Books Decision

210 Pages $5.95

IT SEEMS sometimes that a government's only job is to define the rules by which politics may be played. It seems that a democracy is another such government until that day when the public servant looks forward over his shoulder and sees the future, as Senator Charles Goodell did during the Carswell controversy: "My main point was that Carswell could still be on the Supreme Court in the year 2000." On such a day democracy distinguishes itself from other forms of government; when the crunch comes it allows for vision from below. At least that is what the Carswell rejection would have signified had it occurred in the fifties or even most ways into the sixties. But Carswell was nominated on February 19, 1970, only several weeks before the Cambodian incursion. Richard Harris's Decision documents the Carswell debate. It is not an historical drama, not a Profile in Courage, but a reportorial thriller of seventy-nine days in the winter and spring of '70. It is set in the same Senate with many of the same Senators who are presently refueling for a second fight with the SST.

Carswell's ineptitude, his racism, and his defeat are givens in Harris's account of the debate. Decision is a chronicle of the Senate's enlightenment. That the distance between the senators' political instincts and their final votes was never a straight line-it took Senator Brooke, for one, five weeks to come around-constitutes the miracle. There are times when one wishes that Harris had pressed senators more closely on their individual revelations. What were the reasons behind Margaret Chase Smith's "nay," for instance. Decision is a mosaic of the telephone calls, the speeches, the cloakroom chats, the evidence and the gaffs that were mobilized against Carswell.

The sum total of the defeat seemed in the end to be the result of two major forces-the belief that if Carswell were to gain the seat the young blacks would be confirmed in their mistrust of the system, and the bumbling of Nixon and his Attorney General, John Mitchell. Scratch the miracle, Harris implies, and the better part of Carswell's defeat must be credited not to the indignation of the nation and its representatives, but to the Executive's stupidity.

AS IN THE Haynesworth case, the FBI and the Justice Department had done a lousy job investigating Carswell. It was clear that his abilities as a judge were below average, that his balking on granting habeas-corpus petitions was a danger signal, and that his rudeness to civil rights workers and blacks in court was inexcusable and pointed to a racist and anti-integrationist intent. In 1948 he had made a clearly white supremacist speech; in 1953 he had helped start a white-only fraternity, and in 1956 he had been the incorporator of the Tallahassee Golf Club, established for the purpose of circumventing the Supreme Court Decision of six months earlier prohibiting segregation in municipal recreation facilities. Carswell went from the frying pan into the fire when in the Senate Judiciary Committee he denied remembering that he played any part in the incorporation, having the night before privately acknowledged that the signature on the incorporation papers was his own.

Up until the last moment, the White House thought they had it in the bag. Where in Justice, Richard Harris's book on the Justice Department, Nixon and his ventriloquist Mitchell come off as Machiavellian, in the Carswell case harebrained better describes their style. John Mitchell reportedly thought Carswell "too good to be true"; Nixon studied the Constitution diligently and concluded, quite literally, that "it is the duty of the President to appoint and of the Senate to advise and consent." And Senator Hruska, a special friend of the White House, sat like Christopher Robin clutching his Pooh bear on the step of mediocrity half way up and half way down the stair: "Even if he (Carswell) 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?"

If Carswell and his inept PR men proffered the carcass, it was those who devoured and digested the bad news that turned his defeat from a must into a fact. Behind the scenes men and women like Mrs. Marian Edelman of the Washington Research Project and James Flug, Senator Kennedy's lawyer, and Morris Abram, Harvard '71, gathered information and shoved it down the Senate's throat. The press, most notably the Washington Post, the New York Times, the Washington Evening Star and the Atlanta Constitution, kept the issue in the public eye.

The mail flooded in Senator Eagleton's was running three to one against, thus giving him the go-ahead to vote Carswell down. A rash of civil rights groups, grass-roots organizations, and labor unions came out against the judge. Judge Elbert Tuttle from Carswell's Fifth District Court refused to testify on behalf of the nominee. The Chairmen, past and present, of the American Bar Association and other members of the Legal Establishment wrote a letter, the Rosenman letter, denouncing Carswell. A group of liberal Republicans not welcome on the White House doormat, the Wednesday Club, egged one another on in their defection. A group of Columbia Law School students unearthed the sensational statistic that Carswell had been reversed in 40 per cent of his 15,000 decisions. And inside the Senate it was the Dump Carswell Movement headed up by Senator Bayh for the Domocrats and Senator Tydings for the Republicans that pulled the final levers. "It was fantastic," Johnson aid Joe Califano said. "Ordinarily most people in this town are reluctant to use up their credit with somebody unless some personal advantage is involved. But this time nobody cared about anything like that. Time after time, men said things like 'I want to help, but I didn't know anything could be done. Just tell me what to do and I'll do it'"

HARRIS FEELS that the Carswell affair had real bearing on the Cambodian incursion. That Nixon's peevishness mounted sorely as a result of the Haynesworth and Carswell rejections and that the incursion was his way of showing the Senate and the nation "who's boss" are unspoken conclusions. One Republican Senator admitted that without the Senate's renewed confidence in its own powers it would never have tried to fight the invasion as much as it did.

Far-reaching analyses of the implications of the Carswell affair on Harris's part are noticeably lacking. One feels not that Harris cannot decide what the decision augurs so much as he is hesitant to speak. On rereading the jeremiad with which he concludes Justice. it seems clear that he is afraid to speak for fear of what he will have to say. "Since it is the majority's fear-fear of black men, fear of crime, fear of disorder, fear even of differences-that allows repression to flourish, those who succumb to their fears are as responsible as those who make political use of them. And in the end both will suffer equally. 'For they have sown the wind and they shall reap the whirlwind.'" Richard Harris, it seems, would add to this list of fears men's fears of making decisions. For the Senate, the Carswell episode was a trauma in decision making. Senators fear the absence of politics. They fear a situation in which their decision would be based not on the dictates of politics, but drawn out of that fuzzy world of human merit. Decision making is a power that men shrink from. Men, and senators too, will go far afield in looking for the situation where the ay or nay is clear and one has only to follow. Repression is a siren with a loud wail and a jailer's heart. Harris hears in the distance police sirens coming for America.