Below the Bench

Richard Harris brings to this chronicle of the Senate’s repulse of Judge G. Harrold Carswell at the gate of the Supreme Court the exhilarating spirit of those great Whig historians who preferred to write about a politician only at his moment of highest disinterest. Thanks to them we know everything except what we would rather not know about Fox falling upon George Germain or about Grafton delivering to James the Second the response of the Old Cause.

Harris finds his heroes, as Macaulay and the Trevelyans found theirs, almost always at their best, a best which is so surprisingly good as to constitute, of all unexpected things, an argument for historical optimism. This author is at once engaged in his partisanship and inexhaustible in his researches, two qualities which provide him with an intimacy with his protagonists so enthusiastic as to make their version of Carswell’s rejection his own. To any demurrer that he describes their motives as they would themselves describe them, he can properly answer that the Carswell matter was one of those special moments when the public man so gave way to principle that the reason he gave for doing something was in unaccustomed harmony with the real reason he did it.

Harris attempts no such closeness to Attorney General John Mitchell, who is never visible, although he can occasionally be heard clumsily tramping up and down the back stairs, a sheep in wolf’s clothing. But then, an attorney general who offers his President Judge Carswell as a candidate who is almost too good to be true is of a species of failed malignant that can satisfactorily be explained by its enemies. Moreover, any suspicion that Harris’s senators seem to him rather too good to be true is quickly lifted when they speak of the Attorney General: Then they sound like their old selves—men to whom the only intriguer who cannot be forgiven is the incompetent one.

Harris inspires us with the politician in a moral fit. Martin and Susan Tolchin’s study of political patronage in New York and elsewhere makes us feel resigned to the politician in the transactions of his ordinary rounds. Yet one passes from Harris to the Tolchins with no sense of any change in the cast, at least in type and frequently in personage. In Harris’s book Senator Bayh listens to Dr. Aaron Henry describing the perils of the night endured by anyone who tries to register Negroes as voters in Mississippi. Bayh returns to his office and mutters, “How can you listen to those stories and let Carswell go on the court?” In the Tolchins’ book Senator Bayh enjoys the blessings of an Indiana Democratic organization which taxes every patronage appointee 2 percent of his salary and excuses this extortion as “cheaper than an employment agency fee.”

Harris’s Senator Proxmire is the first man in the Chamber to declare against Judge Carswell; in the Tolchins’ book Senator Proxmire attacks “defense spending in Georgia while defending auto purchases [by the General Services Administration] in Wisconsin,” for the relief of his state’s beleaguered American Motors.

Harris’s Senator Javits submerges his convenience and his solicitude for Mr. Nixon as “my President” to serve among the managers of the anti-Carswell command; in the Tolchins’ book Senator Javits accepts the appointment of a New York Democratic federal judge, whose capacities he finds dubious, in exchange for getting a “quality” Republican judge of his own.

Harris tells us that Bruce Bromley, a prestigious New York lawyer, mounted against Judge Carswell a rally of paladins of the bar who, in Joseph Rauh’s words, saw that “they could not stand by if moderation—let alone the system—was going to be preserved in this country.” The Tolchins’ Bruce Bromley took a fee of $225,000 from the House of Representatives to argue in the courts its case for expelling Adam Clayton Powell from his seat, “although the legal work was minimal.”

These are all the same persons; and there are no contradictions in the likenesses. Harris’s chronicle would be less persuasive than it is if it were simply the product of romantic exuberance. He makes us entirely aware that the main agonies of his protagonists were not in the contest against Nixon and Carswell but in their struggles to avoid the contest. The Tolchins argue that “today’s patronage opportunities” have a dimension quite beyond the imagination of the old ward bosses; and the temptations to iron rectitude appear to be correspondingly more limited. There are no George Norrises in Harris’s pantheon. None of his senators seems entirely insensible to his kinship with former New York City Councilman Dominick Corso, whose proud rebuttal to a Reform colleague is cited by the Tolchins:

You think it takes guts to stand up for what you think is right? That doesn’t take guts. What takes guts is to stand up for what you know is wrong. Day after day, year after year. That takes guts.

Whigs and not Jacobins are the outer limits of our hopes for public men these days; and the grand occasions of Whig history only celebrate parliaments which, enduring rather more than they should from the Crown, finally stick at some point where the Crown asks too much of them.

Sticking points are among the enduring puzzles of politics. Most of the senators in Harris’s history had grown up trained to regard the scrutiny of judicial appointments as anything but a branch of sacred studies. In general, seats on the bench are less often allotted after merit examinations than places in the cabs of state highway trucks. It may well be, as the Tolchins were told by an anonymous official of the Justice Department, that “only in New York and Chicago…do federal judgeships go for a price; in New York he estimated the average judgeship costs $80,000, while, in Chicago, where service counts more than money, judgeships extract only about $7,500.”

