Richard Nixon Supreme Court candidates

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President Richard Nixon entered office in 1969 with Chief Justice Earl Warren having announced his retirement from the Supreme Court of the United States the previous year. Nixon appointed Warren E. Burger to replace Earl Warren, and during his time in office appointed three other members of the Supreme Court: Associate Justices Harry Blackmun, Lewis F. Powell, and William Rehnquist. Nixon also nominated Clement Haynsworth and G. Harrold Carswell for the vacancy that was ultimately filled by Blackmun, but the nominations were rejected by the United States Senate. Nixon's failed Supreme Court nominations were the first since Herbert Hoover's nomination of John J. Parker was rejected by the Senate.

Politics

While Nixon was a candidate for president, the sitting Chief Justice, Earl Warren, had long since become a lightning rod for controversy among conservatives: signs declaring "Impeach Earl Warren" could be seen around the country throughout the 1960s. The unsuccessful impeachment drive was a major focus of the John Birch Society.^[1]

Warren E. Burger nomination

In 1968, then-

In his presidential campaign, Nixon had pledged to appoint a strict constructionist as Chief Justice. Many speculated that President Richard Nixon would elevate sitting Justice Potter Stewart to the post, some going so far as to call him the frontrunner. Stewart, though flattered by the suggestion, did not want again to appear before and expose his family to the Senate confirmation process. Also, he did not relish the prospect of taking on the administrative responsibilities delegated to the Chief Justice. Accordingly, he met privately with the president to ask for his name to be removed from consideration.^[2] Nixon also offered the position to former New York Governor Thomas E. Dewey, who declined.^[3]

Instead, in 1969, Nixon nominated Warren E. Burger to the Chief Justice position. Burger had first caught Nixon's eye when the magazine U.S. News & World Report had reprinted a 1967 speech that Burger had given at Ripon College, in which he compared the United States judicial system to those of Norway, Sweden, and Denmark:

I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity. [Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty. No nation on earth goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.

Through speeches like this, Burger became known as a critic of Chief Justice Warren and an advocate of a literal,

The Senate confirmed Burger to succeed Warren by a vote of 74—3 on June 9, 1969.

In 1969, Abe Fortas resigned from the Court due to conflict of interest charges,[5] creating an opening for Nixon's second nomination to the Court.

Nixon asked

In defense against charges that Carswell was "mediocre", U.S. Senator Roman Hruska (R-NE) stated, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?"^[9][10] That remark is believed to have backfired and damaged Carswell's cause.

On April 8, 1970, the United States Senate refused to confirm Carswell's nomination to serve on the Supreme Court. The vote was 51 to 45, with seventeen Democrats – of whom only Alan Bible of Nevada represented a state outside the South – and twenty-eight Republicans voting for Carswell.^[11][12] Thirteen Republicans, all but five from the Northeast,^[a] and thirty-eight Democrats voted against him.^[11] Nixon accused Democrats of having an anti-Southern bias as a result.

On April 15, 1970, Nixon nominated Minnesotan

Nixon thereafter announced his intention to nominate Hershel Friday to fill Black's seat, and Mildred Lillie to fill Harlan's seat; Lillie would have been the first female nominee to the Supreme Court. Nixon relented after the

William H. Rehnquist

were both nominated on October 21, 1971.

The Senate confirmed Powell by a vote of 89–1 on December 6, 1971.

Karl E. Mundt (R-SD), Charles Percy (R-IL) and Robert Stafford (R-VT) did not vote.^[19] Majority Whip Robert Byrd (D-WV) announced that, out of the absent Democratic senators, Senators Gambrell, Humphrey, Inouye and Moss would have voted to confirm Powell.^[19] Minority Whip Robert P. Griffin (R-MI) announced that, out of the absent Republican senators, Senators Bennett, Dominick, Percy and Miller would have voted to confirm Powell.^[19]

The Senate confirmation of Rehnquist, a law clerk for the late Justice

Karl E. Mundt (R-SD) and Margaret Chase Smith (R-ME) did not vote.^[20] Minority Whip Robert P. Griffin (R-MI) announced that Senator Smith would have voted to confirm Rehnquist.^[20]

With both votes confirmed, Powell and Rehnquist were sworn in on January 7, 1972.

