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Nixon's Southern court strategy

 
Federal Judge Harrold Carswell of Florida was nominated by Richard Nixon to the Supreme Court.
Federal Judge Harrold Carswell of Florida was nominated by Richard Nixon to the Supreme Court.
Published March 11, 2016

A popular president vowed to wind down an unpopular war. He boldly announced a radical idea to replace welfare with a guaranteed annual income. Path-breaking environmental legislation was enacted. He was Richard Nixon, in the first year of his presidency.

Then in August 1969, just seven months after taking office, Nixon pounced upon the opportunity to replace departing Supreme Court Justice Abe Fortas with a conservative judge named G. Harrold Carswell. Not just any conservative, but a Southern, strict-constructionist conservative. He was replacing not just any liberal, but one whom President Lyndon Johnson wished to succeed Chief Justice Earl Warren. But Fortas resigned amid conflict of interest revelations.

On Jan. 21, 1970, the St. Petersburg Times' headline predicted, "Confirmation Appears Certain." How and why did Nixon's nomination of Carswell run off the rails? And what was Florida's role in the political train wreck?

Nixon had won the presidential election of 1968 in large part because of his brilliantly orchestrated "Southern strategy." Historically, the Republican Party drew its strength from Northern states, while the Democratic Party was rooted in the South. "Vote as you shot," Civil War veterans reminded voters.

Nixon seized upon a moment in history to plant the GOP flag on Southern soil. President Lyndon B. Johnson understood the price the Democratic Party would pay for the passage of the 1964 Civil Rights Act, lamenting famously, "I think we just delivered the South to the Republican Party for a long time to come."

Strategist Kevin Phillips convinced Nixon that the political stars had aligned, an opportune moment for the GOP to invade and win over Southern white voters. A frightening spike in America's crime rate emboldened the Republican message, as did the unsettling desegregation of Southern schools. Florida's Republican governor, Claude Kirk, resisted the Supreme Court's efforts to bus schoolchildren for the purpose of integration, threatening to fire principals who complied.

Candidate Nixon had vowed to appoint Southern conservative judges to blunt the Warren Court's overreach. With an eye toward the 1972 election, Nixon aimed to lure white voters who had voted for George Wallace in 1968.

Resolute, the president nominated federal Judge Clement Furman Haynsworth, a South Carolinian, to become associate justice on the U.S. Supreme Court. But Senate Democratic liberals attacked the nominee's record on civil rights. In November, Haynsworth's nomination was rejected by the Senate by a vote of 55-45.

Smarting and vengeful, Nixon told his special counsel, "Find a good federal judge further south and further to the right." Gov. Kirk identified such a candidate: Judge Harrold Carswell. "Though still a young man he has been a strong Republican leader here in Florida, beginning at a time when there were no Republicans in North Florida," Kirk wrote the president. On Dec. 18, 1969, a Times headline hinted, "Nixon Said Eying Carswell for High Court."

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Carswell seemed heaven-sent. After all, the federal judge had been confirmed by the Senate on three separate occasions, and even the gruff Attorney General John Mitchell told the president that Carswell "was too good to be true." Egil Krogh, famous for bringing Elvis to the White House, waved Carswell's FBI background clearances in the air, declaring, "He's clean as they come."

Born in Georgia in 1919, Carswell had deep roots in the Peach State. Gen. William T. Sherman's troops had burned his grandfather's plantation. World War II interrupted law school. While serving aboard the USS Baltimore, he saw action in the Pacific. He regaled friends about his wartime rendezvous with President Franklin D. Roosevelt. When the commander in chief boarded the Baltimore, Lt. Carswell was assigned to watch the president's Scotty dog, Fala.

Returning to Georgia, the war hero married his sweetheart, raised a family, resumed his studies and practiced law. He ran unsuccessfully for the Georgia legislature and governor's office. In 1948, the Carswells moved to Florida, where he joined a Tallahassee law firm that included future governor LeRoy Collins. President Dwight D. Eisenhower appointed Carswell U.S. attorney for the Northern District of Florida in 1953, and in 1958, he was appointed to serve as judge for the Northern District of Florida. And in May 1969, Nixon elevated Carswell to a new seat on the U.S. Court of Appeals.

But old demons and new sensibilities stalked Carswell. The year 1970 reflected a world turned upside down by a decade of war, a civil rights movement and campus activism.

The 1970s necessitated a reckoning. Words that once drew cheers now demanded an accounting. A reporter found the smoking gun in a newspaper that Carswell edited. In the politically charged year of 1948, Carswell had told an audience at American Legion hall in Gordon, Ga., "Segregation of the races is proper and the only practical and correct way of life in our states." He added emphatically, "I yield to no man, as a fellow candidate or as a fellow citizen, in the firm vigorous belief in the principles of white supremacy."

The Rev. C.K. Steele, a Tallahassee civil rights leader, stated that Judge Carswell exuded Southern charm with equal doses of obstructionism and racism. The Tallahassee Municipal Golf Course and clubhouse were sources of local pride. In 1956, African-Americans protested the "whites only" policies. As incorporator, Carswell deeded the transfer of the public golf course to a private group that barred African-Americans.

Carswell marshaled impressive support from the legal community, but a counterattack by law professors questioned Carswell's worthiness for such an esteemed position. An alarming number of his opinions had been reversed in appeals. U.S. Sen. Roman Hruska defended Carswell, contending, "Even if he were mediocre, there are a lot of mediocre judges and people and lawyers." The no-nonsense Nebraskan then asked, "They (mediocre Americans) are entitled to a little representation, aren't they?"

On April 8, the Senate rejected Carswell, voting 51 to 45 to against the nominee.

Crushed, Nixon was mad at Democrats but furious at the FBI and White House staff who had failed to scrutinize the nominee. "He's like a demon over this," wrote aide H.R. Haldeman. Time magazine called the setback "The Seventh Crisis of Richard Nixon," alluding to the president's autobiography, Six Crises. His approval ratings plunged 11 points.

Nixon ultimately nominated Minnesotan Harry A. Blackmun to the Supreme Court, whose nomination was confirmed.

Harrold Carswell insisted repeatedly that he had changed. In his defense, Pennsylvania Sen. Hugh Scott philosophized, "A wise man changes his mind often and a fool never." Examples abound. Earl Warren had served as attorney general of California during World War II, approving the internment of Japanese-Americans. President Eisenhower, who nominated Warren, quipped that his appointment of the expansive justice was "the most damned-fool mistake I ever made."

President Franklin Roosevelt nominated Hugo Black to the Supreme Court in spite of the fact that as a young politician in Alabama, he had joined the Ku Klux Klan. Justice Black tempered justice with mercy and discretion. "My father used to wear white robes and scare black people," Black's daughter explained. "Now he wears black robes and scares white people."

Concluding that revenge is best served hot, a humiliated Carswell immediately announced his candidacy for the U.S. Senate. He lost the 1970 Republican primary to Pinellas County congressman William Cramer who, in turn, was defeated in November by upstart "Walkin' Lawton" Chiles.

In 1976, Harrold Carswell made headlines when he was arrested and convicted of propositioning an undercover police officer in a Tallahassee men's room. "Our investigation of Carswell had been so superficial," FBI assistant director William Sullivan later admitted, "that we never found he was a homosexual."

As the Book of Ecclesiastes 3:1 reminds us, "To everything there is a season … a time to get, and a time to lose."

Gary R. Mormino is scholar in residence at the Florida Humanities Council and recipient of the 2015 Florida Lifetime Achievement award in writing. He wrote this exclusively for the Tampa Bay Times.