Grossman, Joel B.

Wasby, Stephen L.

English

Duke Law Scholarship Repository

JUDGE CLEMENT F. HAYNSWORTH, JR.: NEWPERSPECTIVE ON HIS NOMINATIONTO THE SUPREME COURTSTEPHEN L. WASBY*AND JOEL B. GROSSMAN**Judge Clement F. Haynsworth, Jr., joined the U.S. Court of Appealsfor the Fourth Circuit in 1957. After being the court's chief judge formany years, he took senior status in 1981. He continued to serve on thatcourt until his death in November 1989.Most people know Judge Haynsworth as someone who was nomi-nated to the Supreme Court in 1969 by President Richard Nixon andwho was one of the few Supreme Court nominees in the 20th century tobe rejected by the Senate. The Senate's rejection of Judge Haynsworth,followed immediately by its rejection of Judge Carswell's nomination, fo-cused attention on the relative roles of President and Senate in the judi-cial selection process in a way they had not been focused on previouslyand were not to be focused on again until the Senate's 1987 rejection ofthe nomination of Judge Robert Bork.'After the rejection of his Supreme Court nomination, Judge Hayn-sworth remained on the Fourth Circuit. This continued service distin-guished him from subsequent nominees G. Harrold Carswell and laterRobert Bork, who both left the bench soon after their nominations wererejected. Judge Haynsworth's own correspondence, which we arepleased to be able to make available, provides some insight into his deci-sion to remain on the Fourth Circuit and on an aspect of the controversysurrounding his nomination to the high court. In this brief Article, wetouch on two matters related to Judge Haynsworth's nomination to theSupreme Court and to his subsequent work. One concerns a point ofhistorical interest; the other concerns the relative roles of ideology, parti-sanship, and ethical considerations in the confirmation process. Corre-spondence from Judge Haynsworth, not previously publicly available, iscentral to our treatment of both matters and the raison d'etre for thisArticle.* Professor of Political Science, State University of New York at Albany.** Professor of Political Science and Law, University of Wisconsin, Madison.1. See Beiser, The Haynsworth Affair Reconsidered: The Significance of Conflicting Percep.tions of the Judicial Role, 23 VAND. L. REv. 263 (1970).Vol. 1990:74] JUDGE CLEMENT F. HAYNSWORTHI.We turn first to history. The last rejectibn of a Supreme Court nom-ination, prior to Judge Haynsworth's nomination, had been the rejectionof Judge John Parker in 1930, also a judge of the Fourth Circuit and laterits chief judge.2 Judge Parker's defeat largely resulted from reaction toan earlier statement he had made, while a candidate for public office, thatNegroes should not be allowed to vote and to his ruling that "yellow-dog" contracts (prohibiting the signer from joining a union) were valid. 3Labor organizations and the National Association for the Advancementof Colored People (NAACP) joined in leading the opposition to JudgeParker.Although the specific issues that sparked the opposition of labor andthe NAACP differed, the coalition opposing Judge Haynsworth's nomi-nation was the same. Thus the rejections of these two distinguishedjudges from the South provided many parallels.4 As we shall explain,there also was a personal connection between Judge Haynsworth andJudge Parker. Although Judge Haynsworth realized that history, in theform of two consecutive rejections of Supreme Court nominations, hadcaused people to think of his name along with that of Judge Carswell, hewas unhappy about being grouped with that judge. As he put it in aletter to us a few years after the nomination:I can never avoid some disparagement from the inclination that every-one has to treat Judge Carswell and me together. Your statement, forinstance, that the law professors were opposed to both of us, with somedocumentation as to him, is true as far as I know as to him. Someprofessors expressed opposition to me, but many, many others weremy staunch supporters. They came from all over the country and theyincluded every professor of law who knew me .... [S]everal of themwho supported me came out in open opposition to Judge Carswell.But then I have no right to complain that two rejected nomineesshould be considered together and looked upon much as two peas inthe same pod.52. The nomination of Justice Abe Fortas to be Chief Justice had been withdrawn after theSenate refused to close off debate, but the nomination was not rejected outright.3. The case is International Org. United Mine Workers of Am. v. Red Jacket Consol. Coal &Coke Co., 18 F.2d 839 (4th Cir. 1927), cert. denied, 275 U.S. 536 (1927). See also Fish, Red JacketRevisited: The Case That Unraveled John J. Parker's Supreme Court Appointment, 5 LAw & HIST.REV. 51 (1987).4. We earlier examined those parallels in detail. See Grossman & Wasby, Haynsworth andParker: History Does Live Again, 23 S. C.L. REv. 345 (1971). For a corrective to