But, this limited venality aside, legislators are so remarkably casual about their responsibilities in judicial selection that the senators who stuck at Carswell as a Supreme Court justice had approved him as a United States Court of Appeals judge only the summer before without a dissent on the floor and after a hearing of the Judiciary Committee which lasted only ten minutes.

And yet Harris fairly persuades us that the critical votes against Carswell were cast by senators who had come to feel his case as a moral issue: “In the privacy of the night,” Senator Gravel’s administrative assistant decided, “they thought about the Republic.”

The same infusion by the moral imperative seems also to have overcome the lawyers from all over the country who opposed Carswell. “It was fantastic,” said Joseph Califano, a recruiting officer for the resistance. “I discovered a widespread apprehension among lawyers that the integrity of the judiciary was at stake.”

Yet the integrity of the judiciary has been a concern pressing more sharply upon lawyers than upon politicians. Judge Carswell went through his travails with the American Bar Association consistently supporting him, a posture dictated, it was reported at the time, by the ABA’s agreement to approve any candidate Mr. Nixon submitted to it so long as the President would go through the motions establishing the precedent that an American President submits his choice to the ABA before finally sending him to the Senate.

Even those lawyers like Samuel Rosenman, Bethuel Webster, and Francis T.P. Plimpton, who were pillars of the opposition, were singularly new to the cause of judicial improvement, each having been a president of the New York City Bar Association, which has been historically casual about the qualifications of its own judges. In their immense treatise on the government of New York,^* Wallace S. Sayre and Herbert Kaufman are cheerful about the diminution of the influence of the party machines over public affairs everywhere except in the courts. “First in importance [in the areas where party leaders have kept their power] are appointments made by the judges and the courts,” they report. “For these positions the party leaders have not only the most effective opportunities for ‘nomination’ of eligible appointees, but it is to these positions that party leaders are most successful in securing appointments for themselves.”

The Citizens Union, the Tolchins say, has reported that “more than one-third of the Supreme Court Justices in New York City hired clerks who were district leaders or County Chairmen.” This, of course, is one of the least expensive fees a judge can pay for his seat. Sayre and Kaufman assert that “district leaders can extract [from the judge of his choice] as much as a year’s salary plus an additional ‘campaign fund’ of several thousand dollars.”

The black robe is indeed the prime article of commerce remaining to the party organizations; and they are usually careful to preserve it by giving the customer a bipartisan nomination. Yet the official bar generally lives uncomplainingly with this state of things in cities like New York where, say the Tolchins, the wives of judges indulge in wry jokes about how long it will take the family to pay for its seat. The Association of the Bar of the City of New York does rate judicial candidates according to the degrees of “outstandingly qualified,” “qualified,” and “unqualified.” Its list, however, is modestly circulated and only after the party organizations have agreed upon their nominations. The procedure’s inhibition upon the spoils system is further disabled because, Sayre and Kaufman note, “almost all the candidates are called ‘qualified.’ ”

A modest exception to this tradition of indifference was undertaken by Francis Plimpton when he was president of the Association of the Bar of New York. He entered upon what he innocently assumed to be a gentlemen’s agreement with the Bronx and Manhattan Democratic leaders that they would name no one to the State Supreme Court who had not been approved by a select committee whose chairman was Appellate Justice Bernard Botein. The politicians tricked him shamefully and Plimpton—certified by Califano as a “tiger” in the opposition to Carswell—could in this case offer no other resistance than ironic public comment when the party organization elevated to the bench a Bronx Democrat who had once barely escaped indictment for withholding his knowledge of a bribe in a narcotics case.

Judgeships, besides their occasional value at auction, are useful to party leaders for disposing of inconvenient persons. When the mild and easygoing former Borough President Frank O’Connor was chairman of the New York Humphrey campaign and showed too little of the elan required for that desperate venture, the Democrats, the Tolchins note, got rid of him by making him a judge.

There is also the case of Democratic State Assemblyman Stanley Steingut, whose curious ambition it was to be leader of his party’s delegation in Albany, as his father had been before him. His ascension was blocked by minority leader Anthony Travia, so Steingut got the late Senator Kennedy to make Travia a federal judge. But no sooner had Steingut cleared the road than it was barred again, when his delegation, insensitive to hereditary property rights, elected Moses Weinstein as their leader. After a year or so, Steingut finally unseated Weinstein and had his dream; but thanks to the grace toward the fallen which prevails in these matters, Weinstein himself was awarded a state judgeship. Thus two judges owe their seats and we owe an incalculable amount of future legal history to Assemblyman Steingut’s urge to re-create himself in his father’s image.

As a reformer, Mayor Lindsay has occasionally urged the bar to help him “expel this sordid compound of privilege and patronage” and has appointed a committee of its notables to help him improve the caliber of his judicial appointments. Yet Lindsay has since given few signs of being less offhand than any other mayor about burdening the courts with judges whose most visible qualification is the importunity of their patrons or the exhaustion of their usefulness as functionaries in his administration. He does appear to have been more prone than his predecessors to appoint to the criminal courts judges who had previously served as assistants in the office of District Attorney Frank Hogan, who most usefully intervened in the mayor’s re-election campaign.

