When Jews Set The SCOTUS Standard

Harold G. Carswell may be best remembered not for being a totally unqualified candidate for the U.S. Supreme Court, but for one senator’s unique defense of his ill-fated nomination.

President Richard M. Nixon picked him in 1969 to fill the vacancy left by the resignation of Associate Justice Abe Fortas. Carswell wasn’t Nixon’s first choice; he had wanted the equally unqualified southern conservative Clement F. Haynsworth Jr., but the Senate rejected him by a 55-45 vote.

Both fit Nixon’s successful southern strategy to woo to the GOP Democrats of the Old South upset with President Lyndon Johnson’s passage of the civil rights legislation. Nixon sought to cement the realignment of the two parties with his first Supreme Court nomination much as Donald Trump is doing to push the court to the extreme right.

Carswell shared the views of the former Southern Democrats and those Trump appeals to today on race, white supremacy and women’s rights. In retrospect, the White House reaction to Carswell’s defeat had a déjà vu quality. It was all the fault of the “liberal media,” not the deeply flawed candidate, declared Vice President Spiro T. Agnew.

We were reminded of this piece of history by the passing of James Clayton, the Washington Post editorial writer who played an instrumental role in focusing public attention on Carswell’s civil rights record. Clayton died this week; he was 87. The full obituary is worth reading.

The Carswell episode will be remembered not just because it was the first time since 1894 two nominees had been rejected for a single seat. And not because it resulted in the nomination of a worthy candidate, Harry A. Blackmun, who was confirmed by the Senate without opposition. It is memorable for the last ditch defense mounted by Sen. Roman L. Hruska (R-Nebraska).

Carswell may be mediocre, he conceded, but mediocrity is “entitled to a little representation,” too. All the justices can’t be brilliant, he noted, and as examples offered the names of the first three Jews to serve on the Supreme Court.

“We can’t have all Brandeises, Frankfurters and Cardozos.”

Why not?