Names mentioned

Following is a list of individuals who were mentioned in various news accounts and books as having been considered by Nixon for a Supreme Court appointment:

United States Supreme Court (elevation to Chief Justice)

• Potter Stewart (1915-1985)^[2]

United States courts of appeals

• Court of Appeals for the Second Circuit
  • Walter Mansfield^[22]
    (1911-1987)
  • William H. Mulligan^[22]
    (1918-1996)
• Court of Appeals for the Fourth Circuit
  • Clement Haynsworth^[6] (1912–1989) (Nominated but rejected by the Senate)
• Court of Appeals for the Fifth Circuit
  • David W. Dyer^[22] (1910-1998)^[b]
  • G. Harrold Carswell^[9] (1919–1992) (Nominated but rejected by the Senate)
  • Charles Clark^[17][22] (1925-2011)
  • Paul Roney^[17]
    (1921–2006)
• Court of Appeals for the Eighth Circuit
  • Harry Blackmun (1908–1999) (Nominated and Confirmed)
• Court of Appeals for the Ninth Circuit
  • Secretary of Education
    in Carter's cabinet)
• Court of Appeals for the D.C. Circuit
  • Warren E. Burger (1907–1995) (Nominated and Confirmed as Chief Justice)

United States district court judges

• Edward Thaxter Gignoux (1916-1988) – United States District Court for the District of Maine^[22]
• Frank Minis Johnson (1918-1999) – United States District Court for the Middle District of Alabama^[23]
• Cornelia Groefsema Kennedy (1923-2014) – United States District Court for the Eastern District of Michigan^[22] (Kennedy was elevated to the 6th Circuit by Carter)
• Harold R. Tyler Jr. (1922-2005) – United States District Court for the Southern District of New York^[22]

Other judges

• Sylvia Bacon (1931-2023) – District of Columbia Superior Court judge^[17][22]
• Robert Braucher (1916-1981) – Justice of the Supreme Judicial Court of Massachusetts^[22]
• Charles D. Breitel (1908-1991) – New York appellate judge^[22][23]
• Harry D. Goldman (1903-1995) – New York appellate judge^[22]
• Mildred Lillie (1915-2002) – California appellate judge^[17][22][23]
• Paul Reardon (1909-1989) – Justice of the Supreme Judicial Court of Massachusetts^[22]
• Susie Marshall Sharp (1907-1996) – Justice of the Supreme Court of North Carolina^[22]

United States senators

• Howard Baker (1925–2014) — Tennessee^[22]
• Robert Byrd (1917–2010) — West Virginia^[17][22][23]

Members of the United States House of Representatives

• Martha W. Griffiths (1912-2003) – Michigan^[22]
• Margaret M. Heckler (1931-2018) – Massachusetts^[22]
• Richard H. Poff (1923-2011) – Virginia^[22][23]

Executive branch officials

• Spiro Agnew (1918-1996) – Vice President of the United States^[22]
• William H. Brown (born 1928) – chairman of the Equal Employment Opportunity Commission^[22]
• Robert Bork (1927-2012) - Solicitor General^[24] (Nominated by Ronald Reagan in 1987, but rejected)
• William Rehnquist (1924-2005) – Assistant U.S. Attorney General^[23] (Nominated and Confirmed)
• Caspar Weinberger (1917-2006) – director of the Bureau of the Budget^[22]

Law professors

• Alexander M. Bickel (1924-1974) – professor of law, Yale Law School^[22]
• Soia Mentschikoff (1915-1984) – professor of law, University of Chicago Law School^[22]
• University of Southern California Law School^[22]
• Ellen Peters (born 1930) – professor of law, Yale Law School^[22]

