Nixon Makes a Winning Choice

THE Senate's rejection of two consecutive Supreme Court nominees made most of Washington jittery about predicting how President Nixon's third choice would fare. Certainly, if only in a show of consistency, the Senators will carefully examine the credentials of last week's nominee, Minnesotan Harry A. Blackmun. Barring any disclosures of judicial misbehavior, the general approval greeting the nomination makes it all but certain that the President has finally come up with a winner.

The Democratic liberals and Republican moderates who effectively blocked Clement Haynsworth and G. Harrold Carswell show no signs of objecting to Blackmun. Even Joseph Rauh Jr., vice chairman of Americans for Democratic Action and a slashing foe of the first two nominees, conceded last week that "President Nixon's nomination at long last of a judicial moderate validates the liberal efforts against Judges Haynsworth and Carswell." Civil rights groups also seem pleased with Blackmun. John Pemberton Jr., executive director of the American Civil Liberties Union, praised the 61-year-old federal judge as a man with "a capacity for objectivity and fairness in the highest degree, combined with a high intellect and sharply honed legal mind."

A Reverence. So far, the only one who has expressed serious doubts about confirmation has been, surprisingly, the judge himself. He told TIME Correspondent Frank Merrick that he has "the utmost respect, almost a reverence," for the Supreme Court and that any man who sits on it, "ought to be without sin." What troubles Blackmun is that in searching back through the 900 cases he has handled as a federal judge since his appointment in 1959, he found three in which he had rendered decisions, although he held a small stock interest in companies involved in the litigation. Blackmun brought those cases to the attention of President Nixon before his nomination was announced.

Two of the cases involved the Ford Motor Co. He had bought 50 shares of Ford stock for about $2,500 in 1957, before becoming a judge. In 1960 he helped decide a case against Ford, reinstating a $24,500 damage verdict a lower court had dismissed. In 1965 he was on a panel of judges that agreed with a district court in setting aside a $12,500 verdict against the company. He also bought 22 shares of A.T. & T. stock in 1963 and 1964 for about $1,350, and in 1967 he and several colleagues upheld a lower court decision dismissing a suit against Northwestern Bell Telephone Co., an A.T. & T. subsidiary, on grounds that the suit had been filed in the wrong court. After the senatorial criticism of Haynsworth's sitting on cases in which he might have had a financial interest, Blackmun last January excused himself from a Ford case to which he had been assigned. Blackmun says that now he feels he was wrong in taking those earlier cases, small as they were, but considers it hindsight. "In the more tense atmosphere of recent years, we don't do this."

On His Merits. There is little likelihood that Blackmun will be criticized for his judicial philosophy or specific decisions. Liberals may wish that he had shown more willingness to break new judicial ground; he has tended to shy away from interpretations of law not already sanctioned by the Supreme Court. On the highest bench, there can be no passing the buck, and most observers expect Blackmun to prove a highly independent justice. The court has yet to pass upon one of his most significant decisions: his refusal in 1968 to overrule the death sentence of an Arkansas black convicted of raping a white woman. The defendant raised some basic and complex questions about the procedures under which juries can apply a death penalty. Blackmun described his decision as "excruciating" because he "is not personally convinced of the rightness of capital punishment." The fate of some 500 inmates now condemned to death awaits the outcome of a Supreme Court ruling in this case.

If Blackmun is confirmed, it will be due mainly to his merits, rather than any lessons the Administration has learned in how to put a nominee across. Once again, the selection was almost solely the work of the President and his battered adviser, Attorney General John Mitchell. Nixon and Mitchell did not consult Senators or the American Bar Association in advance, although the selection was announced to a few key Senators shortly before the press was informed. But this time Nixon personally met the nominee and chatted with him for 45 minutes before deciding on him. Despite widespread criticism of his role in selecting nominees, Mitchell seems outwardly undisturbed. As he spun a wheel of chance to select Washington's 1970 Cherry Blossom Queen, the Attorney General managed a small joke: "I have a very good idea how we're going to get the next Supreme Court nominee."

The choice of a Northerner prevents any immediate test of Nixon's claim that the Senate would not have accepted a Southerner who is a "strict constructionist." There seems little doubt that a Southerner of Blackmun's caliber and philosophy could be confirmed. Many Senators were still bitter last week about the President's charge that they had acted out of regional prejudice. The first evidence of the practical impact of these strained relations could possibly come when the Senate takes up Nixon's plan to expand the ABM program. The animosity did not rub on the House of Representatives last week, where Nixon's pioneering reform of the nation's welfare policies passed handily with a bipartisan majority, 243-155. But the drive in the House by Southern Democrats and Republicans to impeach Justice William Douglas (see following story) looked like a retaliatory move by Carswell supporters and further embittered the controversy over the court.

The Nixon Tactic. Whether Nixon's attack on the Senate was politically shrewd may not be clear before the November elections. Nixon seems to have scored a few points with some Southerners by championing that region's cause. But not all of the South buys the President's pitch. The Atlanta Journal acidly dismissed the Administration's Southern strategy as "cynicism of the first order." Duke University Law Professor William Van Alstyne called the President's stand "a tawdry and desperate gambit," an attempt to "patronize the South" and "a direct insinuation that we have a lack of talent who would get Senate approval."

Nevertheless, the Nixon tactic puts political heat on Southern Senators who voted against Carswell. It could give the Republicans a better chance to unseat Democrats Albert Gore of Tennessee and Ralph Yarborough of Texas and to fill the seat of the retiring Spessard Holland of Florida. To take control of the Senate this year, the G.O.P. must gain seven seats. But Republicans will have trouble holding some of their own, most notably seats in Vermont, Illinois and New York. Just how the Nixon stance on the court will fare outside the South is debatable. Republican National Committee Chairman Rogers Morton, for one, contends that "it certainly is not going to be a national issue." It could, however, possibly strengthen the conservative vote against some Democratic Senators elsewhere.

The harshness of the Nixon oratory could be simply a bold political gamble. He is well aware that if his party cannot gain control of the Senate this year, its chances of doing so while he is President are negligible. One reason is that 25 Democratic Senators face re-election or are retiring this year, in contrast with only ten Republicans. In 1972, when Nixon presumably will be seeking another term, only 14 Democrats will be vulnerable, compared with 19 Republicans. And in 1974, 18 Democrats and 16 Republicans will face voters, giving neither party an advantage. If Nixon is to acquire a more compatible Congress with which to work, it is likely now or never.

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