Borking Started Before Bork

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tags: Supreme Court, SCOTUS, Nixon, Clement Haynsworth

Dr. Justin P. Coffey is an Associate Professor of History at Quincy University in Illinois.

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On March 15 the Washington Post published an op-ed by retired U.S. District Court Judge James Robertson. In the article Robertson laments the role he played in helping defeat Robert Bork’s nomination to the United States Supreme Court. Robertson writes “I regret my part in what I now regard as a terrible political mistake. While the nation did wind up with a much more acceptable choice the treatment of Bork touched off a Thirty Years’ War on judicial appointments.”

Robertson should be commended for apologizing for his role in the smear campaign against Bork. Robertson, however, is wrong about the judicial war over Supreme Court nominees. “Borking” did not actually begin in 1987 when Ronald Reagan selected Bork for the Court, instead, it started in when Richard Nixon picked Clement F. Haynsworth Jr. to fill a Supreme Court vacancy. Haynsworth’s nomination sparked a battle that ended with the Senate rejecting his confirmation. His defeat had nothing to do with his qualifications for the nation’s highest court. Instead, the senate’s rejection was the result of a coordinated campaign to besmirch him, with his opponents employing methods that have become standard operating procedure for the Left.

As Senate Democrats prepare to go to war to block Neil Gorusch’s nomination to the Supreme Court, it is instructive to see how (unfortunately) successful the Left has been. Beginning in the Nixon administration, when the Senate rejected two of Richard Nixon’s appointees, the Democrats and their left-wing allies have resorted to using dishonest and underhanded tactics in an effort to block conservatives from serving on the Supreme Court. With the Supreme Court currently being deadlocked in 4-4 split, Gorusch’s vote on the Court would determine policy on the key issues facing the country. Given the momentous implications of a Gorusch confirmation, the Left will stop at nothing to block him. History shows they could succeed.

Their efforts began nearly five decades ago. During the 1968 presidential campaign, Richard Nixon had pledged that his appointments to the Supreme Court would take the Court in a different direction. Many Americans were upset with the Warren Court because of its judicial activism and Nixon pledged that he would nominate “strict constructionists.” His first nominee to the Court was Warren Burger, whom Nixon named to replace Chief Justice Earl Warren. Somewhat surprisingly, given that Burger was replacing Warren as the Chief Justice, the nomination ran into very few hurdles and the Senate voted 74-3 to confirm Burger.

The Haynsworth choice started the judicial wars. The tactics his opponents used were just as scurrilous as those that would be employed against Bork. Even his critics could not question his qualifications. A graduate of Harvard Law School, Haynsworth practiced law in his native South Carolina before being appointed to the federal bench in 1957; in 1964 he was named Chief Judge of the 4th U.S. Circuit Court of Appeals. He had a distinguished record on the court and his decisions were commended for their clarity and thoughtfulness. Nixon’s nomination drew praise from many quarters. Lawrence Walsh, representing the American Bar Association’s Standing Committee on the Federal Judiciary, announced that the committee supported the nomination.

Because there was no use denying his credentials, Haynsworth’s opponents launched an ad hominin attack. The first line of attack against Haynsworth was dredging up an old conflict-of-interest charge against him. While he was serving on the Fourth Circuit, Haynsworth heard a case involving a company in which he owned stock and the court issued a ruling that benefitted the company. When questions arose about his role in the case, Haynsworth himself requested an investigation. The Justice Department formally looked into the matter and Attorney General Robert F. Kennedy wrote that charges of impropriety against Haynsworth were “without foundation.” Kennedy said he had “complete confidence in Judge Haynsworth.”

Most Senate Democrats ignored RFK’s opinion and used the conflict-of-interest charge against Haynsworth as a reason to vote against him, including Bobby Kennedy’s younger brother, Senator Edward Kennedy of Massachusetts. Haynsworth’s critics charged that he was not just unethical but racist. During his time on the 4th Circuit Court he had made several rulings that upheld segregation laws, particularly in public schools cases. Haynsworth did not deny making the rulings but when asked at his confirmation hearings if he had changed his mind regarding segregation, he replied “Haven’t we all?” Haynsworth’s decisions were wrong but he was no racist. His enemies successfully portrayed him as one, though.

The attacks against Haynsworth worked. On November 21, 1969, the Senate voted 55-45 to reject the nomination. In his memoirs Nixon described his meeting with Haynsworth following the vote. He described Haynsworth as “a quiet, refined, and extraordinarily kind man.” Later that night Nixon wrote: “Haynsworth was the victim of forces he probably did not understand.”

Nixon was right about that. A coordinated effort on the part of liberal organizations defeated Nixon’s choice. Haynsworth was not unethical, nor was he a bigot. The true reason he failed to win confirmation was because of his ideology. Liberals feared his strict constructionism and decided that destroying him personally justified the end of keeping him off the Supreme Court. The same thing happened with Robert Bork. Then the Left went after Clarence Thomas.

Judge Haynsworth served on the 4th Circuit until his retirement in 1981. By the time he retired, many recognized how unfairly he had been treated. In 1983, the federal building in Greenville, South Carolina was renamed in his honor. One of the speakers at the ceremony was Supreme Court Justice Lewis F. Powell Jr., who said the Senate's rejection was "purely political" and that an "injustice was done" by the vote. Unfortunately, the shameful way Haynsworth was treated would be repeated over and over again.

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