A Southern Justice

Richard Nixon proudly unveiled his new Chief Justice, Warren Burger, in an East Room spectacular last May attended by live television cameras and the highest ranks of his Administration. There was no such ceremonial fuss last week as he named his first Associate Justice to the Supreme Court. In the press room at Laguna Beach, 17 miles from the western White House at San Clemente, Press Secretary Ronald Ziegler almost perfunctorily announced that Nixon had appointed South Carolina's Clement Furman Haynsworth, chief judge of the Fourth Circuit of the U.S. Court of Appeals, to fill the seat vacated last spring by Justice Abe Fortas.

To Nixon and Attorney General John Mitchell, who supervised the Administration's search for a new Justice, Haynsworth has ideal credentials. It is true that he would be a WASP filling a seat that has been traditionally Jewish since 1916, but Nixon never promised to abide by that custom. Privately, the President says that he does not consider that there is a Jewish, Catholic or Negro seat on the court. Haynsworth is a sitting federal judge who, at 56, can expect at least ten or 15 years on the Supreme Court bench. His decisions have been moderate to conservative on civil rights, and occasionally liberal in cases involving the rights of criminals. But above all, Haynsworth is a strict constructionist who subscribes to Nixon's dictum that "it is the job of the courts to interpret the law, not make the law." A desire for social innovation has seldom manifested itself in his legal judgments, and he seems an apt choice to carry out what Nixon envisions as a redefinition of the Supreme Court's role, steering it away from the activism of the Earl Warren court.

Preparing for 1972. Some critics thought that the choice was entirely too ideal from Nixon's political point of view--which may account for the absence of panoply at the appointment. Haynsworth will be the first Southern addition to the Supreme Court since the civil rights upheaval began 15 years ago. Whatever the judge's qualifications, his appointment serves as partial payment by the Administration for the efforts of South Carolina's Strom Thurmond and others, who held five Southern and Border states for the G.O.P. against George Wallace's third-party depredations. Moreover, the choice fits neatly into Nixon's design for strengthening the Republicans in the South for the 1970 and 1972 elections.

Several weeks ago, Thurmond publicly endorsed his old friend Donald Russell, a federal district court judge and former Senator from South Carolina, for the Fortas seat. The endorsement may well have been sincere, but some suspected legerdemain. Anyone known as "Thurmond's man" would be a clear embarrassment to Nixon. By backing Russell, Thurmond in effect cleared the air for another South Carolinian, Haynsworth.

As it was, reaction to the Haynsworth appointment was not as outraged as might have been expected. The N.A.A.C.P.'s Roy Wilkins promised to fight Senate confirmation, and was swiftly joined by the A.F.L.-C.I.O.'s George Meany. Paul Jennings, president of the International Union of Electrical, Radio and Machine Workers, accused Haynsworth of antilabor positions in two decisions involving the rights of Southern textile-mill workers to organize for collective bargaining. Should labor and civil rights groups succeed in blocking Haynsworth's appointment in the Senate --an unlikely possibility--the coalition would be reminiscent of the A.F.L.-C.I.O. and N.A.A.C.P. campaign that kept Judge John J. Parker from the Court in 1930.

Nixonian Court. Legal opinion was divided on the auguries to be found in Haynsworth's rulings; the caution stemmed in part from the fact that the Supreme Court historically has had a way of turning conservatives into liberals, and vice versa. Yale Law School Professor Fred Rodell dismissed Haynsworth with the remark that he is a "mediocre slob," but one liberal federal judge in the South found the appointment encouraging. "The conservatives are going to be startled to death by that man," he said. "On labor matters he's quite conservative. But on civil liberties--search and seizure, arrest, right to counsel--I think he's as advanced as anyone now on the Supreme Court."

Haynsworth's record on civil rights suggests an inclination to adhere to the Supreme Court's decisions, but not to try to break any new ground. The impression is that of a reluctant and a somewhat mechanical interpreter of the high court's direction. In Green v. County School Board of New Kent County last year, Haynsworth wrote a majority opinion upholding "freedom of choice" plans for school integration--plans that are a characteristic Southern fallback position intended to circumvent Supreme Court decisions ordering desegregation. Haynsworth's essentially negative opinion was that it is enough for the court to declare segregation illegal without acting affirmatively to end it.

Thus, in Griffin v. County School Board of Prince Edward County in 1963, Haynsworth also voted with the 2-1 majority to approve the closing of all the county's schools as one way to avoid integrating them. "When there is a total cessation of operations of an independent school system, there is no denial of equal protection of the laws," Haynsworth wrote. Yet from 1959, when the public schools closed, until 1964, when they reopened, Prince Edward's 1,700 Negro children went virtually without education, while the whites opened a "private" system for their own offspring. In both Green and Griffin, Haynsworth was later overturned by Warren's Supreme Court.

It is unclear how a Nixonian court, with the additions of Burger and Haynsworth, would have decided those cases. Already Nixon has weighted the court toward a moderate conservatism; for the first time since 1956 the activist, liberal coalition led by Justices Black, Douglas, Brennan and Marshall is a minority. Teaming with the centrist group of Justices Harlan, Stewart and White, Burger and Haynsworth probably will have the effect of reversing or at least slowing down the liberal impetus of the court. The actuarial likelihood is that before he leaves office, the President will be able to remake the court further to fit his image of it. Hugo Black is 83. William O. Douglas, 70, has had an electronic pacemaker implanted in his heart, and Harlan, 70, has failing eyesight.

This file is automatically generated by a robot program, so reader's discretion is required.