Carswell was nominated by President Richard Nixon on May 12, 1969, to the United States Court of Appeals for the Fifth Circuit, to a new seat authorized by 82 Stat. 184. He was confirmed by the Senate on June 19, 1969, and received his commission on June 20, 1969. His service terminated on April 20, 1970, due to his resignation.[3]
The Senate Judiciary Committee opened hearings on the nomination eight days after Nixon made the announcement; and the president anticipated that the nomination would proceed smoothly. Before they began, however, the press uncovered a speech delivered by Carswell during his unsuccessful Georgia legislative bid in 1948 that espoused the principles of white supremacy.[7] In the August 2, 1948 speech to the American Legion chapter at Gordon, Georgia, he said:
I am Southern by ancestry, birth, training, inclination, belief and practice. And I believe that segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed and I shall always so act.
I shall be the last to submit to any attempt on the part of anyone to break down and to weaken this firmly established policy of our people.
If my own brother were to advocate such a program, I would be compelled to take issue with him and to oppose him to the limit of my ability.
I yield to no man, as a fellow candidate or as a fellow citizen, in the firm, vigorous belief in the principles of white supremacy, and I shall always be so governed.[8]
When the story broke, Carswell said "specifically and categorically, I renounce and reject the words themselves and the thought they represent; they are abhorrent."[8] The NAACP, upon learning of Carswell's racist comments, declared their opposition to Carswell's nomination and asked that his appointment be rejected by the Senate. U.S. Attorney General John Mitchell, citing an extensive background check by the Justice Department, was willing to forgive, stating that it was unfair to criticize Carswell for "political remarks made 22 years ago".[9]
Other issues regarding Carswell's civil rights record soon also came to light, such as his being involved in turning a public golf course into a segregated private club in Tallahassee, Florida, signing a deed to property which contained a racially restrictive covenant and prolonging the duration of a school desegregation case from 1963 to 1967.[10][11]
Meanwhile, feminists accused him of being an opponent of women's rights. Various women, including U.S. Congresswoman Patsy Mink[12] and Betty Friedan, testified before the Senate, opposed his nomination.[13] They described a case in which Judge Carswell refused a rehearing for a complainant who was the mother of preschool children.[11]
During the hearings concerns about Carswell's mediocre skill as a jurist were raised as well. By one assessment, it was reported, 40 percent of his rulings had been overturned on appeal. Louis H. Pollak, then dean of Yale Law School, testified that: "There is nothing in these opinions that suggests more than at very best a level of modest competence, no more than that."[6] Senator George McGovern of South Dakota said of Carswell, "I find his record to be distinguished largely by two qualities: racism and mediocrity."[2] In response, Senator Roman Hruska of Nebraska suggested that critics were focusing on Carswell's scholarship because they didn't like that he was a Southerner.[6] Later, Hruska famously told reporters:
Even if he 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? We can't have all Brandeises, Frankfurters and Cardozos.[14][15]
The remark was criticized by many as being anti-semitic, which further damaged Carswell's cause.[15]
Despite the testimony given about his civil rights record, on February 16, 1970, the Judiciary Committee voted 13–4 to forward the nomination to the full Senate with a favorable recommendation.[5] After opponents of Carswell failed, by a 44–52 vote, to return the nomination to the Judiciary committee for further review on April 6,[16] the Senate rejected Carswell's nomination on April 8, 1970, by a 45–51 vote,[5] with 13 Republicans joining 38 Democrats in voting "no".[17]
Not since Grover Cleveland, in 1893–94, had the Senate rejected two of the president's Supreme Court nominees.[5][6] President Nixon accused Democrats of having an anti-Southern bias as a result saying, "... the real reason for their rejection was their legal philosophy, a philosophy that I share, of strict construction of the Constitution, and also the accident of their birth, the fact that they were born in the South ... I understand the bitter feelings of millions of Americans who live in the South about the act of regional discrimination that took place in the Senate yesterday."[6] Later that April, the president nominated Harry Blackmun to fill the Fortas vacancy. He was later confirmed in a 94–0 vote on May 12.[18]
On April 20, 1970, Carswell resigned from his judicial position to run for the Republican nomination for the U.S. Senate from Florida. His opponent was U.S. RepresentativeWilliam C. Cramer of St. Petersburg. Expecting to benefit politically in Florida from the rejection of Judge Carswell to the Supreme Court, aides of either GovernorClaude R. Kirk, Jr., or U.S. Senator Edward Gurney of Winter Park urged Carswell to resign from the bench to run for the Senate seat being vacated by the long-term Democrat Spessard Holland. Cramer claimed that Gurney had in a 1968 gentlemen's agreement agreed to support him for the seat. Gurney declined to discuss the gentlemen's agreement with Cramer but said that he and Cramer, who had been House colleagues, had "totally different opinions on this. That is ancient history, and I see no point in reviving things. … If I told my complete version of the matter, Cramer would not believe me, and I don't want Bill angry at me."[19] Gurney claimed that he was unaware that Cramer had considered running for the Senate in 1968 and had deferred that year to Gurney, with the expectation that Cramer would seek the other Senate seat in 1970 with Gurney's backing.[20]
When Kirk and Gurney endorsed Carswell, Lieutenant GovernorRay C. Osborne, a Kirk appointee, abandoned his own primary challenge to Cramer. Years later, Kirk said that he "should have stuck with Osborne", later an attorney from Boca Raton, and not encouraged Carswell to run. Kirk also said that he had not "created" Carswell's candidacy, as the media had depicted.[20]
Carswell said that he ran for the Senate because he wanted to "confront the liberals who shot me down" but denied that Kirk took advantage of the failed confirmation to thwart Cramer. "... Neither then nor now did I feel used. ... What feud they had was their own."[20] Carswell said that he had no knowledge of a gentlemen's agreement between Gurney and Cramer and had considered running for the Senate even before he was nominated to the Supreme Court.[20]
Carswell instead blamed his loss on the "dark evil winds of liberalism" and the "northern press and its knee-jerking followers in the Senate".[21]
Carswell reported that U.S. Representative Rogers Clark Ballard Morton of Maryland, who was also in 1970 the Republican national chairman, had told him that he believed Carswell was "clearly electable" and that Cramer should not risk the loss of a House seat that had been in Republican hands since 1955. Cramer, however, claimed that Morton had termed the intraparty machinations against Cramer the worst "double crosses" that Morton had ever witnessed in the party.[22] President Nixon sat out the Carswell-Cramer primary even though in 1969 he had strongly urged Cramer to enter the race. Deputy Press Secretary Gerald Lee Warren said that Nixon had "no knowledge and no involvement" in Carswell's candidacy.[23]
Cramer defeated Carswell, 220,553 to 121,281. A third contender, businessman George Balmer, received the remaining 10,947 votes.[24] Thereafter, Cramer was defeated, 54%–46%, by the Democrat Lawton Chiles of Lakeland in a Democratic year.
Senate Republican LeaderHugh Scott of Pennsylvania, who opposed Carswell's confirmation to the Supreme Court, said that Carswell "was asking for it, and he got what he deserved".[25]
Later years
In 1976, Carswell pled guilty to battery for advances he made to an undercover police officer in a Tallahassee men's room.[26][27] Then, in September 1979, Carswell was attacked and beaten by a man whom he had invited to his Atlanta, Georgia, hotel room in similar circumstances.[28] Until these incidents there had been no public talk of Carswell's sexuality.[27]
Carswell subsequently returned to his private law practice before retiring. He died in 1992 of lung cancer; his wife, Virginia, died in 2009.
