A Long, Strange Trip: The Nomination and Confirmation of Justice Harry A. Blackmun - 9
Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are
entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises,
and Frankfurthers and Cardozos and stuff like that there.” (quoted in Harris, 1971:110)
The drama – one prompted by what Abraham (1985:16) wrote was “an act of vengeance – one intended to
teach the Senate a lesson and to degrade the Court” – came to an end with a 51-45 vote against Carswell.
After being stymied for a second consecutive time by the, Nixon was furious. He went on national
television and announce that
I have reluctantly concluded -- with the Senate presently constituted -- I cannot successfully
nominate to the Supreme Court any Federal appellate judge from the south who believes as I do
in the strict construction of the Constitution...In selecting [Haynsworth and Carswell], I had
several criteria in mind. First, and foremost, they had to be men who shared my legal philosophy
of strict construction of the Constitution -- men who would help to restore to the United States
Supreme Court the balance that it genuinely needs -- that balance I pledged to the American
people that I would help to restore. Secondly, I set the criteria that both have experience on the
highest Federal appeals court -- next to the Supreme Court itself. Third, I chose them because
they were both men of the South (10 April, 1970 New York Times).
The criterion the president felt compelled to drop was the third. The beneficiary of this decision was
Harry A. Blackmun, federal appeals judge from the Eighth Circuit. It was because of this that Blackmun
occasionally referred to himself as "old number three.” Nixon jettisoned, for the time being, his
“Southern Strategy” – though he no doubt successfully turned the political heads of some southern whites
with his dogged efforts to put one of “theirs” on the Court – and nominated Blackmun.
The Nomination and Confirmation of Blackmun
The Politics of the Selection
Nixon wasted little time in naming a replacement. The Senate formally rejected the Carswell
nomination on Wednesday, 8 April, and newspapers reported on Sunday, 12 April, that a new nomination
was pending. Reports suggested that the president’s men were working from a list of 150 names, with
three – judges Edward T. Gignoux of Maine,6 Alfred T. Goodwin of Oregon,7 and Blackmun – under
6
Gignoux was appointed to the district court by President Eisenhower, and would -- in all probability -- draw the
support of Republican Senator Margaret Chase Smith, an opponent of the Haynsworth and Carswell nominations.
7
Goodwin was also a federal district court judge, receiving that appointment very early in Nixon’s term. He was
reported to be the most “liberal” of the three supposed finalists, having struck down [Lowe v. City of Eugene (1969)]
Convention