Nixon’s Southern Strategy Rebuffed: Senator Marlow W. Cook and the Defeat of Judge G. Harrold Carswell for the U.S. Supreme Court

When President Richard M. Nixon nominated G. Harrold Carswell, a judge on the U.S. Fifth Circuit Court of Appeals, to the U.S. Supreme Court on January 19, 1970, the administration—and many political observers—believed that the judge would have little difficulty gaining confirmation in the U.S. Senate. After all, Nixon’s first choice for that seat, Judge Clement Haynsworth of South Carolina, had been voted down by the Senate by a 55–45 margin, and no president had witnessed the rejection of two consecutive Supreme Court nominees since Grover Cleveland in 1894.¹ Moreover, on paper Carswell appeared to be an especially attractive candidate. Not only was he a conservative—the type of judge that Nixon had promised to appoint while running for president in 1968—but he was also a southerner by birth (Georgia) and residence (Florida). Thus, his elevation to the high court promised to enhance Nixon’s “southern strategy” of currying favor with the white South.² Besides, even if the Senate’s liberal bloc objected to his conservatism, Carswell’s lengthy legal résumé would, on the surface, still make him a convincing choice for the court. Before his confirmation to the court of appeals in June 1969, the fifty-year-old Carswell had served as a U.S. attorney for five years, 1953–58, and then as a federal judge in the Fifth Circuit District (northern Florida) for eleven, 1958–69.³ Furthermore, Carswell had easily won Senate confirmation to his most recent position within the past year. The Nixon administration assumed, therefore, that Carswell would have little trouble gaining Senate approval once again.⁴ Likewise, national newspapers and magazines anticipated little trouble for Carswell.⁵

These optimistic forecasts could not have been more off the mark, as a rash of troubles soon beset the nomination. Under pressure from Nixon to fill the vacancy quickly, the Justice Department had failed to vet Carswell thoroughly and had thus missed several embarrassing incidents from the judge’s past that immediately called into question his suitability for the Supreme Court. These episodes included Carswell’s defense of white supremacy in a speech he had made while running for the Georgia state legislature in 1948; his drafting of a charter, while serving as a U.S. attorney, that created a Florida State University football booster club limited to whites only; his assistance in creating a private corporation—again during his stint as a U.S. attorney—to assume control of an all-white public golf course under court order to desegregate; and his and his wife’s purchase and sale of real estate with a racially restrictive covenant in the deed. Moreover, out-of-state attorneys, especially black lawyers, had accused Carswell of exhibiting hostility toward them in all cases related to civil rights.⁶ Carswell’s problems multiplied when the Ripon Society, a liberal Republican organization, and the Columbia University–based Law Students Concerned for the Court released a study showing that appellate courts had reversed 40.2 percent of Carswell’s decisions that they had reviewed during his eleven-year stint as a judge in the Fifth Circuit District, giving him the seventh highest reversal rate of the sixty-seven judges whose service in the district had overlapped his.⁷ This last disclosure raised genuine concerns about the judge’s competence to sit on the nation’s highest court.

These damaging revelations weakened Carswell’s candidacy but did not necessarily destroy it. In fact, as the Senate’s vote on his nomination on April 8, 1970, approached, most political prognosticators believed that Carswell still had a respectable chance of winning the simple majority needed for Senate confirmation. A March 20 Washington Post survey, for example, counted forty senators in favor of Carswell’s nomination, thirty-one senators opposed, and twenty-nine undecided.⁸ Realizing that the nomination was in peril, the Nixon administration launched a vigorous effort to woo the undecided senators.

Chief among these senators was freshman Republican Marlow...