Carswell in Trouble

Only two weeks ago, the confirmation of Judge G. Harrold Carswell to fill the ninth seat on the U.S. Supreme Court looked to be as sure a thing as bean soup on the Senate dining room's daily menu. Between Southern conservatives backing a sympathetic Floridian and Republican liberals hesitant to buck President Nixon a second time after defeat of the Haynsworth nomination in November, the White House forces counted 55 pro-Carswell votes. Last week, however, three factors coalesced to place the Carswell nomination in sudden and serious jeopardy.

Carswell's nonornamental record on the Fifth Circuit Court of Appeals had not damaged him deeply before. Indeed, he found his lack of brilliance defended on the grounds that it was time to have a man of modest intellectual attainment on the court. But now, as law-school deans and bar associations continued to weigh in against Carswell, the ludicrous core of that argument was beginning to show. Further, two of Carswell's more eminent Fifth Circuit colleagues also hurt him. Retired Chief Judge Elbert Tuttle withdrew an earlier endorsement; Judge John Minor Wisdom refused to join in recommending Carswell to the Senate.

Parliamentary Gimmick. Carswell also took a beating when it came out that he had suffered what was at best an odd lapse of memory in testifying before the Senate Judiciary Committee. Senator Roman Hruska of Nebraska asked him in January if he had been an incorporator of the Capital City Country Club in Tallahassee (in 1956, Capital City became a private club to escape a desegregation order). "No, sir," Carswell replied. It turned out last week that only the night before his testimony, Carswell had admitted his incorporator's role to two American Bar Association representatives.

What compromised Carswell's chances most, though, was a parliamentary gimmick thought up last week by his Senate opponents. Senator Birch Bayh of Indiana, a Democrat who led the fight against Clement Haynsworth, introduced a motion to send the Carswell nomination back to the Judiciary Committee--ostensibly for further hearings. For practical purposes, however, sending a nominee's name back to committee is a shelving device that permits the nomination to die quietly.

The recommittal tactic would let off the hook those Senators who are increasingly unhappy about Carswell, since they could explain that they merely wished to have new questions looked into. Only four Republicans have publicly announced that they would vote against Carswell on the Senate floor, but burial in committee now looks attractive to a dozen G.O.P. Senators, maybe as many as 15. Democrat William Fulbright of Arkansas, a onetime law teacher who voted for Haynsworth, joined the defectors from Carswell while protesting that he does not concur in "the lack of enthusiasm in some circles for the appointment of a Southern judge."

If about a dozen Republicans join 40 Democrats in voting for recommittal next week, the anti-Carswell forces will muster a narrow majority. They need 51 votes if all Senators are present. If they lose, the Senate will then go ahead to vote on the actual nomination--which might well carry once Carswell's opponents showed weakness on recommittal. So far, the White House has indulged in none of the pressure tactics that backfired in the Haynsworth case. Some vigorous advocacy might retrieve enough Republicans to save the nomination. Meanwhile, for the first time, Administration operatives are wearing worried frowns about Carswell.

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