Some 50 years ago, Senate Democrats successfully torpedoed a Supreme Court nomination by discrediting the Republican president’s nominee as too “mediocre” to take a place on the nation’s highest court. Before today’s Republicans try for vengeance by duplicating that strategy with President Biden’s selection, they should look carefully at the dazzling resumes of the dozen black women identified most frequently as comprising the White House “shortlist.” Any attempt to smear these women as lacking in intellectual firepower or judicial competence would only succeed in damaging the GOP and further polarizing the nation at large.
First, the historical precedent: During the first twelve months of his presidency (1969), Richard Nixon made two wildly controversial Supreme Court choices as part of his effort to implement the “Southern Strategy”- aimed at shifting Dixie sentiment toward the revitalized GOP in the states of the former Confederacy. The first appointment, a seasoned Appeals Court judge from South Carolina named Clement Haynsworth, couldn’t be dismissed as a dummy or light-weight – he had graduated from Harvard Law School and held the respect of most of his judicial colleagues. Nevertheless, the lopsided Democratic control of the Senate (with a 57 to 43 margin) allowed them to defeat the Haynsworth nomination by associating some of his “strict constructionist” decisions with an effort to defend segregation.
The next move by the Nixon administration brought a replacement appointment of a more obscure appellate judge with such a brief, flimsy record that the Democrats found it easier to attack his intellect and personality than his rulings from the bench. Concerning Judge G. Harold Carswell, George McGovern of South Dakota memorably proclaimed: “I find his record to be distinguished largely by two qualities: racism and mediocrity.”
To this assault, Republican Roman Hruska of Nebraska provided an ill-considered response that helped to sink the nomination of the little-known jurist he supported. “Even if he were mediocre,” the offended Senator thundered, “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?”
When the Senate finally voted, the designated representative of downtrodden mediocrity lost on a bipartisan basis by 55 to 45 votes, and shortly thereafter resigned his appellate court position in indignation. Giving up on the idea of a Southern nominee, Nixon selected Harry Blackmun of Minnesota, who no one could insult as second-rate. A working-class kid and the son of a shopkeeper, Blackmun won a full scholarship to Harvard (where he graduated summa cum laude, “with highest honors”) before proceeding to Harvard Law. After his unanimous confirmation (yes, unanimous, 94-0), he went on to 24 years on the nation’s highest court, which included his writing of the fateful Roe v. Wade decision in 1973.
Judge Ketanji Brown Jackson of the US Court of Appeals for the District of Columbia won’t be confirmed in a unanimous vote, but she should win more than a sprinkling of Republican support. An angry, pointless confirmation fight would hurt the GOP as well as the country. No one doubts that the president’s nominee can prevail on Democratic votes alone, with Vice President Harris as the tie-breaker, if necessary; Senators Manchin and Sinema, important dissenters on other issues, have both loyally supported all 52 of the federal judges Biden has named so far.
To attack this latest appointment as an indictment of “affirmative racial discrimination” as Senator Roger Wicker (R-Mississippi) did before the president even made his choice, is an especially bad idea, nor does it make sense to indict a new justice as “the beneficiary of this sort of quota”.
Jackson holds the same appellate seat long occupied by Attorney General Merrick Garland, and she clerked for the retiring Justice Stephen Breyer. A national oratory champion in high school, she studied government at Harvard (graduating magna cum laude) and then became a supervising editor of the Harvard Law Review before graduating from the law school. Her legal experience includes work as a public defender, and she won election six years ago to the Harvard Board of Overseers – the august body that has governed the nation’s most venerable university since 1650. The suggestion that she has achieved all of this due to preferential treatment based on race is both laughable and insulting.
In addition to Biden’s ultimate choice, consider the other most frequently mentioned prospects. Justice Leondra Kruger, now 45, of the California Supreme Court, was the runner up finalist according to most reports. Justice Kruger became the youngest jurist ever elevated to the California Supreme Court when nominated in 2014. She graduated from Harvard magna cum laude, then studied at Yale Law School where she won election as the first black woman to serve as editor-in-chief of the Yale Law Journal. After clerking for Supreme Court Justice John Paul Stevens, she worked in the Obama Justice Department, winning the Attorney General’s Award for Exceptional Service, the Department’s highest award for employee performance, in both 2013 and 2014. As Deputy Solicitor General of the United States, she represented the Federal Government in arguing 12 cases before the Supreme Court.
Among other names prominently featured in speculation by court watchers, at least three more of the candidates are also graduates of Yale Law School – Judges Eunice Lee, Holly Thomas, and Candace Jackson-Akiwumi. I emphasize educational credentials here because the actual job of a Supreme Court Justice resembles that of a university professor far more closely than it does a legislator, business executive, or even a trial judge. You aren’t making administrative decisions, devising new policies, or presiding over a trial; on the nation’s highest bench the task is to evaluate ideas and advance arguments while weighing the meaning of precedent, statutory language, and Constitutional text.
In this regard, racial representation might help or detract from the court’s public acceptance, prestige, and credibility, but should play a scant role in qualifications for the job of Associate Justice. An understanding of the job the new judge will actually do also undermines the persistent arguments that two law schools – Yale and Harvard – are perpetually over-represented on the Supreme bench. That complaint would be the equivalent of suggesting that athletes who played football at Alabama or Michigan disproportionately turn up in the NFL.
When white male candidates with impeccable academic and professional credentials win appointment to the Supreme Court of the United States, no critic could plausibly contend that “while privilege” alone enabled him to claim this exalted position. By the same token, it’s unfair to suggest that any of the comparably qualified Biden prospects has advanced to the top of the legal profession solely as beneficiaries of affirmative action.
The “Carswell Dictum,” that genuine mediocrities need not apply, must relate equally to aspirants of every race and all ethnicities. As yet, the Biden administration has given no indication that they mean to abandon that proposition.
And as to Judge G. Harold Carswell, what became of him?
Within weeks of the Senate voting down his Supreme Court nomination in 1970, he resigned from the bench to announce his candidacy for the Republican nomination for the United States Senate from Florida. He lost the primary in a crushing, nearly two-to-one landslide, failing to win even the all-important mediocrity vote. Six years later, he made illicit advances to an undercover cop in a Tallahassee men’s room and found himself convicted on a charge of battery. Three years after that, he suffered an attack and a serious beating when he invited a stranger to his Atlanta hotel room. These incidents led the 1994 book Queers in History to name Carswell as the first homosexual or bisexual to be nominated to the Supreme Court of the United States – hardly the distinction he had hoped to achieve.