The Seventh Crisis of Richard Nixon

THE enormity of the defeat was shattering enough. At a time when a confluence of pressures was already upon him, Richard Nixon experienced the most serious reversal of his young presidency with the Senate's surprise rejection of his second nomination to the Supreme Court. The setback was a sharp blow to the President's national prestige, especially since he had only a week before raised the Senate vote to the level of a test of wills by denouncing senatorial opposition to his presidential prerogatives. The Senate's action at least called into question the viability of his Administration's so-called Southern strategy, and it raised serious doubts about the usefulness of his Attorney General, the architect of that strategy and the man who has twice recommended losers to the President. Moreover, the defeat showed that Nixon's White House, far from being the dust-free, efficient machine that so many had expected it to be, is not only increasingly embattled but in many ways remarkably prone to malfunction.

Still, the President could have absorbed the blow quietly, picked a more suitable candidate for his third try at the court and hoped that the affair would eventually blow over. Instead, displaying signs of the zest for political roughhousing that was his hallmark in the 1940s and '50s, Nixon decided to slug it out with the Senate. The conflict that he thus launched could have greater impact on his Administration --and on the country--than the Senate's rejection of Clement Haynsworth Jr. and George Harrold Carswell.

Twenty-seven hours after the vote on Carswell last week, Nixon faced reporters in the White House press briefing room. Beside him was Attorney General John Mitchell, his presence apparently an indication of Nixon's continued trust in him. The President's jaw was taut. His eyes were angry, his words clipped. "I have reluctantly concluded," he declared, "that it is not possible to get confirmation for a judge on the Supreme Court of any man who believes in the strict construction of the Constitution, as I do, if he happens to come from the South." He accused his opponents not only of regional prejudice, but of "hypocrisy" and of subjecting Haynsworth and Carswell to "vicious assaults on their intelligence, on their honesty." He said that he would be forced to nominate a judicial conservative from outside the South, thus denying that section of the nation its just representation. Later, in a written statement, he gave Southerners his "assurance that the day will come when men like Judges Carswell and Haynsworth can and will sit on the high court."

The implication of political retribution in this year's congressional election, the playing on the South's latent persecution complex, the conversion of a dispute over the qualifications of two individuals into a confrontation between the Executive and Legislative branches, the harshness of the President's tone --all these were the ingredients of a potentially historic breach. If the President persists in his course, the schism could rival Woodrow Wilson's deadlock with the "little band of willful men" in the Senate who opposed U.S. participation in the League of Nations. It is also reminiscent of F.D.R.'s campaigning against Senators who had opposed his plan to pack the Supreme Court with Justices friendly to New Deal legislation.

The current fight is a clear departure --and could become an enduring one --from Nixon's lowered-voice policy. It raises the pitch of political debate and tends to divide the nation, which he has vowed to "unite" and lead "forward together." Implicit in the conflict over Haynsworth and Carswell were factors of race and class. To many, the Supreme Court since the mid-1950s has become a symbol of disconcerting social change. The court has been both heavily attacked and stoutly defended; another prolonged controversy could further damage its prestige.

The new bitterness could also affect Nixon's policies on other issues. After a period of relatively good fortune and success in dealing with both a Democratic Congress and the general public, his problems have begun to accumulate rapidly. With the Senate battle, in fact, Nixon could be headed toward a sequel to his 1962 memoirs, Six Crises. The continued toll of inflation on the voter is earning him bad marks. At the same time, the fear of recession is prevalent, and it was not assuaged by last week's announcement that in March the unemployment rate rose to 4.4%, the highest since Nixon took office. Labor turmoil in eleven major industries threatens the country's stability. The conflict over school integration is growing worse rather than better, partly because of the Administration's ambivalence about how integration should be enforced. Despite Nixon's election promise to conduct a "war" on it, crime continues"to increase inexorably.