part of our argu-ment about Judge Parker, see Fish, supra note 3, at 72-75.5. Letter from Clement F. Haynsworth, Jr. to Joel B. Grossman and Stephen L. Washy (Oct.31, 1972).DUKE LAW JOURNALJudge Haynsworth's reaction to being grouped with Judge Parkerwas quite different. In response to an examination of the parallels be-tween the Parker and Haynsworth nominations, Judge Haynsworthwrote movingly of his ties to Judge Parker: "[W]ith my great admirationof him and my deep devotion to him, I am very pleased when anyonespeaks of the two of us in the same breath." He noted further: "I wasvery close to him. Indeed, he literally died in my arms."' 6 As JudgeHaynsworth related the story:No one seems to recall that I went on the Court of Appeals in earlyApril 1957 when Judge Parker was its very vigorous Chief Judge, andthat I served with him for almost a full twelve months before he died.I had known him very pleasantly-as well as a young. lawyer withrather frequent appearances in his court and a member of his circuitjudicial conference might be expected to know an older judge. He wel-comed me warmly and, in the course of a few months, a deep devotiondeveloped between us. Indeed, he expressed great joy that he seemedto be realizing in me all the hopes and ambitions he had entertained forhis son, who received fatal injuries in an automobile accident when avery young man.He had asked me to serve as the chairman of the program com-mittee for the circuit judicial conference, and it came as no surprise tome when he asked that I arrange to have that committee meet inWashington at the time of the March meeting of the Judicial Confer-ence of the United States, so that he could introduce me to the mem-bers of that group. I did that, and Mrs. Haynsworth and I, on theevening of our arrival in Washington, met him for dinner. It was justafter dinner as we were walking through the lobby of the hotel that hesuffered his first attack.Moreover his example inspired and sustained me as I picked upmy life after the vote in the Senate. He entertained no sense of bitter-ness about denial of confirmation for him, and my first resolve was topermit myself to entertain no such feeling. I have not done so ....What success I have achieved in leading a fruitful and very happylife since November 1969 I attribute in substantial part to JudgeParker and the example he set for me.7II.From that tribute by Judge Haynsworth, we move to a somewhatmore difficult subject: the role of a judge's ethical standards and ideologyin the rejection of his nomination. This Article notes some scholarshipon the question whether that issue was determinative in the outcome ofthe nomination and then uses Judge Haynsworth's words to correct a6. Letter from Clement F. Haynsworth, Jr. to Stephen L. Wasby (Nov. 29, 1972).7. Id.[Vol. 1990:74Vol. 1990:74] JUDGE CLEMENT F HAYNSWORTHpart of the record. In so doing we offer his perspective on this importantaspect of the nomination process for federal judges.Opposition to Judge Haynsworth's nomination was based on a com-bination of disagreement with his perceived ideology as reflected in hisjudicial rulings and concern about his ethical sensitivity. The former is-sue centered on whether he had been sufficiently active in implementingschool desegregation, particularly at a time when the Supreme Court hadbegun to demand more forward movement on the part of school districtsand lower court judges in formulating remedies. The ethics issue hadtwo elements. The first was that Judge Haynsworth was said not to haverecused himself from a case in which he appeared to have a financialinterest.8 The other involved his purchase of stock in a company thathad been a litigant in a case before him;9 the purchase was made after thecase was decided but before the decision was announced, and JudgeHaynsworth attributed his actions to inadvertence. The ethics topic waslikely to receive heightened attention at the time because, although theattack on Justice Fortas' nomination as Chief Justice in 1968 primarilyresulted from his membership on the liberal Warren Court, his departurefrom the Court in 1969 was tied directly to perceived ethical failures onhis part.10 And that departure had created the vacancy on the bench forwhich Judge Haynsworth had been selected.Whether ethics or ideology linked to political partisanship was theprincipal reason for the rejection of Haynsworth's nomination has been amatter of some debate. One position is that Senators, hesitant at thattime to oppose a nominee openly the basis of his ideology (although thiswas not true during the recent Bork nomination), used the ethics issue asa "cover" for their votes in opposition to Judge Haynsworth. Anotherpossibility, of course, is that the issue of ethics itself played a major partin the rejection. Some years ago, we observed that if opposition to JudgeHaynsworth had remained at the level of partisan and ideological consid-erations, where it had initially