The Mediocrity Factor

Judge G. Harrold Carswell and his defenders, in responding to the most provocative attacks made on him, insist that he is no racist. Even granting him the point, is that negative credential sufficient qualification for serving on the U.S. Supreme Court? While much of the argument over Carswell's nomination has centered on his questionable civil rights record, an increasing number of legal scholars and Senators are asking whether he has the kind of legal mind that would enhance the nation's highest court.

As they dig into his background, the critics are finding the resume of an affable, conventional Southerner, who gazes past the azaleas and well-trimmed lawns of his Tallahassee mansion at the nation's rebellious blacks with a lack of concern. His now-repudiated racist speech in 1948 could even conceivably have been an automatic acquiescence to a regional political ritual. He helped convert a Tallahassee public golf course threatened with integration in 1956 into a private club, once bought land that carried a racially restrictive deed, and served as a director of a housing corporation for a Florida State University fraternity that excluded blacks. All those acts only conformed to the unfortunate facts of life in the Old South. Earl Warren, after all, once helped put thousands of Japanese-Americans into detention camps.

Slender Credentials. A more troublesome aspect of Carswell's career is his lack of distinction on the federal bench. Even one of his defenders, Florida State University's law school dean, Joshua Morse, admits: "I cannot think of a single thing of Judge Carswell's that I am familiar with." No one can cite any contribution by Carswell to judicial literature. Harvard Law Dean Derek C. Bok, seeking gentle words, says that "the public record of Judge Carswell's career and accomplishments clearly does not place him within even an ample list of the nation's more distinguished jurists." Yale Law Dean Louis H. Pollak states it more bluntly, claiming that Carswell "presents more slender credentials than any nominee for the Supreme Court put forth in this century."

Specifically, the scholars note that seven out of 24 of Judge Carswell's opinions in civil rights cases were reversed by higher courts. These critics also cite Carswell's dismissal in 1960 of the application of a federal prisoner who asked to be released from custody because he had not had legal counsel. The Fifth Circuit Court of Appeals reversed Carswell, ruling that at least a hearing on the action should have been held. Yet later on when an identical case came before him, Carswell dismissed the application --again without a hearing. "In judging a judge," contends Pollak, "one must in fairness judge him in the light of the law as it stood at the time he decided." Pollak finds that "there is very little way of explaining" Carswell's repetition of his judicial error.

Solid Alternatives. Most legal scholars do not seem to object to Nixon's desire to appoint a Southerner and a Republican to the high court or to add a strict constitutional constructionist. But there are other judges who would meet Nixon's basic criteria and yet bring an impressive legal record to the high court. They include Tennessee's U.S. District Judge William E. Miller, Virginia's U.S. District Judge Walter E. Hoffman and Stephen O'Connell, a former Florida State Supreme Court justice and now president of the University of Florida.

In spite of such rising doubts, Carswell's nomination was approved by the Senate Judiciary Committee last week, as expected, by a vote of 13 to 4. But opponents have also gained another delay of at least three weeks before the issue reaches the Senate floor. One Republican Senator who favors Carswell estimates that there might now be up to 40 votes against him. His opponents hope to persuade others, especially the key moderate Republicans, to be absent when the nomination comes up, rather than cast a vote for mediocrity. Even the Rev. Ralph David Abernathy, head of the Southern Christian Leadership Conference, has revealed that he would have much preferred the rejected Clement Haynsworth to Carswell on the ground that Haynsworth is more capable of appreciating a sophisticated argument.

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