Commentary Magazine


Re: Rosen Was Right

As Jennifer has pointed out, Sonya Sotomayor has been less than impressive in her testimony before the Senate Judiciary Committee. No Frankfurter, Brandeis, or Cardozo she.

For those of us of a certain age, it’s hard not to be reminded of G. Harrold Carswell. When Abe Fortas was forced to resign from the Supreme Court because of conflicts of interest in 1969, Richard Nixon nominated a distinguished member of the 4th Circuit Court of Appeals, Clement Haynsworth of South Carolina, who had been chief judge on that circuit since 1964. A major fight erupted in the Senate — a precursor of so many to come — over his nomination. He was accused of having “unacceptable” opinions on civil rights and labor issues, although both accusations were dubious at best. He was also accused of having conflicts of interest, owning minor amounts of stock in corporations with an interest in cases before him. In the end, Haynsworth, a good and worthy man with a first-rate legal mind, fell victim to politics, his nomination rejected by the Senate 55-45, the first rejection of a Supreme Court nominee in forty years. (Interestingly, 38 Democrats and 17 Republicans voted against him while 19 Democrats and 26 Republicans voted for him, a split almost unthinkable today.)

Nixon, furious and determined to have a strict-constructionist Southerner on the court, then nominated Carswell, who was from Florida and had been a federal-district judge until he recent elevation to the 5th Circuit. Again, the opposition was fierce, especially from the burgeoning feminist movement (Betty Friedan testified at the Senate hearings). But the main objection to Carswell was that he had been so undistinguished as a judge, with a very high (58 percent) reversal rate.

Fatally, Roman Hruska, Republican Senator from Nebraska and not the sharpest knife in the Senate drawer himself, leapt to Carswell’s defense, saying, “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 Frankfurters, Brandeises, and Cardozos.”

In the end, Carswell also went down to defeat, 51-45. Nixon, not daring to risk three defeats in a row, nominated Harry Blackmun who was confirmed 94-0 and went on to write the majority opinion in Roe v. Wade, the most controversial decision the court has handed down in forty years. Carswell, meanwhile, resigned from the 5th Circuit and tried to exploit his sudden fame by running for the Senate. He was clobbered in the 1970 Florida Republican primary. Six years later, he was convicted of battery after making advances to an undercover policeman in a men’s room and retired from public life.