been rooted, then "the nomination wouldalmost certainly-have been approved."1 However we noted in our ear-lier Article that "[w]hile most senators who voted against Judge Hayn-sworth publicly attributed their opposition to the conflict of interestissue, it is reasonable to speculate in the absence of evidence to the con-8. Darlington Mfg. Co. v. NLRB, 325 F.2d 682 (4th Cir. 1963) (en banc), vacated and re-manded sub nom. Textile Workers Union of Am. v. Darlington Mfg. Co., 380 U.S. 263 (1965).9. Brunswick Corp. v. Long, 392 F.2d 337 (4th Cir. 1968).10. For the most recent study, see B. MURPHY, FORTAS: THE RISE AND RUIN OF A SUPREMECOURT JUSTICE (1988).11. Grossman & Wasby, The Senate and Supreme Court Nominations Some Reflections, 1972DUKE L.J. 557, 577.DUKE LAW JOURNALtrary that the issue provided a convenient justification for opposition gen-erated in fact by ideological or political considerations." 12Studies of the rejection of Supreme Court nominations offer conflict-ing evidence on this point. One study of roll call votes in the Hayn-sworth and Carswell nominations suggested that the importantdeterminant of Senators' voting behavior was neither their political partynor the geographic region from which they came, but rather their lib-eral/conservative orientation. 13 Another study found that overall, thedistribution of Senators' votes was "consistent with the hypothesis that itis primarily dissatisfaction with the predicted policy behavior of the nom-inee which is the main motive force behind a vote against confirma-tion." 14 However, with respect to the nominations of Fortas to be ChiefJustice (where the vote had been whether to close off debate), Carswell,and Haynsworth, "only in Haynsworth's case did ethics seem to have animportant influence on the final vote (as opposed to merely the level ofrhetoric during debate in the Senate)"; evidence supporting this view in-cludes the fact that some conservative Senators, "who might have beenexpected to support Haynsworth on the basis of policy and ideology,"voted against the nomination.1 5An aspect of the ethics issue can be clarified by another piece ofpreviously unpublished correspondence from Judge Haynsworth. It in-volves the Darlington Mills Case-important not only because of the eth-ics issue but also because the Fourth Circuit's ruling was unfavorable tolabor. This result helps explain labor's presence in the coalition againstJudge Haynsworth, although some union lawyers did testify that he wasa fair and honest judge. In the Darlington Mills Case, the National La-bor Relations Board found that Darlington Mills had been closed be-cause of anti-union animus and ruled the Deering Milliken Company wasliable for Darlington's unfair labor practices and accordingly orderedbackpay for discharged Darlington workers and other remedies. Sittingen banc, the Fourth Circuit voted three to two to set aside the order,holding that the company had an absolute right to close part or all of itsbusiness, regardless of anti-union motives.16 Since Haynsworth was inthe three-judge majority, his vote was crucial to the result. When thecase went to the Supreme Court, the Justices ruled in Textile Workers12. Id.13. M. Leavitt, Carswell and Haynsworth: An Elementary Study of Senate Voting (1970) (un-published manuscript), cited in Grossman & Wasby, supra note 11, at 577 & n.85.14. Songer, The Relevance of Policy Values for the Confirmation of Supreme Court Nominees,13 LAW & Soc'Y REv. 927, 935-36 (1979).15. Id. at 939.16. Darlington Mfg. Co. v. NLRB, 325 F.2d 682, 685 (4th Cir. 1963) (en banc), vacated andremanded sub nom. Textile Workers Union of Am. v. Darlington Mfg. Co., 380 U.S. 263 (1965).[Vol, 1990:74Vol. 1990:74] JUDGE CLEMENT F HA YNSWOR TH? 79Union of America v. Darlington Manufacturing Co. that an employercould terminate an entire business for any reason, including anti-unionreasons, but could not close only part of a business for that reason.17The Fourth Circuit ruling in the Darlington Mills Case stirred com-plaints that Judge Haynsworth had behaved unethically. In an investiga-tion conducted by Chief Judge Simon Sobeloff of the Fourth Circuit,Judge Haynsworth was cleared of any charges of impropriety. In ourearlier examination of this matter, we stated that the investigation wasdone "at the behest of Attorney General Robert Kennedy." 