Nixon's Not So Supreme Court

WITH the death of Justice Hugo Black and the simultaneous retirement of Justice John Harlan, President Nixon had an unusual opportunity to redress the embarrassment of his two unsuccessful Supreme Court nominations-- G. Harrold Carswell and Clement F. Haynsworth. Surely he must now avoid renewed humiliation by proposing Justices of impeccable credentials and unquestioned eminence. But last week, when the names of six potential appointees, including two women, were made known, Richard Nixon once again demonstrated his inability or unwillingness to nominate renowned jurists to the highest tribunal in the land.

That the President was opting for mediocrity and playing politics at the same time became obvious when the White House first floated the name of U.S. Senator Robert Byrd of West Virginia. Nixon would be hard-pressed to find a candidate less qualified than Byrd or one more certain to touch off bitter controversy around the country--if not in the Senate, where Byrd replaced Teddy Kennedy as Democratic whip this year.

Eat Crow. An organizer for the Ku Klux Klan in the '40s, an affiliation he has since recanted, Byrd, 53, has a less than statesmanlike record in the Senate. There he has consistently sided with Southern conservatives on civil rights issues and is noted for his "industry" rather than his legal erudition or constitutional insight. Indeed, he has never practiced law. He earned his law degree in 1963 by studying at night, and has yet to pass a bar examination. Even Attorney General John Mitchell demurred when Byrd's name was raised. But one account has it that Treasury Secretary John Connally, Democrat and close presidential confidant, thought that nominating Byrd would be a master stroke and urged Nixon on.

Connally's thesis, reportedly, was that picking Byrd would make the Senate eat crow. After rejecting Haynsworth and Carswell, it would now be faced with rejecting one of its own members. Even Byrd's Senate critics would find themselves in a corner. Connally argued that the Senate would have to approve him because he was a member of the club. The assessment was probably correct. A quiet Administration nose count indicated that fewer than ten Senators would vote no.

As speculation--and dismay--over a Byrd nomination spread, however, White House sources began insisting that he was not a serious candidate. Yet his name appeared on the list of potential appointees submitted to the American Bar Association last week. The others:

HERSCHEL H. FRIDAY, 49. "For once Nixon has not latched on to a raving incompetent " says Philip Kaplan, a civil rights attorney who has opposed Friday many times in court. "But still, he's the wrong man for the wrong job at the wrong time." Friday is a smiling but unprepossessing lawyer whose firm is the leading legal defender of segregation in Little Rock public schools. Admits former Arkansas Governor Winthrop Rockefeller: "There are other people I would have thought of first." Friday, a Democrat, is a friend of Attorney General Mitchell, a fellow expert on municipal and corporate bond law.

MILDRED L. LILLIE, 56. Neither feminists, Democrats nor the Los Angeles legal establishment is pleased with the prospect that Mrs. Lillie, a California state appeals court judge since 1958, may become the first woman Supreme Court Justice. A warm personality, she is not known as a judicial thinker, and even her admirers admit that she seems to go out of her way to interpret the law against criminal defendants. Says U.C.L.A. Law Professor Melville Nimmer: "She has no analytical ability, no depth in framing and perceiving legal issues. Her reputation among law professors and attorneys ranges from mundane and average to something below that."

PAUL H. RONEY, 50. Appointed by Nixon to fill G. Harrold Carswell's seat on the Fifth District Court of Appeals in Florida, Roney has not served as a judge long enough to establish a reputation. A former member of the board of governors of the Florida Bar Association, he had no prior judicial experience. Still, he does not seem to have Carswell-style racist skeletons in his closet. At the time of his appointment, according to a Florida civil rights worker, "we did everything we could to find something on the man, and we couldn't come up with a damn thing."

CHARLES CLARK, 46. Also a Nixon appointee to the Fifth Circuit Court, in 1969, Clark likewise had no earlier experience on the bench. In 1962, as special assistant to the Mississippi attorney general, he successfully defended Governor Ross Barnett on contempt charges for forcibly resisting the admission of James Meredith to the University of Mississippi. Civil rights advocates consider him a moderate Southerner.

SYLVIA BACON, 40. As a Justice Department aide, she helped draft the District of Columbia's controversial no-knock crime bill. Miss Bacon was appointed to her first judgeship seven months ago, and now serves on the D.C. superior court. She is a graduate of Vassar and Harvard Law School. Associates say that she is independent and capable of defining a problem in "very precise terms." Despite her conservatism, she served under Ramsey Clark and helped draft legislation for court reform in the District of Columbia.

In submitting a list of candidates to the A.B.A. one week before he is scheduled to announce which two of the six he will nominate, the President has evidenced disregard for the organization's opinion. A week is hardly enough time for the seven-man committee on federal judiciary to investigate the legal, financial and ethical background of five virtually unknown individuals or even a U.S. Senator. For that matter, White House aides said last week that Nixon may go beyond the six-man slate for his choices and could be considering as many as 15. Of the six he named last week, however, Friday and Mrs. Lillie seem to have the edge.

Perhaps more important, the caliber of the President's prospective appointees re-emphasizes his disdain for the court, The President has every right to name Justices who he expects will reflect his constitutional philosophy, but there is no shortage of better-qualified judicial talent among both Southern and women jurists. Unhappily, not one of Nixon's candidates has attained or even approached judicial distinction.

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