The Women Who Helped Take Down a Nixon Supreme Court Nominee
WHY YOU SHOULD CARE
The man who penned Roe v. Wade might never have made it to the Supreme Court but for the failed nomination of Harrold Carswell.
By Sean Braswell
By the time Richard Nixon nominated G. Harrold Carswell for the Supreme Court in January 1970, the seat vacated by Abe Fortas had been open for nine months, and the president was getting frustrated. Two months earlier, the Senate had rejected Nixon’s first nominee for the seat, South Carolina judge Clement F. Haynsworth (a little too pro-segregation for comfort), but Nixon had gone back once more to the well of conservative Southern judges to pluck out Carswell, 50, a judge on the U.S. Court of Appeals for the 5th Circuit.
Carswell had been a federal judge for more than a decade — at age 38, he had become the youngest one in the country — and his nomination looked promising. But sometimes, as has recently been proved again with the rocky nomination of Brett Kavanaugh, things can go unexpectedly sideways during the Supreme Court confirmation process. For Carswell, that was thanks in no small part to some outspoken female activists willing to call him out for his behavior toward women.
The knives were out for Carswell.
The Carswell nomination got off to an inauspicious start. It took reporters less than two days to unearth a speech he had given as a young office-seeker in which he had declared his belief “that segregation of the races is proper and the only practical and correct way of life in our states.” Oh, and he had also been involved in a plan to turn a public golf course in Florida into a whites-only country club. But, as is still true today, what were considered a few minor strikes against Carswell were not enough to scupper a nomination that the White House and Republicans in Congress were behind. “The killing of a Supreme Court nominee is rarely death by a thousand cuts,” says Daniel Urman, a law and politics expert at Northeastern University. “Usually it requires death by four or five stabbings.”
And the knives were out for Carswell, who managed to weather the opposition from civil rights activists during the initial days of the hearing, when he declared before the judiciary committee that “I am not a racist” and that his prior remarks were “something out of the disembodied past.” Then, two women came before the all-male committee to discuss the latest nominee to a court that at the time had never had a female justice — and to raise an issue nobody had ever raised before that body: sexism.
The first witness that January morning was Rep. Patsy Takemoto Mink, D-Hawaii, the first woman of color elected to the House of Representatives and only one of about a dozen women in Congress at the time. Mink told the committee that Carswell’s nomination was “an affront to the women of America,” before connecting the allegations of racism to those of sexism. “Male supremacy, like white supremacy,” Mink said, “is equally repugnant to those who really believe in equality.”
Mink then cited Carswell’s recent refusal to review a case in which a woman had been denied an assembly line job because she was the mother of preschool-age children (a company policy that, of course, did not apply to similarly situated fathers). When the Republican senator from Kentucky, Marlow Cook, challenged Mink by pointing out that 10 judges on Carswell’s court had denied a hearing for the case, she responded: “Yes, I am well aware of that, Mr. Senator. But the other nine are not up for appointment to the Supreme Court.” (If only confirmation hearings had been televised at the time.) Mink was followed by Betty Friedan, president of the National Organization for Women, who labeled Carswell “a sexually backward judge” who would be unsympathetic to cases coming before the court involving the legal rights of women.
Thanks to Mink and Friedan, momentum began to build against Carswell, who was nonetheless endorsed by the committee for a full Senate vote. In the wake of the allegations of racism and sexism came a charge that proved to be far more deleterious (and a more palatable excuse for some senators to oppose Carswell): his mediocre career as a jurist. More than 450 lawyers, including the deans of Harvard and Yale law schools, signed a letter noting Carswell’s lack of distinction. Opponents pointed out that 40 percent of Carswell’s rulings had been overturned on appeal (a large percentage for a federal judge) and that his rulings cited fewer authorities than those of other judges. Some senators rallied to his defense but in a rather unhelpful way. “Even if he is mediocre,” Republican Sen. Roman Hruska of Nebraska famously argued, “there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they?”
Ultimately, Carswell went down in a narrow Senate vote of 51-45, with 38 Democrats and 13 Republicans voting against him. After being rejected, Carswell resigned from the federal appeals court, and six years later was charged with making homosexual advances to an undercover Tallahassee police officer in a mall restroom. So it goes.
It didn’t go much better for Nixon and his plan to put a Southern conservative on the court. “If they vote [Carswell] down, we’ll send them somebody from Mississippi,” Nixon boasted to fellow Republicans during the latter days of the fight. But when the time came for a third nominee, Nixon played it safe with Harry A. Blackmun of Minnesota, a justice who would prove to be more liberal than anticipated and pen the court’s opinion in Roe v. Wade just three years later — a landmark decision hailed by Mink, Friedan and women’s rights advocates everywhere.