In recent weeks, a great deal of attention has been paid to Clarence Thomas and Anita Hill — and understandably so. Yet, with Sens. Jeff Flake and Susan Collins’s decision to vote for Judge Brett M. Kavanaugh on Friday, ensuring his confirmation, the case of Clement Haynsworth offers another important comparison. The failure of Haynsworth’s nomination sheds light on the crucial need for a Senate that is responsive to democratic politics and deliberative, and one in which partisanship gives way to a shared interest in discovering the truth.
These are precisely the traits missing from the Senate today, at a time when moderation and wisdom are needed more than ever.
A graduate of Furman University and Harvard Law School, Haynsworth served in the Navy during World War II and then practiced law in South Carolina until President Eisenhower nominated him to the U.S. Court of Appeals for the Fourth Circuit in 1957. Eight years later, Haynsworth became the chief judge of that court.
Like Kavanaugh, Haynsworth quickly established himself as a well-respected conservative jurist. And like Kavanaugh, the Senate had confirmed him to sit on the federal bench.
On August 21, 1969, Nixon nominated Haynsworth to the United Supreme Court to fill the seat vacated by Justice Abe Fortas. Assistant Attorney General William Rehnquist was among those charged with vetting the nominee. The FBI conducted what one White House aide at the time called a “slightly more than routine” background check. Haynsworth seemed like a shoo-in.
Then things got messy.
Accusations of an antilabor and anti-civil rights bias in his opinions cast a shadow over Haynsworth’s candidacy. There were also allegations that he had failed to recuse himself from a number of cases in which he had a personal financial stake. In one instance, Haynsworth had presided over several cases with litigants connected to Carolina Vend-A-Matic, a company Haynsworth co-founded and in which he had continued to hold an interest. Haynsworth had also ruled in a case involving the Brunswick Company. Before that decision was made public, however, Haynsworth purchased stock in the company.
“We goofed,” a Justice Department official would later admit about the initial investigation. “We just missed it.”
The NAACP, the AFL-CIO, the National Education Association and the UAW, among other organizations, rallied the opposition, drawing attention to Haynsworth’s ethical indiscretions and pressuring senators to rethink their support. The anti-Haynsworth lobby organized citizens, whose main bargaining power was their vote in the next election. “Letters of protest began pouring into senatorial offices and delegations buttonholed their Senators either in Washington or on visits home,” one reporter observed. In 1970, before campaigns were dominated by contributions and PACs, such threats carried a great deal of weight.
But Nixon dug in. He lashed out at the “vicious character assassination” that Haynsworth had to endure and maintained that Haynsworth was “an honest man … a lawyer’s lawyer and a judge’s judge.” Haynsworth himself insisted, “I am not withdrawing. I haven’t ever thought of it.”
Using the leverage of the White House — the budgets, agencies and programs that come with executive power — the administration fought back with a “stiff counter-drive to reclaim Republican defectors and to hold others in line.”
As the movement against Haynsworth gathered steam, senators became increasingly rattled by the judge’s sloppy ethics and his evasiveness. Eventually, Republicans Hugh Scott, the minority leader, and Robert Griffin, the minority whip, urged Nixon to withdraw the nomination and start over.
But Nixon pledged “to stand by” Haynsworth, which he did until the bitter end. With both sides holding firm to their positions, on Nov. 21, 1969, 17 Republicans broke ranks with the president and joined 38 Democrats to reject Haynsworth by a 55-45 vote. Haynsworth became the first Supreme Court nominee to be officially rejected by the Senate since Herbert Hoover had put up John J. Parker in 1930.
In the end, 40 percent of Republican senators voted against the nominee — including their leaders, Scott and Griffin — something unimaginable in today’s highly polarized Senate.
Instead of regrouping in the aftermath of Haynsworth’s defeat, the president, furious, instructed his strategist Harry Dent to “go out … and find a good federal judge further south and further to the right.”
The result was the nomination of Judge George Harrold Carswell, a candidate who had “more slender credentials than any nominee put forth this century,” according to the dean of Yale Law School. Among other problems, Carswell had a stunningly high reversal rate. In addition to questions about his credentials, there were also allegations that Carswell’s decisions had hurt the cause of civil rights.
Famously, in defending Carswell’s credentials, Republican Sen. Roman Hruska of Nebraska best captured the strangeness of the moment. “Well, even if he were mediocre, there are a lot of mediocre judges and people and lawyers,” Hruska declared. “They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Frankfurters and Cardozos.” Even Nixon was “privately convinced by Carswell’s record and inept performance in his own defense that he was not an appropriate nominee,” wrote Tom Wicker of the New York Times.
Not surprisingly, on April 8, 1970, 13 Republicans joined 38 Democrats in opposing Carswell’s nomination by a vote of 51-45. The following week, Nixon nominated Harry Blackmun to fill Fortas’s seat. The Senate confirmed Blackmun, 94-0, less than a month later.
In the weeks after the unraveling of the Haynsworth nomination, Henry Lee Moon wrote in the Crisis that Nixon and his advisers had misread the tea leaves. “They turned deaf ears not only to the civil rights, labor and liberal voices pleading for withdrawal of the controversial nomination, but also to the pleas of the moderates within their party. The struggle had become a test of power between the President and the people, as represented in the Senate.”
Of course, the Haynsworth opposition was not a purely grass roots movement. It was coordinated by well-established groups with significant expertise in political organizing. Nevertheless, ordinary citizens — with little more than letters, phone calls and other tools of democratic persuasion at their disposal — went head to head with the White House to lobby against Haynsworth’s nomination.
“The necessity of a senate,” Alexander Hamilton and James Madison wrote in Federalist 62, “is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”
When Sen. Scott cast his vote against Haynsworth, the New York Times reported there was an “audible gasp from the gallery.” But the paper concluded the he “chose his anti-Haynsworth constituency over party loyalty and his President.” In the midterm elections that followed in November, Scott won reelection handily and Republicans picked up two seats in the Senate.
It is fair to debate whether Haynsworth had been worthy of ascension to the Supreme Court. He continued to serve ably on the Fourth Circuit for years to come. However, the moral of this story relates more to the process than the outcome: Senators took seriously the threat that their constituents would sit on the sidelines or support opposing candidates on Election Day and even leaders in the Senate eschewed partisanship.
The Senate was built to moderate our most polarizing impulses and to mediate between our bitterest factions (though it isn’t always successful). In the case of Haynsworth, moderate senators — mostly Republican — weighed their options and listened to their constituents. Party loyalty meant something different in those days, and polarization hadn’t yet become endemic. In that Senate, cooler heads prevailed.
Glimpses of that Senate have been rare during the recent hearings. Unfortunately, bipartisanship, benevolence and civility have been outdone by partisanship and rancor.
For the sake of the country, however, it is imperative that cooler heads prevail again.