Haynsworth_Carswell Photo
Article II of the Constitution of the United States assigns the powers of the president. The powers defined are not nearly as extensive as those defined of Congressional power in Article I, but, nevertheless, the President holds significant roles in the federal government. Among the presidential powers is the ability to nominate and appoint justices to the Supreme Court with the advice and consent of the Senate. This feature of the constitution gives distinction to the United States government, balancing both presidential and state authority.

The process of Supreme Court nominations endures to this day, but at times becomes somewhat of a contentious struggle between the president and the Senate. This was especially so during the Nixon years following President Nixon’s nominations of Clement Haynswoth and later Harrold Carswell to fill the vacancy left by Justice Abe Fortas’ resignation. Despite the President’s approval, both nominees were denied by the Senate, often after time consuming partisan battles. President Nixon was disappointed with the rejections, sensing that the Senate was undermining the executive authority of the president. He voiced his frustrations in a letter to William Saxbe, Senator from Ohio, underscoring what he believed was the real issue at hand:

“What is centrally at issue… 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 judgement for that of the one person entrusted by the Constitution with the power of appointment.”

RN continues:

“under the Constitution it is the duty of the President to appoint and the Senate advise and consent. But if the Senate attempts to substitute its judgement as to who should be appoint, the traditional constitutional balance is in jeopardy and the duty of the President [is] impaired.”

View the entire letter below:

Blog #9 Advice and Consent

Part of RN’s disappointment stemmed from his belief that his nominations were rejected by the Senate solely because they were conservative and from the South and not on their actual qualifications as judges.

Concern was not confined to President Nixon alone. An U.S. World News Report (shown below) expresses its discontent with the Senate’s rejection of Haynsworth and Carswell.

The article states: “The confirmation process [of the Court nominees] should not impair selection. The President should do the choosing. The Senate should be required to confirm or reject within a brief interval, so that judicial nominations will not become involved in political mischief-making. ‘Advice and consent’ does not mean also the right to select.” The article’s argument shares President Nixon’s interpretation of constitutional authority, stating that the president’s nominations should not be bogged down or rejected in a political, partisan battle.

Haynsworth was nominated in late August of 1969 and reject in November of 1969. The Senate rejected Haynsworth with of vote of 55-45; those who were opposed to his confirmation highlighted the conflict of interest Haynsworth had with stocks he purchased from companies that were involved in cases presented before his court. Although these accusations were never quite proven, they were enough to end any chances he had at a seat on the Supreme Court.

Carswell was rejected by a vote of 51-45 after a three month battle over his nomination in early 1970. Unlike Haynsworth, Carswell was accused of being a racist because of comments he made early in his life in the 1940’s.

President Nixon firmly believed that the office of the President of the United States held the prerogative in the judicial appointment process. Though the President relies on the Senate’s advice and consent, RN believed that it should not force its own judicial philosophy upon the president to influence the Court but should reject or confirm a nominee based upon their qualifications.