Mr. Lindsay, with a few exceptions, has done little to improve the criminal bench, unless, of course, we are to assume that the only thing wrong with our system of criminal justice is that not enough of its judges used to be prosecuting attorneys.

A most persuasive criticism of the state of New York’s criminal courts is Criminal Justice by Abraham S. Blumberg (Quadrangle, 1967). Blumberg notes a marked contempt among criminal judges for their function and an envy of those who sit in civil courts: Criminal judges “will recount fondly their exploits on those occasions when they sat as civil judges, jousting with socially important litigants and their attorneys.”

The more prestigious ornaments of the mayor’s Committee on the Judiciary are particularly unqualified for assessing the mayor’s appointments to the criminal courts, since, if they had the will, they wouldn’t have the background to judge. The more substantial his practice, the less a lawyer is apt to know about the condition of the trial courts.

This deficiency was acutely defined by a former member of the mayor’s Committee on the Judiciary in a privately circulated memorandum criticizing its performance. “Most of the men on the Committee have little or no contact with the criminal courts,” this dissenter observed. “They neither appear there as lawyers nor do they visit the courts in aid of their function. They have little conception of how the court operates and what the judge does…. Add to this an element of wonder. They are not entirely clear why anyone would want to be a criminal judge…. A candidate who desires to be a judge has their bewildered appreciation for his willingness to accept such a thankless position.”

We need hardly be surprised then that these lawyers who volunteered to help Lindsay improve the bench can be found, in the memorandum by one of them that I have quoted, to “have consciously approved for judicial office men whom they know to be unqualified.”

Such being the custom in these matters, the Carswell story, like so many others, required the most strenuous exercises from its villain to produce the cleansing arousal of its heroes. Harris makes a convincing case for the ingenuity, the honesty, and the courage of the anti-Carswell coalition; but he is frank to say that none of these good qualities availed their cause as much as Mr. Nixon’s bad ones. It seems to be the President’s habit never to confront an unconquered garrison without treating it as already subjugated territory. He had, in this case, sound reasons for this misplaced confidence. He understood that for most swing senators their vote against Judge Haynsworth had been an excursion rather deeper into spiritual motivation than was comfortable, and that their mood was to swallow almost any nominee he gave them. It became then his pleasure to force upon them the most distasteful dose possible. Since he judged that he could not lose, he chose Carswell so as to be sure, as Rauh said, that he would “win with opposition from the same people who had fought him on Haynsworth.”

“I learned that the Justice Department had rated Carswell way down below Haynsworth and a couple of other candidates,” one of those Republicans whom the President had assumed would have to gulp down any cup said after he refused to do so. “That made it clear that the choice of Carswell was vengeance—to make us sorry we hadn’t accepted Haynsworth—and, at the same time, it was an attempt to downgrade the Supreme Court.”

Invigorating though Harris’s narrative is, it is hard not to suspect that the critical votes came from senators who judged the President disdainful of the welfare of the Supreme Court from the evidence of his plain contempt for their own welfare. It is an abiding curiosity about Mr. Nixon that, in spite of years of deference to the opinions of Republican convention delegates, who are amateurs, he should remain so insensitive to the necessities of the Republican officeholders, who are professionals. It is his posture to expect loyalty with no disposition to return it. But the system the Tolchins describe owes its endurance to the mutuality of interest which it operates to safeguard: the leader does not, from mere whim, embarrass his followers.

The Tolchins recall the balance of the system as it was cast by Speaker of the House Sam Rayburn, one of its great brokers, when he said,

“Anybody [in Congress] who tries will find a way to go along with his leaders 60-70 percent of the time,”…and thereby obtain for his district the dams, defense contracts, tax advantages, architects’ fees, model cities, job patronage, and other government largesse that many members say privately are more crucial to their careers than their voting records.

Still, Speaker Rayburn, it will be noticed, reserved to each member who went along the right to put his constituents ahead of his leaders at least 30 percent of the time.

But Nixon, as the Tolchins observe, early on showed that he “expected the impossible from senators, especially those from states with large constituencies with black and labor groups, when he demanded party loyalty above political survival.” It would follow, of course, that a leader who, out of pique, would thus jeopardize the necks of his followers for the sake of his bad principles, would set them to thinking about their own good ones. Mr. Nixon’s obvious disregard for their sensibilities was a powerful suggestion that nothing is sacred to him.

Harris recalls for us the scene when Senator Griffin, the Republican whip, in his torment, begged the President, in his torment, to withdraw the Haynsworth nomination.

“But he just couldn’t get the idea across,” a man who was close to Griffin said later. “Nixon simply doesn’t understand the gut feeling that the Court is sacred and must not be used for political ends.”

For the Supreme Court has become sacred to senators, if only because nothing else is.