Four Crucial Nays: Why They Did It

MOMENTS before voting began on the Carswell nomination, Robert Dole of Kansas turned his back on Vice President Agnew to speak directly to his fellow Republicans on the left side of the Senate chamber. Dole looked squarely at Marlow Cook of Kentucky, who had led the unsuccessful fight to confirm Clement Haynsworth. "The fate of G. Harrold Carswell rests on this side of the aisle," Dole said. "We will make the decision, as our votes will make the difference." Cook stared straight ahead. When his name was called to vote, he replied firmly: "No."

Given his championship of Haynsworth and the fact that he is a freshman Senator from a border state that has Southern proclivities, Cook seemed to be oddly cast in his defiant role. At the start, he wanted to stay and vote with the Administration on Carswell but, after long hours of Judiciary Committee hearings and his own examination of Carswell's record as a judge, Cook concluded that Carswell flunked the test of legal competence.

"He didn't pass the standards that I'd set with Judge Haynsworth," Cook, 43, told TIME Correspondent Neil MacNeil. "I'm a lawyer. I'd wanted to be one all my life, ever since I was a kid. The Supreme Court is something to me which is so awe-inspiring that I want to dedicate myself to seeing that the court gets back to the greatness it once had."

By Cook's account, he did not finally make up his mind until the eve of the vote, after the second of two visits to the White House. The first time, he talked with the President over coffee for more than an hour, explaining, lawyer to lawyer, his reservations about Carswell. Nixon explicitly asked him for his vote. Cook would not promise it. Said Nixon: "I understand, and if you have a problem on this you'll just have to go your own way." Next day Cook was back at the White House for a presentation of Medals of Honor--all of them awarded posthumously--to Viet Nam war heroes. Cook heard Nixon praise "the excellence of these people, the high degree of their efficiency." That did it. Said Cook: "Driving back, I thought to myself, what we are saying here is that these boys gave their lives --and we sitting up here are going to put on the Supreme Court someone from whom we don't demand a high degree of efficiency and excellence. It may sound corny, but that's what happened."

Another lawyer who favors a strict-constructionist court, Freshman Democrat William Spong of Virginia, went through a similar process in arriving at his anti-Carswell decision, though there was no emotional conclusion like Cook's experience at the Medal of Honor ceremony. Spong, too, had voted for Haynsworth, and he had also started out for Carswell. "I agree with the President that there is the need of a Southerner on the court," Spong said. But Carswell's printed opinions as a district court judge turned out to have been reversed, when appealed, nearly three times as often as those of his colleagues, according to a Ripon Society survey. Spong added: "I spent the Easter recess reading the statistical data on his reversals, and opinions he had rendered on contracts and other matters with which I was familiar as a lawyer." He concluded: "The South has been patronized in that the President offered a nominee who was less than qualified."

Spong and Cook felt strong pressures from home to vote for Carswell. For Vermont Republican Winston Prouty, it was the other way round. He is generally an Administration loyalist; he stuck with Nixon on the ABM issue when most Northeasterners did not, and he supported the Haynsworth nomination. But the Senator faces a difficult reelection campaign against former Governor Philip Hoff, a liberal Democrat who had zeroed in on the incumbent as a Nixon rubber stamp. Moreover, the mail from Prouty's Yankee constituency ran heavily against Carswell, and the state bar association plumped for a no vote.

Prouty found no satisfactory answers from pro-Carswell colleagues to his questions about the nominee. "I thought we would be doing the Administration a favor by recommitting, giving Carswell a chance to dispel some of the doubts about him," he said. Once the recommittal motion had failed, he concluded, he could not support Carswell on the final vote. Said Prouty: "It was a difficult decision--one of the most difficult I have ever had to make."

The final crucial vote against Carswell came from another New England Republican, Maine's formidably taciturn Margaret Chase Smith, who had opposed Haynsworth. Though Mrs. Smith indicated before the vote that she was unhappy with Carswell's contradictory testimony about his role in incorporating a segregated Tallahassee country club, one of her close confidants let the White House know that she was "all right" on Carswell. Just before the Senate vote, Mrs. Smith learned that Administration operatives, particularly White House Aide Bryce Harlow, were using her favorable stand to lobby Republican waverers. The Congress has no fury like Mrs. Smith's when she feels that her senatorial independence has been violated. Seething, but outwardly as serene as the fresh rose she wears each day, Mrs. Smith sat quietly until she too could say "No." Asked for her motive, she would only say: "My vote speaks for itself."

Thus, for wildly different reasons --lawyerly doubts, reverence for the Supreme Court, political pressure back home, personal pique--a Southerner, a Border State Senator and two Yankees cast the key votes against Carswell. Once again, out of its diversity, the Senate had spoken.

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