidents always involve politics (increasingly affecting lower court appointments with eyes on future SCOTUS potential), but the Senatorial blockade of Southern white men in '69-'70 was special.

President Nixon came to power in '69, and realized with most of the government machine controlled by the left, a way to influence America for a long period was through a "Nixon Court". Per Ehrlichman's book, he was looking for strict constructionists, with no racial or ethnic slots who would come from meat and potatoes law schools. Not the Ivy League and "above all, not the Northeast" (Ehrlichman, Witness to Power). This fed into Nixon's '68 campaign on law and order, with moves to push the SCOTUS away from it's liberal, activist Warren behavior that many associated with the unraveling in process in America. When Nixon arrived in the Oval Office, he had the Chief Justice slot to fill, and fortuitously, Justice Abe Fortas was forced to resign due to ethics scandals that mushroomed from initial investigations as he was originally to be raised to Chief. This was a immediate and unique opportunity for Nixon to change America's political course and for far beyond his four to eight years in office.

With two slots, Nixon, ever the political animal, picked Warren Burger for Chief Justice who Nixon said "had Burger's promise that Burger would retire before Nixon did so Nixon could appoint another, younger Chief Justice" (Ehrlichman, Witness to Power). Nixon would banter with his inner circle about possibilities. Politically, they would be strict constructionists, but he understood the identity group bingo game of American politics. He wanted Catholics, women, and Southerners. A problem with female nominees, pointed out by his inner circle and never understood by the press, is that the difficulty in nominating a woman in 1970 or even 1980 started with the lack of women at top flight law schools twenty five years earlier to work their way up the legal ladder. Apply this to anything prestigious, and the left disregards the filtered funnel concept. Nixon joked about Jewell LaFontant because she was black and a woman, to which he added that it was "too bad she isn't Jewish" (Witness to Power). Nixon did have a Jewish legal supporter, Rita Hauser, whom he considered for SCOTUS. Hauser made the mistake of saying there were no Constitutional prohibitions for same-sex marriage. Nixon remarked, "Did you read that? There goes a Supreme Court Justice! I can't go that far; that's the year 2000! Negroes [and whites], okay. But that's too far!" (Ehrlichman, Witness to Power) In April of '69 in order to help Nixon, Warren Burger created a list of potential nominees to suit Nixon's quest. After Burger's confirmation, Nixon first nominated a strict constructionist from the South, Clement Haynsworth, to fill the open Associate slot.

Clement Haynsworth was a sitting judge on the Fourth Circuit of Appeals from South Carolina. He spoke slowly and deliberately with a Southern drawl. His ascension to the Court would be a great signal for Nixon to the South to help with 1972. While Nixon's team saw the South as a secure area for '72, they were going to approach desegregation delicately, keep an eye on how hard they pushed the South and focus on ethnics and Northern union voters for '72. The Civil Rights crusade and subsequent formalized mechanisms for forced integration made race a huge concern for Nixon in his first term. Like gay rights today, any black issue was a club used by the left in political battles. Throughout 1969 and 1970, Nixon's team was confronted with riots in cities so often that thankfully the outgoing LBJ administration had faced the same problem and left behind the stacks of papers and formal agreements to handle anything. The actual implementation of the Civil Rights crusade's victory vote was left to be implemented and created a need for sweeping away the old guard.

The Haynsworth nomination put this on display. Haynsworth was attacked immediately for conflicts of interest that were never proved, for being a racist, and for being anti-labor. In Nixon's memoirs, he cites the simple anger of the left for what Haynsworth believes, which was not a problem when he was nominated thirteen years earlier to the Appeals Court, and writes,
Civil rights organizations immediately called Haynsworth a racist; one group said he was a "laundered segregationist". George Meany claimed that his record was anti-labor. 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.
Haynsworth was defeated despite no inappropriate behavior. Haynsworth was a Harvard graduate. Haynsworth was also a Southern white male. Haldeman writes in his diaries that it was not Haynsworth's abilities. It was "a combination of reaction against the Fortas matter, plus a strong anti-Southern move, plus pure partisan politics" (Haldeman, The Haldeman Diaries). Haynsworth's nomination was voted down, and he continued to serve elsewhere for many more years.

Nixon was not done trying to nominate a strict constructionist, white Southerner; not a black from the South like Marshall whom the Senate, held by Democrats with Rockefeller GOP help, would support. Nixon then nominated G. Harrold Carswell. Carswell had been nominated by Eisenhower and Nixon and confirmed by the US Senate two separate occasions, including in 1969. Nixon notes in his memoirs, "the ritual charges of "racist" were made in the media and in Congress". Carswell had made the horrible mistake in his past of saying he supported segregation in 1948. This statement was made when the Armed Forces were just being integrated. This twenty two year old statement came back to haunt him, there were questions of his "competence", and his nomination was rejected. This competence was not a problem for the Appeals Court, which somehow gets glossed over due to the political SCOTUS fetish.

