The Nation's Pulse
Jay, Marshall
"The Nation's Pulse" It is not given to ordinary men to fathom the calculus by which the mind of Richard Nixon finally fixed Upon Lewis Powell and William Rehnquist as...
...One hopes that the Republicans, in their understandable zeal to redress the imbalance of the recent past, will not succumb to the opinion that the solution lies in creating a conservative conterpart to the Warren Court...
...All this, however, might have been foreseen weeks ago -- or so one supposes...
...The Court, alas, has fallen upon hard days...
...It was a serpentine path, indeed, which wound its way at last to their door...
...Friday, might have been spared needless embarrassment...
...The egregious excesses of the Warren era, the Fortas and Douglas scandals, the Thornberry caper, the Haynesworth and Carswell nomination fights -- these are damaging blows to an institution whose most important line of defense is the esteem of the people...
...The Poff strategy, unfortunately for that most private of public men, ran afoul of two stubborn facts: (1) the Liberals, with the election only a year away, were desperate for issues and, barring anything else immediately on the horizon, another Supreme Court nomination fight appeared as good as any...
...It ,is generally conceded that both Powell and Rehnquist will be confirmed without much fuss or fireworks...
...That might please some real or imagined Republican majority in the short run, but it would do so by destroying the function of the Court as the authoritative voice of a Constitution...
...Poff, who only a few days before had been viewed as a great boon for the Southern strategy, all of a sudden became a liability...
...Liberals, who jerk their knees up whenever anyone from south of the Potomac is nominated for anything, will harumph and puff about Powell, if for no .other reason than that he hails from Virginia and is known to be less than wildly enthusiastic about massive bussing and coddled criminals...
...One hopes, however, that it will not prove to have been bought at too high a price...
...And so it was that the Liberals signaled their intentions: Poff would be confirmed if and only if the other seat were given over to a certifiable Liberal...
...This proved too high a price for the President, who had his sights set on both seats...
...Altogether, a splendid victory for the forces of judicial restraint -and for Richard Nixon...
...The long knives were drawn, and the saliva was running...
...Some believe it to be in peril...
...We shall, of course, never know the whole truth...
...There are others, however, who not only think that the caper was planned in exquisite detail from the outset but praise it as the most artful political fandango of Richard Nixon's long career...
...Whether Powell and Rehnquist were part of the plan from the outset, we shall probably never know...
...The principles of which cannot be surrendered to party line or popular whim...
...18 The A l t e r n a t i v e December, 1971 It is not given to ordinary men to fathom the calculus by which the mind of Richard Nixon finally fixed Upon Lewis Powell and William Rehnquist as noroinees for the Supreme Court...
...What we do know is that the Liberals used all, or nearly all of their firepower in what turned out to be a mere preliminary skirmish -- indeed, ambush...
...Was it really necessary to put the nation through four weeks of political gymnastics in order to get two conservatives (at least one of whom had to he a Southerner) on the Court...
...One more such blow, and the Court may be done in altogether...
...Ever since the Carswell defeat, it had been generally acknowledged in Congress that Poff was next in line for the Southern seat and that, because of his long service and many friendships on the Hill, he would be confirmed with only token opposition...
...And the "ABA Six ," especially Mrs...
...but when dinner-time came, there wasn't any racist roast to carve...
...Similarly, it will be whispered that Rehnquist's political ties with the Nixon-Mitchell axis are unseemly in a man about to don judicial robes, but such an argument will not be taken seriously this side of Ramparts or The New York Review ol Books...
...But try though they may -and it is not likely that they will -Lewis Powell simply cannot be made to look like Harold Carswell...
...ed on him, dropping not one but two -count 'em -- conservatives into the hopper...
...Barring some hitherto undiscovered skeleton, in short, the likelihood is that Powell and Rehnquist will be confirmed before the New York Times can think up forty-seven reasons why residence in Virginia or employment with the Justice Department ought to be per se disqualifications for service on the Court during Republican administrations...
...When the noise died down and the smoke cleared, there was the President on prime time television, every eye in the nation focus...
...Lillie and Mr...
...Even the most determined Nixon-haters will not accuse him of having planned this one from the outset...
...but considering the qualifications of the gentlemen in question, one is bound to wonder whether and why a straight line wasn't thought possible in the first place...
...It's simply too neat, too perfect, too "too...
...The whole thing really began, they -say, when it appeared that the Lib'erals - - contrary to earlier indications - - were going to raise a stink about Poll...
...The country might have been spared the anguish of imagining Robert Byrd upon the Court...
...It is also generally conceded that the Liberals have been had...
...His removal, whether by choice or force (or both), ushered in the new game plan, which called for decoys to draw the Liberals' fire...
...2) there were two seats open...
...Richard Poff, that admirable gentlemen, might have been spared the anguish Of knowing that his life's ambition will now remain unfulfilled...
Vol. 5 • December 1971 • No. 3
