Baude, Patrick L.

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Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 47 | Issue 1 Article 10Fall 1971Decision by Richard HarrisPatrick L. BaudeIndiana University School of LawFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, Judges Commons, and the Legal Biography CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationBaude, Patrick L. (1971) "Decision by Richard Harris," Indiana Law Journal: Vol. 47: Iss. 1, Article 10.Available at: http://www.repository.law.indiana.edu/ilj/vol47/iss1/10DECISION. By Richard Harris, New York: E.P. Dutton & Company,1971. Pp. 220. $5.95.The keen political reporting that readers of The New Yorkerhave come to expect of Richard Harris is well displayed in this bookdrawn, not at all distantly, from a series of articles in that magazine.He recounts the Senate's decision not to advise and consent to theappointment of Judge Harrold Carswell to the Supreme Court. Theprincipal actors are of course United States Senators, but his narrativeis at least as much of their staffs and of the lobbyists. Judge Carswellhimself hardly appears, certainly never as a person with any purpose inlife other than to be available for the particular controversy-no doubtthe use of Judge Carswell that history will also make. The Presidentand his staff appear only as the butt of insults by Senators and theirstaffs, attacks not so much on impure motives as on incompetence ininfluencing the Senate. A full account of the transaction would includemore complete studies of many people and groups outside the Senate andthe anti-Carswell lobby; but a full account, perhaps like David Danelski'sexemplary study of the confirmation of Justice Pierce Butler,' would bepolitical science or history rather than journalism. Even as journalism,and readily granting a pitch of excitement that would match AllenDrury, Decision has its faults. The most serious is that the author soclosely shares the political instincts of those who defeated Carswell thathe also shares thdir hyperbole and simplism. The most obvious is that theleitmotiv for nobility is orchestrated so loudly that it drowns out mostof Senator Bayh's words.One of the reasons it is hard to write with consistent objectivity aboutthe politics of Supreme Court appointments is the curious ambivalenceof our major metaphors for that Court's function. On one hand, thebusiness of finding statutes unconstitutional is seen as simply a by-product of the day-to-day course of litigation, preferring Marbury'sclaim or Madison's because one legal text is of greater authority thanthe other. A court whose greatest function were so conceived should berun like any other and staffed by those whose strong suits are personalprobity and legal craft, persons equipped and disposed like Mr. JusticeRoberts "to lay the article of the Constitution which is invoked besidethe statute which is challenged and to decide whether the latter squares1. D. DANELSKI, A SUPREME CourR JusT~cE Is APoINTE (1964) [hereinafter citedas DANELSKI].INDIANA LAW JOURNALwith the former."2 Thus, Hamilton stressed the need for the artificialreason and judgment of law:[I]t will readily be conceived, from the. variety of con-troversies which grow out of the folly and wickedness ofmankind, that the records of those precedents must unavoidablyswell to a very considerable bulk, and must demand long andlaborious study to acquire a competent knowledge of them.Hence it is, that there can be but few men in the society, whowill have sufficient skill in the laws to qualify them for thestations of judges.'On the other hand, judicial review is made the principal element in thegreat enterprise of subjecting political appetites to fundamental limits.A court so conceived would be directed more by wise statecraft than byskill in applying legal rules, "[f]or . . . everything turns upon thespirit in which [the judge] approaches the questions before him."'Theory urges that these qualities could exist together; practice remindsus that there are Brandeis and the others. So we forgive Marshallhis excluded middle and petitio principii as willingly as we would JudgeHand his otherworldly notions of judicial review.The trouble is that Carswell had neither virtue. His publisheddistrict court opinions are not even the "first rate second rate" thatHolmes originally thought of Taft,' and of Carswell's larger moral im-pulses little, perhaps blessedly, is known. The