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Partisanship Takes the Driver's Seat

The year was 1969 and newly elected President Richard M. Nixon would be given the opportunity to name his second appointee to the United States Supreme Court. In early May of that year Life Magazine had carried a story alleging that shortly after joining the Supreme Court, Abe Fortas had received $20,000 payment from the Wolfson Family Foundation. The foundation had been started by Louis Wolfson, a felon convicted of SEC violations. On May 14, Abe Fortas would relinquish his seat on the Court and history would remember him as the first Supreme Court justice to resign under allegations of improper conduct.

Before picking Fortas' replacement, Nixon (who had narrowly won his election partially on a campaign against the liberal rulings of the Warren court) would first nominate Minnesotan and D.C. Court of Appeals Judge Warren E. Burger to be Chief Justice on May 21. Ironically the Chief Justice seat was the very seat that Nixon's predecessor, LBJ had unsuccessfully attempted to name Abe Fortas to. And with Abe Fortas' resignation of his own seat, President Nixon now had an additional vacancy to fill. On August 18, after Warren Burger's successful confirmation (with only 3 dissenting votes), he would name Clement F. Haynsworth, Jr. to be Abe Fortas' replacement.

Clement Haynsworth, Jr., a registered Democrat who had been voting for Republicans for national office since 1964, was born in Greenville, South Carolina. He'd graduated Summa Cum Laude from Furman University in 1933 and from Harvard Law School in 1936. In 1957, President Eisenhower named him to the Fourth U.S. District Court of Appeals. By the end of his career, he would serve with distinction as chief judge on this court for 17 years and would write more than 500 majority opinions.

But at the time of his announcement, the response was cataclysmic: almost immediately left leaning civil rights and labor groups attacked Judge Haynsworth -- allegedly based on his judicial record up to that point. A careful reading of Haynsworth's record showed that he was no opponent of minority civil rights but in at least six instances (three of which had been overturned by the Supreme Court) he had rule against racial minorities. On the other hand, conservatives in the Senate saw little in his record that would assure them that he was truly a strict constructionist.

Combined with Senate Republican Leader Everett Dirksen's tragic death following cancer surgery on September 7, 1969, the odds were against Judge Haynsworth. Senator Dirksen's death prevented President Nixon's greatest potential ally in the Senate from being be available to bail out the nomination. And because the funeral caused the confirmation to be delayed, those arrayed against Haysnworth had even more time to plan his defeat.

Haynsworth's Senate opponents would use this time well. For the first time, sitting members of the United States Senate would invite and work actively with outside organizations to torpedo this nomination. Led by liberal Senator Birch Bayh of Indiana, they organized the first media campaign. This campaign was designed solely to make the debate a public affair rather than the private cloistered Senate matter that Supreme Court confirmations had traditionally been.

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