A Seat for Mediocrity?

As the Senate last week began its long-awaited floor debate on President Nixon's latest choice for the Supreme Court, opponents and at least a few supporters of the nominee seemed agreed on one point: Judge G. Harrold Carswell is a mediocre choice. Far from denying it, Carswell's advocates almost claimed mediocrity as his prime qualification.

"Does it not seem that we have had enough of those upsidedown, corkscrew thinkers?" Louisiana's Russell Long asked. "Would it not appear that it might be well to take a B student or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting a 100% increase in crime in this country?" After Roman Hruska finished with it, the argument even had a certain logic--if somewhat upside down and corkscrewed. "There are a lot of mediocre judges and people and lawyers," said the Nebraska Republican. "They are entitled to a little representation, aren't they? We can't have all Brandeises, Frankfurters and Cardozos."

Reserved Seat. With talk like that from his supporters, there was scarcely anything of substance that Carswell's opponents could add. There are, indeed, many mediocre people in the country, and perhaps they do feel under-represented on the court--though certainly not in the Congress. Before Abe Fortas' departure, there had been a "Jewish seat" on the court since Woodrow Wilson appointed Louis Brandeis in 1916. Under the Hruska doctrine, there might henceforth be a place reserved for mediocrities. On reflection, even Hmska, Carswell's chief sponsor in the Senate, realized that his reasoning was more at home in Alice in Wonderland than in the U.S. Senate. He let critics have the floor for most of the week.

He could afford to do so. While few Senators can find much to rave about in Carswell's record, fewer still can find enough to deny him their vote. Liberal Republicans who bucked Nixon on the Safeguard anti-ballistic missile system and the nomination of Clement Haynsworth are loath to buck him again and must be shown something of a grave nature to deny him Carswell. Subjective criticism of his judicial talents, a 22-year-old racist speech, and other evidence of a segregationist past are considered insufficient reason to reverse the Senate tradition that a President is entitled to choose whom he wishes (see LAW). "How far can you go in not supporting the Administration?" inquired Oregon Republican Mark Hatfield. "How many times can you vote against the ABM and Haynsworth and still be in the ball game?" Though opposition to Carswell has grown in the Senate, Republican leaders and Southern Democrats still count 55 solid yes votes--a figure that no one on the other side is prone to dispute.

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