18 That state-ment was wrong; Judge Haynsworth himself had requested the investiga-tion. His own statement about the investigation corrected our mistake19and the supporting documents are important footnotes to history.Judge Haynsworth, responding to "implications... that the investi-gation was done at the request of the Attorney General which cast thematter in a different light from the reality,"20 explained:General Kennedy never requested anything. What happened was thatJudge Sobeloff received a letter from Miss Eames, Counsel for the Tex-tile Workers, in which she reported the receipt of an anonymous com-munication which, if true, would indicate that I had consciouslyaccepted something in the nature of a bribe at the time of the firstDarlington Mills decision. Judge Sobeloff showed me the letter, andthe two of us, together, discussed what should be done. I told him, ofcourse, that the anonymous report was untrue. He had no doubt onthat score, but he and I were both concerned that there might be lin-gering suspicion if he simply responded to Miss Eames with a state-ment of a general denial on my part and of his belief in me. I cannotnow recall whether the suggestion of a complete investigation firstcame from him or from me, but we came to the joint conclusion that,for the sake of my reputation and the complete removal of all doubtsfrom the mind of Miss Eames, the appropriate thing to do was to haveJudge Sobeloff conduct a complete investigation and report his findingsto her.The investigation, thus, was not at the request of the AttorneyGeneral, but at my request and with my complete approval.17. 380 U.S. 263, 268 (1965).18. Grossman & washy, supra note I1 at 577; Grossman & Washy, supra note 4, at 350.19. It is indicative of Judge Haynsworth's moderation in connection with these events thatwhen we suggested that he might call our error to the attention of the editor of the Duke LawJournal, his response was, "I do not think I should attempt to have the editor of the Duke LawJournal print a letter from me about the Darlington Mills case. I made no effort to police the presswhen it was carrying a large amount of misinformation about me. I do not want to run the risk ofappearing critical of that Journal or of you" for what he was gracious to call "such a relatively minorslip." Letter from Clement F. Haynsworth, Jr. to Joel B. Grossman (Nov. 22, 1972).20. Letter from Clement F. Haynsworth, Jr. to Joel B. Grossman and Stephen L. Wasby (Oct.31, 1972).DUKE LAW JOURNALCopies of data and communications sent to Judge Sobeloff by thelawyers and individuals he contacted were sent to Miss Eames. Shequickly realized that the anonymous report that she had received wasfalse. She wrote to Judge Sobeloff and told him so, and apologized forhaving raised any question about the matter.That would have closed the book, except that I was concernedover the fact that a charge, however groundless, had been made and,though now retracted, that some report of the investigation might getabroad. With such things in mind, I requested Judge Sobeloff to sendhis entire investigative file to General Robert Kennedy. Because of myrequest, he did that, after which he received a response from GeneralKennedy referring to the investigative file and expressing his completeconfidence in me.2 1Judge Sobeloff, transmitting the file of correspondence between theTextile Workers Union and Deering Milliken Corporation to the Attor-ney General, pointed out that the person who had first raised the matterwith the court believed the claims were without foundation. The court'sinvestigation led to the same conclusion:Happily, Miss Eames, who wrote the initial letter to the court on De-cember 17, 1963, has herself acknowledged that the assertions and in-sinuations about Judge Haynsworth, made to her by some anonymousperson in a telephone call, are without foundation; but I wish to addon behalf of the members of the court that our independent investiga-tion has convinced us that there is no warrant whatever for these asser-tions and insinuations, and we express our complete confidence inJudge Haynsworth.22A few days later, Attorney General Kennedy responded, stating his"complete confidence in Judge Haynsworth." He added, "Your thor-ough and complete investigation reflects that the charges were withoutfoundation. I share your expression of complete confidence in JudgeHaynsworth. ' '23As observers of the judicial process, there is little we can add to thematerial presented here. Although the correspondence and other papersof judges are used increasingly as the basis for studies of that process,commentators seldom have the benefit of contemporaneous response totheir writing by the subjects of their studies. Fortunately, Judge Hayn-sworth shared his views with us both to offer corrections and, far moreimportantly, to provide a special perspective. That perspective reveals arespected judge whose life was caught up in the flow of national politicalhistory and who, despite considerable adversity, went on to give extendedservice to the lawyers, judges, and people of his circuit.21. Id.22. Letter from Simon E. Sobeloff to Attorney General Robert Kennedy (undated) [Feb. 18,1964].23. Letter from Robert F. Kennedy to Simon E. Sobeloff (Feb. 28, 1964).[Vol. 1990:74

Judge Clement F. Haynsworth, Jr.: New Perspective on His Nomination to the Supreme Court

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Judge Clement F. Haynsworth, Jr.: New Perspective on His Nomination to the Supreme Court

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