A Not So Simple Issue

"This is not a fight against the President," said Senator Edward Brooke last week. "Our job in the Senate is not one of either going along with or going against the President on a court appointment. It is simply one of approving or disapproving the nominee who is sent to us."

The way the Massachusetts Republican explained it, the matter sounded simple enough. Of course it was nothing of the sort. In the last week of maneuvering and infighting before a showdown vote, the battle over confirmation of George Harrold Carswell as a Supreme Court Justice proved to be a wrenching, almost traumatic experience for the executive and legislative branches of the Government. It invoked conscience, strained party loyalties and gave rise to debate on the constitutional role of President and Congress.

Brooke's statement was in response to a major Administration counterattack on Carswell's foes. In a letter to Republican Senator William Saxbe of Ohio, Richard Nixon denounced their opposition to his presidential prerogatives. "If the Senate attempts to substitute its judgment as to who should be appointed," he declared, "the traditional constitutional balance is in jeopardy" (see box). With that tactic, he thus made the issue an even bigger test of wills, and of his own prestige, than it had been before.

Crank Up. The fact that the Administration had so much at stake had already deprived the nomination's opponents of the backing of the two top Republican leaders, Minority Leader Hugh Scott of Pennsylvania and Minority Whip Robert Griffin of Michigan, who had been instrumental in defeating Clement Haynsworth. Without that leadership, the few remaining G.O.P. liberals had to scramble among themselves to find an anti-Carswell standardbearer. The result was the emergence of Brooke, the Senate's lone black, as an effective leader of the liberal bloc.

When jockeying over the nomination began during the winter, there had seemed little chance of arousing much G.O.P. opposition to add to the 40 Democrats expected to be against Carswell. Brooke started to woo such Republicans as Oregon's Mark Hatfield and Robert Packwood, Maryland's Charles Mathias, and Pennsylvania's Richard Schweiker. He never relented. On Feb. 25, he made a floor speech opposing Carswell's elevation. It was a turning point; it got anti-Administration machinery moving.

Indiana Democrat Birch Bayh, who had led the opposition to Haynsworth but held back on Carswell in fear of leading a losing battle, was then spurred to action. Says a Bayh aide: "The boss was terribly moved by Brooke's speech.

After it was over, he came charging into the office and said, 'Crank up; we're going to go.' "

Doing a Favor. Brooke's new eminence, especially on an issue laden with racial significance, was a pleasant surprise to liberals who had viewed his first three years in the Senate with disappointment. Though the nation's major domestic problem throughout the period was its searing racial turmoil, Brooke had been reluctant to act in the Senate as a representative of all U.S. blacks. Last week he denied assuming any leadership role, protesting that "I'm just a freshman Senator," but he could not help adding with a grin: "I think we will be doing the President a favor if Carswell is denied the appointment."

Though it was questionable whether further argument would change many votes, the count looked so tight at week's end that there was a spate of last-minute maneuvers. A group of 205 former Supreme Court law clerks, including Dean Acheson, urged Carswell's defeat because of his "mediocrity." In a somewhat ludicrous fumble, California Democrat Alan Cranston charged that a black Government attorney had been forced to write a letter backing Carswell. But Cranston failed to check the story with the lawyer, Charles F. Wilson, who later denied it.

Most of the momentum came from Carswell's supporters, however. Besides Nixon's statement, the White House released endorsements of the nominee by eleven of his fellow judges--a measure of questionable value, considering that another seven of Carswell's colleagues refused to back him. In an attempt to head off the vote to recommit the nomination to the Judiciary Committee, an action that would ordinarily mean the death of the Carswell nomination, a majority of the committee signed a letter saying that "no useful purpose" would be served by recommittal--and implying that they would simply bounce the nomination back to the full Senate. No matter what the outcome, it was obvious that the long fight had not only consumed much of the time and energy of the Senate but had also eaten into the store of good will between it and the President.

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