The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
James E. Clayton, a judge's son who in 1960 became The Washington Post's first full-time U.S. Supreme Court reporter and later wrote stinging editorials that helped deny federal judge G. Harrold Carswell a seat on the high court in part because of his troubling record on civil rights, died Oct. 16 at a hospital in Arlington, Va. He was 87….
Mr. Clayton … soon began writing for The Post's editorial page. His most distinguished work focused on Carswell, lambasting his legal record and personal judgment and denouncing his suitability for the most powerful court in the land.
The seat on the high court had been vacated in 1969 after associate justice Abe Fortas had been forced to resign amid accusations of financial impropriety, including the acceptance of a secret retainer of $20,000 from a foundation tied to a Wall Street financier convicted of securities violations.
President Richard M. Nixon's first nominee, federal judge Clement F. Haynsworth Jr., was rejected by the Senate, by a 55 to 45 vote, after protests from labor and civil rights groups on his legal record.
Nixon next proposed Carswell, another conservative Southerner, who sat on the U.S. Court of Appeals for the 5th Circuit. Reporters uncovered old speeches in which Carswell promoted segregation and white supremacist views and noted his ownership and sale of land in Florida with a "whites only" covenant. Women's activists highlighted what appeared to be his unsympathetic views toward female litigants. Legal peers also questioned his qualifications and noted his inordinately frequent reversals by higher courts….
"The evidence in this case is so strong, the record so clear that there should not be the slightest qualms in the Senate about rejecting this nomination outright," Mr. Clayton wrote in one editorial. In other, he added: "To confirm him would be to send yet one more signal of indifference at best, and contempt at worst, not just for minorities already short on hope, but for values and institutions which are in urgent need of more, not less, respect."
The Carswell nomination was, obviously, well before my time, but my sense is that the Haynsworth/Carswell episode was something of a landmark in recent Supreme Court history (the first time that Supreme Court nominations failed since Herbert Hoover's 1930 nomination of John Parker, not counting the special case of Abe Fortas's proposed promotion to chief justice).