It also shows the problem of ever moving leftward that hurts anyone to the right of the current zeitgeist. It also shows the problem of media coverage of left vs. right as Hillary Clinton or Barack Obama can have anti-same sex marriage statements considered no problem since they evolved, but a target on the right can not be considered to have evolved. An interesting throw away fact on Carswell is that it is widely suspected he was gay or at least bisexual. Such a horribly oppressive time Carswell lived in. His closet was full of gay and segregationist skeletons.

Nixon and his team were well aware of the political opposition to the Southern flavor of their nominees. Nixon gave a speech that stressed this Southern problem. While his memoirs deny the anti-Southern animus, his speech reads differently,
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...
Nixon would nominate a good Harvard trained man from Minnesota, Harry Blackmun. Chief Justice Burger was friends with Blackmun and had told Nixon he would keep an eye on him. Blackmun, the third off Burger's list, was confirmed by a vote of 94-0. This was another white, Harvard Law educated law and order type that Nixon nominated, yet he sailed through. All that was different between Haynsworth and Blackmun was home state. Blackmun would move from a moderate conservative to a consistently liberal judge. Read The Brethren for a fantastic inside view of the SCOTUS written with a super liberal bias to it. Woodward writes Burger as an inconsistent idiot, Marshall as super cool, and Blackmun is always being worked on to become more liberal. After writing Roe v. Wade, Blackmun takes the plunge and grows in love with being powerful, citing the case in other cases later in his career with no real connection to Roe.

Think of how often we hear accident of birth to explain privilege or some poor criminal's past to excuse his behavior. Nixon was noticing that these men were simply Southerners, and therefore, not worthy of SCOTUS confirmation by the Eastern Establishment. While the switch of a liberal seat (Fortas) for a conservative was a problem for the left, the main issue became their simple status as Southern gentlemen. Southerners have been few and far between for SCOTUS concerns. Clarence Thomas, a black, Southern conservative, was born a Georgian. He endured his own witch hunt, which when looked in hindsight was simply a political operation with sex as the excuse. The media has remarked in the recent decades about the Southern Strategy, the switch of the Solid South, the South's political effect on national politics and clout. No one ever mentions this. In an odd coincidence, America has seen many firsts since 1970 but no Southern, white men confirmed for the Supreme Court. Carswell and Haynsworth were the last two nominated. As the media loves to trumpet, the doors of discrimination have been knocked down except for cement doors that the left does not want anyone to notice that they have erected.


nikcrit said...

The larger point i gather from your essay-post is: when you get to the size and scale of national political nominations, history and biography can taint from very unfairly broad and unavoidable sources.

The anti-segregationist vogue or whatever that swept both the public and federal political machinations in the early 70s made white, southern-male condidates susspect ----- often, unfairly so. but many of those politicos clung to the vibe and essence, spoken and unspoken, of Southern Strategy tactics, initiated a few years earlier; so to some extent, the karma rub wound up biting back a few years later....

I mean, look at it through another, politically different example: any, say, black democrat is going to be suspect to most of you guys here. Take Corey Booker; he's a black democrat, and is affiliated with many of the large caucuses and causes black pols almost always get swept into ------ yet, he's refreshingly reformed in many ways for those of his pedigree ---- pro-biz, on-the-record with anti-amnesty statements, pro-protectionist, anti-NAFTA, etc. ----- but i'm sure none of that is enough for anyone here to ever pull the lever for him, assuming he was relevant to your locale's politics, etc.

I mean, his earlier 'black-national-pol' affiliations, and thus, taint, is enough to doom him. So goes it for white southern GOPs currently. it's wrong, but it's a universal dilemma of human tendency toward stigmata.

Son of Brock Landers said...

I was more speaking to that era but the weird thing is how there have been none after even nominated.

Booker is an affable, sharp and energetic guy. The Dem operatives I know who have interacted with him speak well of him but they all say he's horribly in the closet because of black homophobia that he correctly feared wouldve killed him politically earlier. Friend thinks he is bound to return in '17 to run for Gov because he'll be the one Dem who won't need to machine to win easily so he can clean up the state and shake out a lot of the dead wood and inefficiency.

Portlander said...

Are there any firsts and unprecedented appointments left? An Asian justice? An openly gay justice? A justice that does not speak English?

Haha. How about justice that is not a US Citizen?

As a resident of DC, he can't vote anyway. As Hillary is wont to say, "What difference does it make?"

OK, ok, a bridge too far. :) Give La Raza 25 more years to work through the funnel and we might be blessed with the first dual-citizen justice. Yippie, wouldn't that be historic!

Toddy Cat said...

It'll be a Tranny. They're hot right now (metaphorically speaking, of course).

peterike said...

How about justice that is not a US Citizen?

Is there any requirement that they be a citizen? If not, I'd bet Obama's next nomination fits this profile.

tteclod said...

A pollster called my home and asked about a Congressional race. I told him that no matter the effectiveness of the nearby city's mayor or his personal politics, so long as he's a Democratic Party candidate, he won't get my vote. Unfortunately for that candidate, he continues to associate with a party that advocates for many things I judge reprehensible. In that regard, Booker is right in line with other Dems.

What you overlook in your response is that the men prohibited from appointment to high office are prohibited based on race and origin alone. Judges are generally non-partisan, even if politically conservative. If that isn't racial and ethnic prejudice, then no such thing exists.