Thwart the Court

It may yet be early to foresee how the current Kavanaugh confirmation hearings will turn out. Nevertheless, Seriatimback Saturday takes a look at Supreme Court nominees who came up just a little bit short. In my own lifetime, anyway.

I wasn't drawing political cartoons in 1968 when President Lyndon Johnson tapped Associate Justice Abe Fortas to be Chief Justice upon the retirement of Earl Warren. Johnson had faced no significant opposition when he named Fortas to the Supreme Court in 1965, but by the time he announced his decision to elevate Fortas to Chief Justice, Johnson was politically weakened by Vietnam War weariness and had already announced that he would not run for reelection.

"Hear Ye, Hear Ye!" by Karl Hubenthal in Los Angeles Herald-Examiner,  July, 1968

A coalition of conservative Republicans and southern Democrats filibustered the Fortas nomination, initially claiming the grounds that Johnson was a lame duck who shouldn't be deciding the direction of the Supreme Court for years to follow. More to the point was Fortas's close friendship with LBJ — he'd be accurately described as a crony of the President — and his and the Warren Court's liberal record.

"Senate Judiciary Committee Members..." by Pat Oliphant in Denver Post, July, 1968

Senator Strom Thurmond (R-SC) attacked Fortas for his having voted with the Court's majority rulings in favor of free speech rights in pornography cases. In closed session of the Senate, Thurmond played a number of the porn films which had been at issue in those cases, even entering them into the official Senate record. Thurmond's tactic was widely ridiculed, but proved effective in blocking Fortas's nomination (and along with it, LBJ's nomination of Texas Congressman Homer Thornberry to take the seat Fortas would have vacated. Perhaps Clyde Peterson, Herc Ficklen, or some other Texan drew a cartoon or two about Thornberry's nomination, but I haven't seen one).

Richard Nixon got to name Warren Burger as Chief Justice in Fortas's stead, and every Chief Justice since has been a Republican nominee. Fortas would soon be compelled to resign from the Court over his financial association with a Wall Street financier in trouble for securities violations, opening another seat for Nixon to fill.

As a critical element of his "Southern Strategy," Richard Nixon came into office having promised Strom Thurmond that he would name a conservative southerner to the Supreme Court. To fulfill his promise he nominated Clement Haynsworth Jr., a South Carolina judge who had a record of foot-dragging on racial integration and of opposition to labor unions.

Support and opposition to the Haynsworth nomination were both bipartisan. Southern Democrats including Judiciary Committee Chairman Eastwood supported him, while liberal Republicans were troubled by accusations that Judge Haynsworth had ruled on matters in which he had a financial interest, and had bought stock in the Brunswick Corporation while hearing a case in which it was involved.

"Aw, What're a Few Conflict of Interest Stock Deals?" by Bill Sanders in Milwaukee Journal, October 11, 1969

A tangential relationship with Bobby Baker, a Senate staffer convicted of larceny and tax evasion in 1967, proved to be the straw that broke the camel's back. Following the Senate's 45-55 vote to reject Haynsworth, Nixon's next nominee was a Tallahassee, Florida judge named G. Harrold Carswell.

Civil rights leaders were skeptical of his repudiation of a 1948 racist speech he had given, yet Democrats were at first wary of mounting opposition to a second southern judge. Sen. Edward Brooke (R-MA), the lone African-American in the Senate, led opposition to Carswell.

The Senate Judiciary Committee approved his nomination 13 to 4 in spite of Carswell's spectacularly mediocre judicial record. Seven out of 24 of his rulings had been overturned on appeal. Florida State University law school dean Joshua Morse claimed, "I cannot think of a single thing of Judge Carswell's that I am familiar with." Harvard Law Dean Derek Bok said, "The public record of Judge Carswell's career and accomplishments clearly does not place him within even an ample list of the nation's more distinguished jurists."

