Before the litmus tests



WASHINGTON -- To anyone here with a long memory, the Samuel Alito case recalls the saga of another federal judge, G. Harrold Carswell, nominated for the Supreme Court by President Richard M. Nixon 35 years ago.

As Alito followed Harriet Miers, Carswell was picked as a replacement for an earlier choice found unacceptable by the Senate, Judge Clement Haynsworth of South Carolina. Like Alito, Carswell became a problem for the White House because of views he had expressed 20 years earlier.

What is most striking about the two episodes, however, is not their superficial similarities but instead what they tell us about how American politics has changed in those 35 years. Neither Haynsworth nor Carswell could muster more than 45 votes for confirmation by the Senate. But they were rejected not because of fear about how they might vote on an emotional and divisive social issue, abortion rights, but because of flaws in their public performance in the past.

It is also clear that the nature of the debate over the court was far different in 1970 than it is today. There were no hard lines drawn by either side specifying what ideological or moral positions might be acceptable. There were no television advertising campaigns for or against a nominee, no interest groups raising money to finance the public debate. Such campaigns began with the nomination of Robert H. Bork in 1987.

In fact, the core of the conflict was less the partisan differences between a Republican president and Democratic Senate than the tension between the president and the press that had raised the issues that ultimately killed the nominations.

Haynsworth was a widely respected chief judge of the Court of Appeals for the 4th Circuit. But reporters found a possible conflict of interest in decisions that might have affected family business interests. The case was flimsy but enough to harden the resolve against him by unions and other liberal groups.

Carswell had two problems. As a district judge in Florida, he had made a record so undistinguished that one of his Republican supporters, Sen. Roman Hruska of Nebraska, argued that he should be confirmed because mediocrity deserved to be represented on the high court. By contrast, no one is seriously challenging Alito's intellectual quality or performance on the appellate bench.

Most damaging, however, was the discovery of a racist speech Carswell had delivered as a young candidate for state Legislature.

And what is striking is that the argument his defenders used then is the same one Alito is using to explain his strong statement against abortion rights in 1985 - that it was something that happened a long time ago in a different political context.

Nixon made that case about Carswell. At a televised press conference, he was asked, "If you had known about the speech in which he advocated white supremacy, would you have nominated Judge Carswell for the Supreme Court?"

Nixon was primed. "Yes, I would," he said. "I am not concerned about what Judge Carswell said 22 years ago when he was a candidate for a state legislature. I am very much concerned about his record of 18 years [as a prosecutor and judge] ... a record which is impeccable and without a taint of racism ... "

Barely concealing his pleasure, he told his tormenters in the press corps that anyone can change his mind over the years, then added the ultimate zinger - that even Ralph McGill, the liberal icon editor of the Atlanta Constitution, had written a column in 1940 opposing racial integration of the schools, then changed his mind.

In the end, Carswell was done in by his mediocrity as much as his racist speech. Nixon promptly turned up in the White House press room to deliver a red-faced rant.

"When you strip away all the hypocrisy," he sputtered, both Haynsworth and Carswell were rejected because they were Southerners who shared his belief in strict construction of the Constitution. It was one of the rare glimpses of "the real Nixon" until the Watergate tapes became public three years later.

Barring some unforeseen development, Alito probably faces no troubles akin to those that beset Carswell 35 years ago. There apparently is no penalty for writing letters gushing with exaggerated enthusiasm at 35.

And as for President Bush, his breach with the press is already old stuff.

Jack Germond is a former Sun political columnist.

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