In foreign affairs, new fighting in Cambodia threatens an expansion of the war--and at home, dissent about the war is blooming once again with the spring. The Senate last week approved, 72 to 6, a resolution calling for a Soviet-American freeze on deployment of both offensive and defensive strategic nuclear weapons. As the U.S. resumes arms negotiations with the Russians, the Administration wants a free hand in the bargaining rather than backseat driving from Capitol Hill. And as if all this were not bothersome enough, a new Louis Harris poll, taken just before the Carswell rejection, discloses this week that Nixon's popularity rating has dropped to 52%--one of the lowest in his presidency. Harris reports that regional breakdowns indicate that Nixon's Southern strategy has proved popular in Border and Deep South states, but is costing him support in the industrial Northeast and the Midwest.

What Nixon needs now is Congress's cooperation, especially on his proposed new budget. His frugal spending plans have been jarred by hastily prepared pay raises for federal employees that resulted from the Post Office strike. Yet his attack on the Senate last week produced hostility that he can ill afford. The President's accusations, after all, hit not merely the 51 Senators who voted against Carswell. In the vote on Haynsworth and in the two tests on Carswell, a total of 61 Senators opposed the Administration.

Predictably, Nixon's statement caused a furor. It was in no way diminished when Spiro Agnew followed up on a CBS interview with an accusation that the Senate had allowed itself to be taken in by "the worst snow job of any legislative body in history." More than two dozen Senators signed a letter charging that the President had "completely mistaken" the Senate's action and pledging that they would support a Southerner of Nixon's philosophical persuasion if he met "the high legal, judicial and ethical standards which we believe are required." Tennessee Democrat Albert Gore introduced a resolution accusing Nixon of an "assault on the integrity of the Senate." Agnew's riposte was that Gore was "trying to crawl out of a difficult situation."

Even some Republicans who had stood with the Administration were discomfited. James Pearson of Kansas, who voted for both nominees, said: "I do not recall a single discussion or comment, either public or private, by a single Senator, which would warrant the President's conclusion." Minority Leader Hugh Scott was privately furious at the Administration's handling of the case. Publicly, he said: "The Senate is anxious to support the President. I stand ready to help muster that support and urge the nomination of an individual with impeccable credentials."

That the Administration could not persuade a majority of Senators of the qualifications of either Haynsworth or Carswell was the nub of the entire fight. Unquestionably, there was some truth to the argument that a number of current and past Justices were no jewels of judicial wisdom. Doubtless, some Democrats were glad to embarrass the Administration and would have behaved differently toward men of similar caliber who were nominated by a Democratic President. Certainly the fact that both judges are Southern conservatives evoked opposition from blacks, liberal intellectuals and trade unionists, inducing some Senators to be more skeptical than they otherwise would have been. Yet Northern liberals by themselves did not have the votes to defeat Nixon's selections. In the 51-to-45 tally against Carswell, decisive votes came from Southerners, Border-state Senators and middle-of-the-road Republicans. A total of 13 Republicans voted against Carswell, 17 against Haynsworth. After last November's rejection of Haynsworth, the Senate generally was eager to as sent to the next choice and thus avoid an other unpleasant battle.

This feeling, together with the belief that Carswell was less controversial than Haynsworth and had none of the busi ness entanglements that defeated the first nominee, made the Administration coolly confident that it would win when Carswell's name was put forward on Jan. 19. Indeed, such key Republican Senators as Minority Leader Scott and Whip Robert Griffin, both of whom had turned against Nixon to oppose Haynsworth, were dutifully backing Carswell. The hard-core opponents waged mainly a delaying action, waiting to see if an arguable case against him would develop.

Opposition Mobilizes

And develop it did. Two newsmen turned up the fact that Carswell had made a white-supremacist speech 22 years ago; Carswell recanted. Then it became known that he had been an incorporator of a Tallahassee golf club that went from public to private status in an apparent attempt to avoid desegregation; before the Senate Judiciary Committee, Carswell obfuscated the issue, bringing his candor into question. Critics pointed out that his decisions had frequently been reversed on appeal; there was little to be said in rebuttal. Some of the nation's leading legal scholars and practicing lawyers questioned his judicial skills. On top of that, Senator Roman Hruska argued in Carswell's defense that mediocrity should perhaps be represented on the court.

