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CHAPTER 15 Fairness in Federal Court If Senator Olin Johnston had not died when he did, my Senate career might have turned out much differently. At the beginning of the Eighty-Ninth Congress, Johnston was ninth inSenateseniority.1 InadditiontochairingthePostOfficeandCivilService Committee, the South Carolinian was second-ranking Democrat on both the Judiciary Committee and the Agriculture and Forestry ­ Committee. AmonghislesserassignmentswaschairinganobscureJudiciarysubcommittee with a boring name: the Senate Subcommittee on Improvements in Judicial Machinery. As far as my staff could tell, it rarely, if ever, met. Even though few freshmen ever chaired Senate subcommittees, my legislative aide, Alan Wurtzel, saw an opportunity. Because of my father’s long service in the Senate, I had a leg up on many other newcomers. My father had taught me a reverence for the Senate and how the place worked. Soon after my election, I began paying my respects and seeking guidance from the likes of Senator Richard Russell of Georgia and others. I knew they would be important to my future. They understood I was a liberal and not likely to side with them on some issues, but because Dad was fondly remembered, I had what my aide John McEvoy called the “halo effect.” They had liked Millard Tydings, so they helped me. As soon as I was appointed to the Judiciary Committee, I paid my respects to the chair, James Eastland of Mississippi, and his two senior aides. He had a huge office with a fully stocked bar. “Mr. Chairman,” I said, “I just want to tell you what a great opportunity it is to serve under you.” “What are you drinking, Joe? We have bourbon, Scotch, whatever you want. What are you having?” 1. Johnston had been a state legislator, two-term governor of South Carolina, and fourterm member of the US Senate, first elected in 1944. 231 FAIRNESS IN FEDERAL COURT “Well, Senator,” I said, “I don’t really drink much.” “Joe, I’m drinking bourbon,” he persisted. “What are you drinking ?” “I’m drinking whatever you are drinking, Mr. Chairman,” I replied, and we each had a big glass of bourbon. At this early juncture, Eastland and I had not yet fought over voting rights or other contentious civil rights legislation, although our respective positions were no secret. I was on good terms with him because I had agreed to chair the formal hearings on new federal judges, a responsibility no other more senior Judiciary Committee members wanted. Undercommitteerules,whenapresidentnominatedafederaljudge, courtesy required the senators of the president’s party to send the committee chair (in this case, Eastland) a white slip indicating approval. Once the slip was received, the approval was automatic and the hearing merely a formality to extol the virtues of the new judge. If the white slips were not delivered, the nomination was dead. Appointments to the federal bench were the most important patronage jobs senators had to fill, followed by US attorney and federal marshal. At Eastland’s request, I sat for hours chairing the hearings for more than forty new judges. This, in fact, was how I learned the intricacies of judicial appointments . That year, when new judicial seats were created for both the US District Court for Maryland and the US Court of Appeals for the Fourth Circuit in Richmond, I cut a deal with Senator Danny Brewster that, in the end, allowed me to name nominees for both seats and also to name the next US attorney for Maryland. Although Danny was the senior senator, he agreed to fill only one district court seat. Danny had become unnerved by the 1964 Democratic primary, when he was booed by voters and I had won big. After that, he pretty much followed my lead. I suggested that we get President Johnson to elevate Harrison Winter to fill the new Fourth Circuit seat. Veteran Senator Sam Ervin had recommended his own North Carolina nominee, and the president sent down both names the same day. I, however, was in position to put Winter’s name forward for confirmation as chief judge of the Fourth Circuit first before Ervin could push his own nominee. Elevating Winter created a second vacancy at the district court level in Maryland. For that seat, I recommended Frank Kaufman, and Brewster recommended Alexander Harvey for the newly created district court seat. At 232 CHAPTER 15 the same time, I persuaded Governor Agnew to appointTom Kenney, my successor as US attorney, to the Maryland Circuit Court. That created a vacancy at US attorney, which I filled...

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