evidence against Carswellis solid, but not so overwhelming as Harris makes it seem. It is true thatCarswell was often reversed by the Court of Appeals for the Fifth Circuit,but too many explanations are possible to call that fact "stunning,"'and it no more shows "that whatever else Judge Carswell was, he wasnot the 'strict constructionist' of the Constitution that President Nixonclaimed him to be"' than it does that the Fifth Circuit tends to reverseitself. Had Holmes, Brandeis and Cardozo been federal district judgesduring the period of their great dissenting opinions, one suspects thattheir reversal rate would have exceeded Sutherland's, Van Devanter's orMcReynolds', particularly if it is true that appeals are most likely wherethe law is least settled. After all, more than 97 per cent of Carswell's2. United States v. Butler, 297 U.S. 1, 62 (1936).3. THE FEDERALIST No. 78, at 529 (J. Cooke ed. 1961) (A. Hamilton).4. Hand, Sources of Tolerance, 79 U. PA. L. REv. 1, 12 (1930).5. 1 HOLmEs-LASKI LETTERS 339 (M. Howe ed. 1953).6. R. HARRIS, DECISION 101 (1971) [hereinafter cited as HARRIS].7. Id. at 102..BOOK REVIEWSdecisions were not appealed.' And the fact that Carswell was oncereversed "as being 'clearly in error'-an uncommonly harsh statementfor such a court to make"' would be more convincing if courts of appealswere not in many circumstances forced to affirm judgments not "clearlyerroneous."'0There is similar exaggeration in making out the case that Carswellused his official positions for illicit segregationist ends. For example,four. black juveniles were convicted for participating in a demonstration,sentenced to a reformatory and then released after they filed a suit todesegregate the institution. Judge Carswell dismissed the case whenthe plaintiffs were no longer subject to the segregated institution,"1which no more makes him "a man who really, personally, does not likeblack people" than Brandeis' action in the Atherton Mills case' makeshim a friend of capitalists who brutalize working children.There was other evidence more convincing of Carswell's lack ofcommitment to racial justice: his overtly racist campaign speech at agetwenty-eight, which Senator Brooke is probably right in thinking beyondthe age of forgivable youth; his tendency to abuse civil rights lawyers,although most lawyers who have lost cases important to themselveswould recognize the probable overstatement in the recitals of unfairness;and his role in incorporating a private club which acquired the previouslymunicipal Tallahassee Golf Club, although it is unfortunate that theSupreme Court is less clear than Mr. Harris that such subterfuges areillegal." The golf club incident perhaps received more attention than itintrinsically deserved because that was the subject on which Judge Cars-well attempted to mislead the Senate.All this is a fair case against Judge Carswell. Not that he was actuallyincompetent so much as utterly undistinguished; the chairman of theAmerican Bar Association's Committee on Federal Judiciary put itreasonably accurately, although drawing perverse conclusions, when he.wrote: "[the published opinions] neither gave promise of outstandingscholarship nor did they foreclose it."'4 Neither would his laundry list.Mere unforeclosed p9ssibility of legal talent might be tolerable in aSupreme Court Justice if there were prospects of a grand vision of the8. Walsh, Selection of Su preine Court Justices, 56 A.B.A.J. 555, 557 (1970) [here-inafter cited as Walsh].9. HA.IS, supra note 6, at 53.10. FED. R. Civ. P. 52(a).11. HAmus, supra note 6, at 53.12. A. Bicrt, UNPTJBLISNED OPINIONS OF MR. JUSTIcE BRANDEIS 1-20 (1957).13. Palmer v. Thompson, 403 U.S. 217 (1971).14. Walsh, supra note 8, at 557.INDIANA LAW JOURNTALCourt's role and a dedication to its great ends. The absence of bothqualities is totally damning of a nominee, but is probably not a politicallyeffective case. It is easy to see why lobbyists went beyond, to the case thatCarswell wickedly used his official power to harass blacks and others tothe best of his (feeble) ability. Yet the reporter should not follow theattack without question.Another problem in reliably assessing particular Supreme Courtappointments is the indefiniteness with which ultimate authority isassigned. President Nixon probably blundered tactically, and certainlyhistorically, when he wrote Senator Saxbe: "The question arises whetherI, as President of the United States, shall