As the criticism built up, the Carswell opponents, particularly Massachusetts Republican Edward Brooke and Indiana Democrat Birch Bayh, saw a slim chance to defeat him. Continuing to stall, they subjected the loyalists to a kind of drop-by-drop water torture, engineering one-by-one announcements of new anti-Carswell Senators. Then, last month, Brooke, Bayh and others hit upon a device that they thought would allow troubled Senators to sidetrack the nomination without taking the full heat of voting against it. They proposed sending the matter back to the Judiciary Committee for further study --and there it would almost certainly die. By March 24, Republican Robert Griffin of Michigan warned Nixon that the Democrats needed to pick up only a dozen Republican defectors to carry that vote. From then on, the pro-Carswell Senate leaders and Administration liaison men met daily in the White House to plot strategy.

Adversely affected by the high-pressure tactics that it had employed in the Haynsworth fight, the Administration countered with subtle moves. It coaxed such influential Republicans as Delaware's John Williams and Kentucky's John Sherman Cooper, both of whom had opposed Haynsworth, to announce for Carswell three days apart in order to gain maximum publicity. The Carswell camp, including Kansas Republican Robert Dole, persuaded a majority of the Judiciary Committee Senators to announce that they did not want the nomination returned to the committee. The notion that voting for recommittal would demonstrate a lack of political courage was effectively spread.

Making the Wrong Fight

Still, the nomination's backers felt that they needed a clear indication that the President was wholly behind his nominee. The way Nixon chose to show his support left no doubt at all--but it probably did more harm than good. He contended that the real issue was whether the Senators wished "to substitute their own philosophy or their own subjective judgment for that of the one person entrusted by the Constitution with the power of appointment." Well aware of their own constitutional authority to "advise and consent" on appointments, many Senators resented the statement.

Nevertheless, by the time the recommittal roll call was held last Monday, the Administration had retrieved enough straying Republicans to win handily. The motion was defeated 52 to 44, with only eight Republicans for it. To most observers, that vote seemed the end of any serious threat to Carswell.

While the White House and its allies were concentrating on the recommittal move, Bayh and Brooke were taking counts on the straight up-or-down vote on the nomination, scheduled for Wednesday if recommittal failed. They found that some Senators had indeed bought the concept that recommittal was a gutless way out, and preferred voting directly on confirmation. Among them were Oregon's Republican Robert Packwood, Hawaii's Republican Hiram Fong, Connecticut's Democrat Thomas Dodd. If all the other 44 anti-Carswell votes held firm and those three could be persuaded to vote no, that would close the gap to within one vote of a 48-48 tie (four legislators would be absent). Bayh was sure that Illinois Republican Charles Percy would provide that vote.

The Administration had won its battle --but it was now in danger of losing the war. "The White House had shot its wad on recommittal," Bayh explained. "They called in all their lOUs on that one. They cranked up for the wrong vote." He was confident not only of pinning down the tie vote but also of scratching out one more anti-Carswell ballot. Majority Leader Mike Mansfield agreed to call for a vote on the nomination immediately after the recommittal move lost. The motion required unanimous approval. A perplexed and wary Hruska, floor-managing the Carswell drive, objected.

The Administration strategists quickly assembled in Hruska's office right after the recommittal vote to reassess the situation. They looked at that eight-vote margin and compared notes on which pro-Carswell Senators they might lose. To their consternation, they detected the same potential slippage that Bayh and Brooke had sniffed: the possible loss of Republicans Packwood, Fong and Percy, plus Democrat Dodd. That would not be fatal, since Vice President Agnew would break the tie in the Administration's favor, but it was highly dangerous. "We knew then that we were in trouble," one strategist recalls. The White House men scanned the Democrats who had voted for recommittal, hoping that they might be able to swing one of three Southerners: Arkansas' William Fulbright, Virginia's William Spong, Tennessee's Albert Gore. Further soundings made that unlikely, and the doubts proved well founded.

What really worried Nixon's men, however, was the realization that three Republicans remained uncommitted. Maine's Margaret Chase Smith and Kentucky's Marlow Cook had been with them on recommittal; Vermont's Winston Prouty had opposed them. They knew that none of the trio was high on Carswell. But each was reluctant to cast the decisive vote that would kill their President's choice. Further, the three Republicans seemed linked. Though their motives were different (see box, page 10), they were thought to look to one another for mutual support. Dole told Nixon: "If Mrs. Smith would vote with us, maybe Cook would. Then Prouty would have to." Nixon invited Mrs. Smith to the White House for a talk the day before the final vote. He made a low-key pitch, handling her gingerly. She was noncommittal.

