A Long, Strange Trip: The Nomination and Confirmation of Justice Harry A. Blackmun - 39
on its one-time proponents. This made it more difficult for Nixon to press his judicial and constitutional
agenda through appointments to the Court. Under pressure of time and two spectacular failed
nominations, Nixon needed, more than anything else, a safe and easy nominee. He got this with
Blackmun. He also got a justice who, for his first few years on the bench, clung pretty closely to the more
general constitutional vision that Nixon sought to advance. But, with time, Blackmun strayed and left
Nixon’s more ideologically inclined justices – Burger and Rehnquist – isolated and less effectual than
they otherwise might have been. In addition to not being “a crook,” Nixon was also not a clairvoyant, so
it is not terribly surprising that he missed with some of his appointees. My point here, though, is not the
degree to which he missed with Blackmun, but rather why he might have missed at all given his success
with Burger and Rehnquist.
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The answer to this question is both intrinsic to the confirmation process as it has stood since Fortas
and the imponderables of human growth and development. As to the process, Nixon’s vindictive choice
of Carswell – and the Senate’s willingness to stand him down – painted him into a corner. The Court led
by his new Chief Justice had been understaffed for almost the entire 1969 Term. More delays in adding
the ninth justice would further harm the work of the Court. Further, even for a political street fighter like
Nixon, there was little point in going down for a third time in one round. Thus, he needed to select
someone with whom he felt comfortable and who could pass through the Senate without setting off
another tempest. Blackmun filled this bill. He was also a close friend of the new Chief Justice. This
suggested he might he be more “persuadable” on the Court than others, but also that the same Senate that
passed Burger through unscathed would probably do the same for a bespectacled variant of him.
Where Nixon missed the mark – not in terms of confirmation politics, but in terms of jurisprudential
orientation – was in assuming that Blackmun and Burger were judicial soulmates. Though some of
Blackmun’s public pronouncements – especially in civil liberties cases – could be read as Burgerian in
their moral outrage, a close look at his work on the court of appeals would have demonstrated significant
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Powell is a different story. Much more Blackmun-like in his tenure on the Court – the centrist’s centrist, if you
will – Powell was an establishment southern Democrat but, given the flack over Haynsworth and Carswell, was a
more compromised choice for Nixon than the other two.
Convention