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Picking a nominee is a high-risk job

Clarence Thomas, whose nomination became embroiled in sexual harassment allegations, testified before the Senate Judiciary Committee on Oct. 12, 1991.
Clarence Thomas, whose nomination became embroiled in sexual harassment allegations, testified before the Senate Judiciary Committee on Oct. 12, 1991.
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Appointing a nominee to the Supreme Court is one of a president’s chances to make history. And President Bush may get that chance if one of the nine justices steps down at the end of the current term, an announcement that many observers feel could come this week. He can put his stamp on the law for decades to come. But if the president and his search team botch the selection, the stage is set for defeat even before the nominee’s name goes to the Senate.

Since 1968, five Supreme Court nominees have been forced to withdraw under fire or have been rejected by the Senate, while 11 have been confirmed.

Each of the five failures might have been avoided with more prudent screening by the officials charged with checking the backgrounds of candidates.

Did President Nixon’s attorney general, John Mitchell, who had almost sole charge of the search for a new justice in 1969, not know about nominee Harold Carswell’s speech from 20 years earlier in which he’d declared “I yield to no man... in the firm, vigorous belief in the principles of white supremacy, and I shall always be so governed”?

“I found evidence that Nixon’s people were unaware” of Carswell’s speech, said University of Connecticut historian David Yalof, author of Pursuit of Justices, an extensive study of how presidents select Supreme Court nominees.


“The Nixon Supreme Court screening team consisted of John Mitchell — who occasionally asked for help from [now Chief Justice William] Rehnquist [a top Justice Department official from 1969 to 1971] or others in the Justice Department,” Yalof said.

Mitchell, Nixon’s former law partner from New York, was a political novice who proved to have no intuitive feel for how the capital worked.

The Senate’s rejection of Carswell came on the heels of its vote to defeat Nixon’s first nominee, South Carolina federal appeals court judge Clement Haynsworth, who had two strong Southern Democratic supporters in the Senate, Fritz Hollings of South Carolina and James Eastland of Mississippi.

Haynsworth’s opponents accused him of a conflict of interest for having bought shares in a company that was a party in a case he had ruled on as a judge. After the Senate killed the Haynsworth nomination, Nixon blamed Mitchell for “not having all the facts” and for “coasting on assurances from Eastland and Hollings instead of really working” to make sure the nominee would be confirmed.

The battle over President Reagan’s 1987 nomination of Robert Bork, a federal appeals court judge, former Yale Law School professor and a hero to conservatives, drove the confirmation process to new depths of bitterness.

To some degree, Bork was the victim of a shift in the political winds — the Democrats has regained control of the Senate six months before Reagan nominated him.

Sen. Ted Kennedy, D-Mass., led the crusade to defeat Bork with the allegation that if Bork had his way “women would be forced into back-alley abortions”


Bork himself had a hand in bungling the nomination. He did not realize that winning a seat on the high court had become a political campaign. Bork had to run for the office and he did not appear to know how to do it.

He had the difficult task of explaining 25 years of conservative articles and legal decisions to skeptical senators such as Republican Arlen Specter of Pennsylvania. Bork could have used expert advice on how to make his case to the Judiciary Committee, how to frame his arguments to win public support.

Some Reagan officials were overconfident, having underestimated the ability of anti-Bork groups such as People for the American Way to mobilize opposition to his nomination.

Other Reagan aides were intimidated by Bork, reluctant to tell him he must prepare for the Senate grilling by going through practice sessions called “murder boards.”

Bork came across during his hearings as scholarly and chilly. “Robert Bork viewed the confirmation process as the greatest possible classroom he could ever have,” said Yalof. “That was absolutely the wrong approach. Senators don’t want to be lectured to.”

Toward the end of the ordeal, with Bork’s nomination on the verge of defeat, Reagan aide Thomas Griscom advised him to agree to an interview with ABC’s Barbara Walters in an attempt to soften and humanize his image. Bork rejected the idea on the ground that it would be beneath his dignity.

Once the Senate voted down Bork’s nomination, Reagan aides scrambled to find a replacement. A staunchly conservative appeals court judge, Douglas Ginsburg, was found. Reagan relished the fact that if confirmed Ginsburg, then only 41 years old, would serve on the court for decades.


“They were in a hurry,” explained Yalof. “There was an election year coming up” and no election year nominee had been confirmed since 1956.

Yalof said there is still dispute about why Ginsburg did not tell Reagan’s search team he’d smoked marijuana on several occasions as recently as the late 1970s while teaching at Harvard Law School. Through either a failure to ask searching questions or Ginsburg’s failure to tell all about his past, the marijuana use slipped by — until National Public Radio and the Washington Post reported it. Ginsburg then asked that Reagan withdraw his nomination.

Reagan reverted to the second back-up, federal appeals judge Anthony Kennedy, who, once on the high court, proved to be a distinct disappointment for conservatives in his decisions on abortion, gay rights and school prayer.