By that morning, the White House was getting desperate. Liaison men under Bryce Harlow began telephoning every Republican who might waver. They tried to convince each one that he was the key to victory for Carswell: "You're the one. You make the difference." Incredibly, some, like Maryland's Charles Mathias, had been ignored until then. There was now great alarm in the White House, and the President was frantic for information. Senator Dole called Nixon Tuesday night. "How does it look?" the President asked. "Rough," said Dole. "It hinges on two Senators, Mrs. Smith and Marlow Cook."

The Boomerang Gamble

On Wednesday morning, the day of the vote, Nixon got worse news. Cook called Harlow to say that he had decided to oppose Carswell. Cook had relayed the same news to Mrs. Smith and Prouty --so that each would know the situation. Relieved that the matter would not be decided by one vote, Prouty told Cook: "It is my intention to vote no." The White House reacted recklessly. Calls went out to such Republicans as Mathias, Cook, and Pennsylvania's Richard Schweiker, reporting that the Administration had Mrs. Smith's vote.

Just 20 minutes before the roll call was to begin, Schweiker got his White House plea--and promptly told Ed Brooke. "I raced into the cloakroom to find Mrs. Smith," Brooke recalled. "She wasn't there. I raced down to the Senate dining room and found her." Mrs. Smith, livid at the unauthorized--but not inaccurate--use of her name, called Harlow, who admitted that the calls had been made. Brooke rushed onto the Senate floor and spread the word that Maggie Smith was not yet in the Administration's camp.

Though the issue seemed decided, no one could be absolutely certain that all of the votes would be delivered on the roll call. Spectators were crunched into every inch of the galleries and scores of senatorial aides crowded the floor aisles as Vice President Agnew, fumbling, announced that "the question is on the nomination of George Howard Carswell." The clerk called "Aiken," and Vermont's senior Senator immediately answered "Aye." Then bells rang throughout the Senate side of the Capitol, signaling the start of the roll call, and the chamber fell silent.

The first gasps came when Cook voted no. The gallery obviously was overwhelmingly against Carswell. Oregon Republican Mark Hatfield dramatically extended a thumbs-down gesture to the clerk when his name was called. Prouty's "No" drew scattered applause, despite rules against such expression. When Maggie Smith delivered her negative vote, apparently motivated by anger at the White House, everyone knew it was all over. Agnew's official announcement of the count drew shrieks, cheers, applause and a few boos. The Vice President called for order, then directed that the galleries be cleared. Mansfield rose to move that the President be informed "immediately" of the outcome. Nixon, surprisingly, was neither watching television nor listening to the radio at the big moment. An aide brought him the news. The President telephoned Carswell in Tallahassee, Fla., and told him: "I'm disappointed, but I hope you'll see fit to remain on the bench."

What really had killed the Carswell nomination? Despite Nixon's attempt to portray Carswell as the victim of reverse bigotry on the part of anti-South Senators, the rejection actually reflected a widespread conviction that Carswell simply did not measure up to the stature of men the Senators wanted to see added to the Supreme Court. Even many Southerners felt insulted that Nixon had chosen Carswell to represent them. "I'm voting for the guy," said one Southern Democratic Senator, "but it's great to see the Republicans stewing in their own juice. They made this bed." Most Southerners voted for Carswell, but some who did, like Sam Ervin, an expert on the Constitution, declined to work very hard for the nomination.

The Administration's Southern Strategy

Many Republicans, too, were dismayed at the choice Nixon had given them. One who pressed most actively for confirmation began to explain how rough his task had been. "When you try to defend a mediocre racist," he said --and then he broke into laughter at how ridiculous that sounded. Maryland's Mathias thought at first that Carswell might "be getting a bum rap" from the kind of legal scholars who look down on lawyers who have not "been to Harvard," but decided to vote no after examining Carswell's record. Minority Leader Scott, influential with liberal Republicans, left most of the vote-hustling to aides.

