A Question of Ethics

The Senate has long exercised its right of advice and consent to question nominees for the U.S. Supreme Court on their qualifications and their opinions. Last week the members of the Senate Judiciary Committee broke some new ground as they opened their hearings on President Nixon's nomination of Judge Clement F. Haynsworth Jr. They raised a question of ethics.

As a Southerner and a strict constructionist, the South Carolina jurist expected opposition in his fight for Senate confirmation. Liberals and civil rights activists are upset by his go-slow attitude on integration, and union leaders by what they consider his anti-labor stand. Roy Wilkins, in a statement for the Leadership Council on Civil Rights, asserted that Haynsworth's confirmation would "throw another log on the fires of racial tension." A.F.L.-C.I.O. President George Meany testified that he was "not fit to be an Associate Justice of the Supreme Court."

Conflict of Interest. The most damaging allegations, however, concerned the Appellate Court judge's failure to remove himself from cases in which he may have had a financial interest. Led by Indiana's Birch Bayh, liberal committee members charged Haynsworth with conflict of interest for not disqualifying himself from a 1963 trial involving the Textile Workers Union and a firm that did business with a vending-machine company in which he had a one-seventh interest.

Haynsworth was ready to defend himself against all charges. He said that he agreed with Supreme Court rulings outlawing separate but equal education and upholding the right of indigent defendants to counsel. But he declined to go into detail on these issues on the grounds that his comments could hinder him if he should actually sit on such cases. He did, however, rebut the conflict-of-interest charge vehemently. Stuttering slightly, he not only denied any impropriety, but also held that since his company was not directly involved, he in fact had an obligation not to disqualify himself from the textile-company case.

Moral Sensitivity. Haynsworth's backers supported his contention, and even introduced a 1964 letter from then-Attorney General Robert Kennedy clearing him of any conflict of interest. Edward Kennedy's statement to the committee that the letter was based on incomplete information tended to lessen its impact. But Senate conservatives stuck to their position, and received support from at least two members of the influential American Bar Association. Lawrence Walsh, a former federal judge and deputy attorney general, and chairman of the A.B.A. Committee on the Federal Judiciary, told the Senate that he saw no conflict in Haynsworth's action. John Frank, a liberal Democrat who serves on the Advisory Committee on Civil Procedure of the Judiciary Conference, stated flatly that "there was no legal ground for disqualification."

Haynsworth may not find bipartisan support quite as forthcoming as he tries to reply to a second allegation. The Judiciary Committee has learned that the judge, who sat on a 1967 case involving the Brunswick Corp., bought stock now valued at $18,000 between the time of the argument and the release of the decision in favor of the company. His friends see nothing wrong with his purchase and point out that he was only one of 48 who bought Brunswick shares from the same broker at the time. They also note that no substantial price fluctuations occurred between the decision and its disclosure, and that the $130,000 involved in the case was hardly significant to Brunswick, which at that time had annual revenues of nearly $400 million.

Although the disclosure raises new questions about Haynsworth's moral sensitivity, it has not shaken his supporters' confidence in his ultimate confirmation. But those less committed to his appointment are beginning to waver. Whether or not Haynsworth is actually in conflict of interest, his actions have at least raised the appearance of conflict. As the Canons of Judicial Ethics point out, a judge should avoid even actions that arouse suspicion.

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