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Exchange of Letters With Senator William B. Saxbe on the Nomination of Judge G. Harrold Carswell to the Supreme Court.

April 01, 1970

Dear Bill:

Your letter of March 30 provides me a welcome opportunity to reaffirm my confidence in Judge Carswell.

First, let me dispel any thought that I am less committed to Judge Carswell than to any prior nominee. He has my total support.

I have consistently stated my determination to appoint to the Supreme Court competent, experienced men who are sensitive to the role of the judiciary in interpreting the Constitution and the laws of the land. My first appointee, now the Chief Justice, had 13 years previous experience in the Federal judiciary. Judge Carswell has had longer and more complete judicial service than any Supreme Court appointee in decades other than Chief Justice Burger. Judge Carswell was for 5 years a U.S. Attorney and for 11 years a U.S. District Judge. Appointment to both positions required Senate confirmation. Just a year ago the Senate again confirmed him, without a single opposing vote, for membership on the U.S. Court of Appeals for the Fifth Circuit, which is subordinate only to the Supreme Court in the Federal Judicial System. The American Bar Association Committee on the Federal Judiciary found Judge Carswell qualified as to integrity, judicial temperament and professional competence. The Committee met a second time after attacks were mounted against the Judge and unanimously agreed to adhere to its earlier conclusion.

The charges against Judge Carswell are specious. He is accused, for example, of "lack of candor." The record shows that during his testimony before the Senate Judiciary Committee, Judge Carswell erred in attempting to recall an incident that had occurred 14 years earlier. During the same hearing, only minutes later and on his own initiative, he corrected his own statement. The Committee, in reporting the nomination, did not suggest that Judge Carswell had intended to deceive or mislead the Committee in any way.

It is also charged that Judge Carswell is a "racist." In the Committee record a letter appears from a shipmate of Judge Carswell, who served with him aboard the USS Baltimore for two years during World War II, a period when the military services were racially segregated. The shipmate describes Judge Carswell's attitude as "truly humanistic and liberal" and reports that he reacted to people without bias, regardless of race or color. Two men, together under the tension of combat, come to know one another as few others do.

In other testimony before the Committee, the eminent Professor [James William] Moore of Yale Law School describes Judge Carswell's key role in establishing an integrated, highly successful law school at Florida State University.

Those who charge that Judge Carswell is a racist should examine the entire record, not just those parts which taken out of context support the conclusion that they wish to reach. His own repudiation of his 1948 campaign statement was eloquent and unequivocal, and no decision he has rendered can be fairly labeled "racist" in any respect.

What is centrally at issue in this nomination is the constitutional responsibility of the President to appoint members of the Court--and whether this responsibility can be frustrated by those who wish to substitute their own philosophy or their own subjective judgment for that of the one person entrusted by the Constitution with the power of appointment. The question arises whether I, as President of the United States, shall be accorded the same right of choice in naming Supreme Court Justices which has been freely accorded to my predecessors of both parties.

I respect the right of any Senator to differ with my selection. It would be extraordinary if the President and 100 Senators were to agree unanimously as to any nominee. The fact remains, under the Constitution it is the duty of the President to appoint and of the Senate to advise and consent. But if the Senate attempts to substitute its judgment as to who should be appointed, the traditional constitutional balance is in jeopardy and the duty of the President under the Constitution impaired.

For this reason, the current debate transcends the wisdom of this or any other appointment. If the charges against Judge Carswell were supportable, the issue would be wholly different. But if, as I believe, the charges are baseless, what is at stake is the preservation of the traditional constitutional relationships of the President and the Congress.



[Honorable William B. Saxbe, United States Senate, Washington, D.C. 20510]

Note: Biographical information on Judge Carswell is printed in the Weekly Compilation of Presidential Documents (vol. 6, p. 52).

The President's letter was dated March 31, 1970, and released along with Senator Saxbe's letter on April 1, 1970. Senator Saxbe's letter read as follows:

Dear Mr. President:

I have publicly stated during the Haynsworth consideration that I felt the President should have the right to his choice for the Supreme Court, with rejection by the Senate based solely on a proved and major character deficiency. I found such a deficiency in Judge Haynsworth and voted against his confirmation.

In my opinion Judge Carswell made an excellent appearance before the Senate Judiciary Committee, but I am disturbed by recent charges against him.

The most recent of these incidents has to do with his candor, or rather his alleged lack of it, in connection with his testimony on his part in forming a racially segregated country club. I believe this question, as well as the charges that Judge Carswell is not only a racist but also a man of mediocre intelligence and attainment, are troubling many members of the Senate.

Finally, and I speak here only for myself, your public support of Judge Carswell, as compared to your support of Judge Haynsworth, appears on the surface to be less than wholehearted. I am very interested in knowing if this is indeed the case.

There are now suggestions that you withdraw this nomination and a move is on to recommit it. Everyone knows that such a move would be in effect rejection of the nomination.

I am reluctant to intrude on your time, but these are points that I feel need your personal attention. I will await your reply before reaching a final decision.
Sincerely yours,

United States Senator

[The President, The White House]

Richard Nixon, Exchange of Letters With Senator William B. Saxbe on the Nomination of Judge G. Harrold Carswell to the Supreme Court. Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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