be accorded the same right ofchoice in naming Supreme Court Justices which has been freely accordedto my predecessors .... ""s Even if the President meant not to considerTyler a predecessor (his score was one for six), he could hardly disclaimWashington, 'Madison, Quincy Adams, Jackson, Polk, Fillmore, Buchanan,Grant, Cleveland or Hoover, all of whom were formally denied at leastone appointment by the Senate. The President continued: "The factremains, under the Constitution it is the duty of the President to appointand of the Senate to advise and consent."' But why it should be theirduty to consent to his nomination, rather than his to take their advice, isleft unsaid. It is equally strange to suggest, as Harris does, that theappointment of Carswell "was a gross violation of the Constitutional rulethat the three branches of government must be separate and equal."'"While the Carswell confirmation was before the Senate, CharlesBlack published a note arguing that "there is just no reason at all fora Senator's not voting . . . on the basis of a full and unrestricted review,not embarrassed by any presumption, of the nominee's fitness for theoffice."' 8 A heartening footnote is given by Harris' report that SenatorSchweiker, after reading Black's article and being led to study the Con-stitutional Convention, reversed his premature endorsement of Carswell.Another problem in choosing Justices, or writing about the choice,is that a judge's future often seems unpredictable from his past. Sciglianoconcludes "that about one justice in four whose performance could beevaluated did not conform to the expectations of his appointer. . .. ""Lawyers' culture celebrates many such instances, prosecutor to EarlWarren, Klansman to Hugo Black, and so on. On careful examination,15. HARRIS, supra note 6, at 155.16. Id. at 156.17. Id. at 12.18. Black, A Note on Senatorial Consideration of Supreme Court Nominees, 79YALE L.J. 657, 663 (1970).19. R. SCIGLIANO, THE SUPREME COURT AND THE PRE iDENcy 147 (1971).BOOK REVIEWSfew of these dramatic changes turn out to be both unpredictable andimportant. The most famous example is Theodore Roosevelt's appoint-ment of Holmes, based on evaluation of Holmes' willingness to bust thetrusts; his dissent in the Nothern Securities case'0 was a disappointment.But by and large Roosevelt must have been satisfied with Holmes.2Similarly, few who knew Senator Black seriously thought that his appoint-ment would advance the racist cause; the Klan, which has occasionallyworked to influence Supreme Court appointments,22 was certainly notknown to be working for Black. If the unpredictability of judicialbehavior is a myth, its persistence is nonetheless easily explained; thereader of Decision will find it almost his only comfort as he is con-stantly reminded of the fortuities of judicial selection.PATRICK L. BAUDEt20. Northern Sec. Co. v. United States, 193 U.S. 197 (1904).21. Roosevelt's letter of inquiry to Lodge shows more concern with Holmes' phi-losophy than with his stand on concrete issues. Roosevelt was, for example, troubled byHolmes' views of Marshall but cheered by his Phi Beta Kappa Address. 1 LODGE-RoosEmvET CORRESPONDENCE 517-19 (1925). But see 6 T. RoosELT, LFrrss 1393 (E.Morrison ed. 1952), an early negative assessment.22. See DANELSKI, supra note 1, at 165-66.t Associate Professor of Law, Indiana University.HALFWAY To TAX RiEFORm By Joseph A. Ruskay and Richard A.Osserman. Bloomington, Indiana: Indiana University Press.1970. Pp. x, 307. $8.95.Halfway to Tax Reform would enable an intelligent layman tolearn what was accomplished by the Tax Reform Act of 1969' and tobecome aware of many remaining features of the federal tax law whichstill need further reform. Although occasionally the authors ventureinto state and local taxation, such as the exemption of church-ownedproperty from state and local taxes,2 the federal income tax receives mostattention. There is also some discussion of needed reforms of the federalgift and estate tax.2The book contains an extensive list of what is alleged by many taxscholars and economists to be tax preferences. To catalog all these tax1. Pub. L. No. 91-172, 83 Stat. 487 (codified in scattered sections of INT. REV. CODEof 1954).2. J. RUSKAY & R. OSSERMAN, HALFWAY TO TAX REFORM 14-16 (1970) [herein-after cited as RuSKAY & OSSERIAN].3. Id. at 125-26, 134-49.

Decision by Richard Harris

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