Actually, Nixon's humiliation over two consecutive defeats was largely self-inflicted. The ease with which Warren Burger won confirmation as Chief Justice belies Administration claims that most Democrats and Republican liberals would automatically team up to block any Southern judicial conservative. At the time of the Burger appointment, Nixon said that to avoid controversy over Supreme Court nominees he would name men whose credentials were beyond challenge. He also declared that he would never use his appointment power to achieve a racial, religious or geographical balance on the court. He later not only abandoned that in favor of a sectional approach, but narrowed his criteria to select two men who appealed mainly to conservative whites.

These latter appointments were part of the Administration's Southern strategy--an attempt to appeal not only to Southerners and conservatives throughout the country, but also to the many whites who are upset by black crime, youthful radicals, busing to integrate schools, and the "coddling" of criminals by the courts. Attorney General Mitchell effectively counseled this strategy as Nixon's presidential-campaign manager. It helped gain Nixon enough Southern states to ensure victory despite the candidacy of George Wallace.

Ever since they became law partners in 1967, Mitchell and Nixon have been fast friends and kindred spirits. It was Mitchell who gave one of the pushes that helped to force Justice Abe Fortas off the Supreme Court by advising the then Chief Justice, Earl Warren, of a financial indiscretion committed by Fortas. The resignation convinced Nixon of the danger of appointing anyone so close to himself that it would encourage charges of cronyism, as in the case of Fortas and Lyndon Johnson.

Limited Options

In setting forth his requirements after the Burger appointment--a Southerner from the federal bench, a Republican, a strict constructionist, under 60 and someone Nixon did not personally know--the President limited his options. This ruled out judges on the higher state courts, which often possess talented jurists, men from the South's best law faculties, and U.S. Senators. Even so, the President could have come up with acceptable nominees if he had not relied so completely upon--and been served so poorly by--Mitchell.

While the Attorney General undoubtedly thought that he was offering just what the President wanted, his choices were needlessly weak, as are his relations with Capitol Hill. The nuances of Capitol Hill procedures escape him. The necessity of maintaining the best possible relations with all factions is foreign to his nature. Because of his own distaste for liberals of both parties and because his ranking deputies are conservative, his communications with the Republican liberal wing are practically nil.

Mitchell's department was just as insensitive in selecting the Supreme Court nominees. Mitchell originally assigned his deputy, Richard Kleindienst, to compile a list of some 150 potential Justices. Applying Nixon's guidelines, he reduced the list to about 30 names. Mitchell then helped prune it to just five, including Burger, Haynsworth and Carswell. He decided that Burger was best and recommended him for Chief Justice. When Fortas resigned, Mitchell asked another assistant, William Rehnquist, to study Haynsworth's legal record. Since Fortas had been tainted by his financial interests, the FBI carefully probed Haynsworth's business background. It turned up some potentially damaging financial interests of the judge --but Mitchell dismissed them as not improper. The Senate later disagreed.

In Carswell's case, there were no stock complications and the investigation centered on his legal qualifications. Rehnquist reviewed all of Carswell's judicial opinions and found nothing objectionable. But the FBI missed the white-supremacy speech and Carswell's role in the Tallahassee Golf Club. Mitchell recommended Carswell's nomination, unconcerned that there was nothing outstanding in his judicial record.

More significant, neither Mitchell nor the White House made any attempt to sound out key Senators of either party before announcing the appointments. Many conservatives admire the Attorney General, but their votes were almost automatically assured on both nominations. In the late stages of the Carswell campaign, Mitchell confidently left for a two-week vacation on Key Biscayne. Kleindienst took over--and thus he could wind up a scapegoat if the President decides that someone in the Justice Department must be blamed for bungling the Carswell matter.

Mitchell's performance in getting nominees approved has not been aided by his outspoken wife Martha. Shattering all protocol, she telephoned the wives of several Senators, including Betty Fulbright, to implore them to get their husbands to support Haynsworth. Last week, after Fulbright had voted against Carswell, she startled editors of the anti-Carswell Arkansas Gazette by telephoning the newspaper at about 2 a.m. to declare: "I want you to crucify Fulbright and that's that." A native of Pine Bluff, Ark., she claimed that "Mr.Fulbright does not represent the state." Mrs. Mitchell had earlier told guests at a Women's National Press Club dinner that she had watched her husband reading background information on Carswell and that he had looked up at her, smiled broadly and declared: "He's just too good to be true." Late last week the Justice Department announced that Mitchell had hired a press secretary for Martha.