"How Can You Ask Us to Support a Guy..." by Tom Curtis in Milwaukee Sentinel, March 18, 1970

Speaking in Carswell's defense, Sen. Roman Hruska (R-NE) famously replied, "So what if he is mediocre?  There are a lot of mediocre judges and people and lawyers.  They are entitled to a little representation, aren’t they?  We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there."

"Holmes v. Carswell" by Pat Oliphant in Denver Post, March 25, 1970

Nixon pulled out all the stops to convince Republicans that they had a duty to confirm Carswell, but in the end, 51 Republicans and Democrats voted down the nomination. Grousing that Senators would never confirm any southern conservative, Nixon named Minnesotan Harry Blackmun as his third choice for Oliver Wendell Holmes' seat on the high court. (Blackmun would author the majority opinion in Roe v. Wade, and conservatives would resolve never to nominate any but the most reliably right-wing justices ever again.)

I have no editorial cartoons to accompany this next item (nobody draws cartoons about the dog that didn't bark), but this is a good moment to point out that Jimmy Carter remains the only president since Andrew Johnson not to name a single justice to the Supreme Court. Even James Garfield, president for only six months and on his deathbed for almost half of that time, got to name Stanley Matthews to the Court.

We now come to appointments I had the opportunity to draw about myself, so I don't have to continue stealing other cartoonists' work. In 1987, Ronald Reagan raised liberals' hackles by appointing former Solicitor General Robert Bork to the seat vacated by Justice Lewis Powell. Bork had been the Nixon underling who fired Watergate Special Prosecutor Archibald Cox when his superiors, Attorney General Elliot Richardson and Deputy A.G. William Ruckelshaus, resigned rather than carry out Nixon's order. He was also outspoken on his goal of overturning the civil rights and privacy rulings of the Warren and Burger courts.

After the Senate voted 42-58 to reject Bork, Reagan's next choice was Douglas Ginsburg (no relation to RBG), a 41-year-old whom he had named to the U.S. Court of Appeals for the District of Columbia a year earlier.

The Ginsburg nomination quickly collapsed after news broke of his marijuana use in the 1960s and 70s as a student and as an assistant professor at Harvard. Ginsburg withdrew his name from consideration after only ten days in the national spotlight, and the spectre of Reefer Madness breaking out in judges' chambers was averted.

George W. Bush had two Supreme Court vacancies to fill in the summer of 2005: longtime Bush friend Harriet Miers led the search for a successor to Sandra Day O'Connor, for which she recommended John Roberts. But when Chief Justice William Rehnquist died of thyroid cancer, Bush decided to nominate Roberts to replace Rehnquist and Miers to succeed O'Connor.

Democrats and Republicans alike found her answers to Senators' questions lacking, contradictory, and even insulting. Having no experience as a judge, elected official, or academic, her record was even thinner than Carswell's.

With Republicans in the majority, it was their reservations about her commitment to conservative orthodoxy that would doom her appointment. Sen. Jon Kyl (R-AZ) saw to it that every one of her verbal missteps, especially statements that suggested that there was an outside glimmer of a ghost of a chance that she might perhaps uphold Roe v. Wade, made it into the press. Miers withdrew from Senate consideration before a vote could be taken.

Finally, we come to Barack Obama's foiled appointment of Merrick Garland after the sudden death of Justice Antonin Scalia. Whereas Republicans this year have expressed a sense of urgency to fill the Anthony Kennedy vacancy, Senate Majority Leader Mitch McConnell (R-KY) found no necessity to have nine justices on the court when its fall term was to begin nine months later, on the grounds that there was to be a presidential election a month after that and the inauguration of a new president after yet another two months.

Unlike Abe Fortas, Merrick Garland never even got a hearing.

Speaking of lame duck appointments, here's another bit of historical Supreme Court trivia for you. Having been defeated his reelection campaign in 1840, President Martin Van Buren nominated Peter Vivian Daniel to the Court one week before leaving office in 1841. The U.S. Senate confirmed Daniel's appointment in five days.