University of Virginia Library

Nix On Carswell

Shortly after President Nixon assumed
office in the White House, he made a
statement concerning his future nominations
of men to the Supreme Court. He noted at
that time that he would nominate distinguished
jurists on the level of past justices like
Brandeis, Cardozo, Holmes, and Frankfurter.

Out of all of the country's lawyers and
judges President Nixon could find no men to
match Clement Haynsworth and G. Harrold
Carswell. These men, according to Mr. Nixon,
are all on the same level as previous great
justices of the Court. The Senate refused to
accept this argument for Judge Haynsworth
earlier in the year, and they certainly should
refuse it again for Judge Carswell.

Proponents of the controversial Floridian
are now arguing that mediocrity should
become one of the criteria for a justice on the
Supreme Court. Just this week Senator
Russell B. Long of Louisiana said that the
Court could use a straightforward "B student
or C student...instead of another A student...that
kind of reasoning and those kinds of
decisions are destroying our country...A judge
doesn't have to have all that brilliance to
satisfy this senator."

This argument for mediocrity is truly one
of the most unusual and even fantastic ploys
to be used to get someone appointed to any
position of power. Suppose the University
School of Medicine wanted to fill an empty
spot in the surgery department. Just because
the other surgeons of that department might
be brilliant and distinguished, would it be
reasonable to think that the new man
appointed would necessarily have to be
mediocre to "balance" the department?

One might counter that in almost every
area of government are men that could be
described as mediocre. Of course, this is true,
but should the President search hill and dale
for candidates who have more than their share
of this "quality"? We think not.

During his campaign for the presidency,
Mr. Nixon observed that if elected he would
attempt to place men on the Court who
would have a balancing or countering effect
on recent Court decisions. Specifically, he was
disturbed about the pace the judicial revolution
for human rights and the broadening of
the rights of criminal suspects.

To "balance" the Court with distinguished
men of a different judicial mind would have
been one thing, but to place of such mediocre
caliber people on such an important branch of
government would be quite another. Mr.
Nixon in this affair has been false to his own
principles by which he was to guide himself in
selection and to the people of the United
States to whom he promised distinguished
nominees.

Aside from Judge Carswell's controversial
speech given in 1948 for white supremacy and
from his involvement in the racially discriminating
Tallahassee Capitol Country Club, his
judicial record has been far from impressive.
Frank Graham of the New York Times
described his opinions rendered while serving
on the Fifth U.S. Circuit Court of Appeals as
about as readable as "plumbers manuals."

Legal scholars from noted law schools all
over the country recently came out strongly
against the confirmation of Judge Carswell.
Alpheus T. Mason, who is one of the most
distinguished scholars of constitutional law in
the nation and who currently teaches in the
government department of the University,
said that he could not remember a more
mediocre candidate for a position on the
Court in this century.

Mr. Mason found it hard to believe that it
is wise to actively seek out such undistinguished
candidates for such distinguished
positions, and certainly compared to the
giants Holmes Brandeis, and Frankfurter,
Carswell stands as a mere pygmy.

President Nixon could have found men to
balance the Court who did have high judicial
qualifications. He could have even gone back
to Florida to choose Stephen O'Connell, a
former justice on the Florida Supreme Court
and now President of the University of
Florida, who is described as a man more in
line with the President's judicial beliefs.
Instead Mr. Nixon has chosen a man with so
few qualifications that his proponents are
having to use the banner of mediocrity in an
attempt to have him confirmed.

Mr. Nixon's nomination of Judge Carswell
is an affront to the Supreme Court and to the
nation. He should not be confirmed.