Other backgrounds

• Constance E. Cook (1919-2009) – New York State Assemblywoman^[22]
• Thomas E. Dewey (1902-1971), former governor of New York and Republican presidential nominee^[3]
• Herschel Friday (1922-1994) – private attorney in Little Rock, Arkansas^[17][22][23]
• Chicago, Illinois^[22]
• Lewis F. Powell Jr. (1907-1998) – private attorney in Richmond, Virginia^[23] (Nominated and Confirmed)
• William Pullman, private attorney in
  Philadelphia, Pennsylvania^[c]
• District of Columbia^[22]
• Los Angeles, California^[22]
• Philadelphia^[22]
• Col. Arthur P. Ireland, Judge Advocate (retired), US Army

See also

• United States federal judge
• Judicial appointment history for United States federal courts

Notes

1. Marlow W. Cook of Kentucky
2. ^ Dyer would later be transferred to the newly created Eleventh Circuit in 1981, although he had assumed senior status in 1976 when Alabama, Georgia and Florida were still part of the Fifth Circuit.
3. ^ Dean later notes that "Bill Pullman from Philadelphia" was suggested by Attorney General John Mitchell because Pullman was a black Republican, but was quickly dismissed by Nixon because such an appointment would put two blacks on the court.^[22]

References

1. ^ Political Research Associates, "John Birch Society".
2. ^
   ISBN 0-671-24110-9
   .
3. ^
   ISBN 9780762784219
   .
4. ^ ^{a b c} "Roll Call – Nomination of Warren Burger" (PDF). senate.gov.
5. ISBN 978-0-300-04669-4
   . Retrieved 2008-10-20.
6. ^ ^{a b c d} David A. Kaplan (1989-09-04). "The Reagan Court – Child of Lyndon Johnson?". The New York Times. Retrieved 2008-10-20.
7. ^ "TO ADVISE AND CONSENT TO NOMINATION OF CLEMENT HAYNESWORTH, JR. TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT". VoteView.
8. ^ "Senate – November 21, 1969" (PDF). Congressional Record. 115 (26). U.S. Government Printing Office: 35396. Retrieved February 6, 2022.
9. ^ ^{a b} A Seat for Mediocrity?, Time Magazine (March 30, 1970).
10. ^ "Crony cachet". Washington Times. October 5, 2005.
11. ^ ^{a b} "TO CONSENT TO THE NOMINATION OF GEORGE HARROLD CARSWELL TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT". VoteView.
12. ^ "Senate – April 8, 1970" (PDF). Congressional Record. 116 (8). U.S. Government Printing Office: 10769. Retrieved February 7, 2022.
13. ^ ^{a b c} Roll Call – Nomination of Harry Blackmun, senate.gov
14. doi:10.1111/1540-5818.00040. Archived from the original
    on 2013-01-05.
15. ISBN 0-7432-2607-0
    .
16. ^ Ellis, Kate. "Interview with John Dean". The President Calling. American RadioWorks. Retrieved 2007-01-08. Poff ... didn't really want to put himself or his family through the controversy of being nominated and then beat up through the senate confirmation process.
17. ^ ^{a b c d e f g h i j} " "The Nation: Nixon's Not So Supreme Court". Time. October 25, 1971. Archived from the original on November 4, 2012.
18. ^ a MetNews staff writer (October 31, 2002). "Justice Lillie Remembered for Hard Work, Long Years of Service". Metropolitan News-Enterprise. Retrieved 2008-08-16.
19. ^ ^{a b c d e} Roll Call – Nomination of Lewis F. Powell, senate.gov
20. ^ ^{a b c d e f} Roll Call – Nomination of William Rehnquist, senate.gov
21. ^ "Senate – December 10, 1971" (PDF). Congressional Record. 117 (35). U.S. Government Printing Office: 46197. Retrieved February 7, 2022.
22. ^
    ISBN 978-0-7432-2979-1
    .
23. ^
    ISBN 978-0-7432-7402-9
    .
24. ^ "Bork: Nixon offered next high court vacancy in '73 - POLITICO". Politico.