Nixon has compounded the possibility of mistakes in his court selections by insisting that he should not himself get to know the appointees. He explains that he wants to judge them objectively and keep them at arm's length so they will not feel obligated to him. Nixon has not sounded out the American Bar Association on his Supreme Court nominations, although this is routinely done for all lower federal judges.

The Senate Judiciary Committee asks for A.B.A. review after Supreme Court nominations are made. The prospects are judged either "qualified" or "not qualified." The committee has never found a nominee unqualified for the high court.

The Haynsworth and Carswell fiascoes and the possibility that more vacancies may soon develop because of the advanced age of three members of the court urgently suggest that the selection process be improved. The bar association is willing to be more helpful and might be used by the President as a warning system, though he need not be bound by its ratings. The A.B.A. itself needs to improve its review procedure, and last week its officials offered to do just that.

The Ninth Member

The indications are that Nixon will not change his selection system or his reliance on Mitchell. After last week's vote, the President took his Attorney General for a two-hour dinner cruise on the yacht Sequoia, met with him again the following day at the White House. They were apparently discussing not only Nixon's statement about the Senate, but also the next nomination. As photographers entered the office, Nixon was overheard saying, "You've met the other fellow?" Replied Mitchell: "Yes, I have."

Nixon said that he would make another nomination soon. It could well come in a matter of days. It is known that two Northern judges are already undergoing FBI checks. One of them, Harry Andrew Blackmun, 61, an appeals-court judge from Rochester, Minn., and a longtime friend of Chief Justice Burger, met with Mitchell last week. Blackmun was considered the likeliest choice. Also being checked is Federal District Judge Edward T. Gignoux, 53, of Portland, Me. Both are Harvard Law School graduates. Appointed to the federal bench by President Eisenhower, they are considered strict constructionists.

From the point of view of the Supreme Court's efficiency, the nomination --and confirmation--of the ninth member cannot come too soon. The court has deferred work on numerous cases for want of manpower and because the odd, tie-breaking vote has been lacking. The seat has been vacant for eleven months. Further controversy poses another kind of risk. Though the court has never been as far removed from politics as idealists would like it to be, it depends heavily on political processes and its prestige and moral force to work its will. Its funds come from Congress. Muscle to compel compliance with court decisions comes from the Executive Branch. On highly charged issues, the court's real power can be measured by the degree of esteem in which it is held by society at any given moment.

Attacks on the court, particularly by Wallace and Nixon during the 1968 campaign, lowered that esteem. To be caught in a continuing election-year crossfire can only make its position more vulnerable. A number of conservatives have been talking about impeaching William O. Douglas for ideas that many regard as radical. Though impeachment is a congressional prerogative, Agnew in the CBS interview last week tied the rejection of Carswell and Haynsworth to Douglas' fitness. He suggested that "we take a look" at Douglas' views and then "see whether they are compatible with the position he holds."

Those remarks, coupled with Agnew's attempt to blame the Senate votes on "the liberal media" and "organized labor and civil rights activists," have an ominous ring, just as the President's statement does. The words not only may foreshadow a more abrasive campaign this year than might otherwise have been expected, but represent a failure by progressive elements within the Administration to hold ground against the steadily growing influence of what might be called the Mitchell-Agnew axis.

Increasingly, the President seems isolated from other schools of thought and other individuals once close to him. HEW Secretary Robert Finch has been battered in the racial dispute. Liberals and moderates on the White House staff, such as Daniel Patrick Moynihan, Leonard Garment and William Safire, are slipping. In retreat with them is the notion that the Administration must conciliate, must seek new ways to retrieve the disillusioned and the disinherited.

The entire Haynsworth-Carswell episode--from the nominations through Nixon's angry protests--underscores that failure of leadership. Instead of accepting the Senate's rebuke gracefully in the realization that he may have needlessly contributed to the impasse, Nixon reverted to mundane politics, trying to coax partisan advantage from adversity.

The times obviously demand much more than that. The nation's embattled institutions, including the Supreme Court, the Congress and the presidency, need to gain all the respect they can muster.

The Senate recognized that need last week; the President did not.

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