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The President's third and most important requirement was that the nominee fit his definition of "strict constructionism." The term is elusive and, to some, meaningless. Says the University of Chicago Law School's Harry Kalven: "The Constitution is full of grand ambiguities. How can you have strict construction of a grand ambiguity? The real issue is: What is responsible justice?" Last week in his television speech, Nixon suggested his own definition: "It is my belief that it is the duty of a judge to interpret the Constitution and not to place himself above the Constitution . . . He should not twist or bend the Constitution in order to perpetuate his personal, political and social views."
Kleindienst assembled a master list of more than 100 names, weighted in favor of judges. Only two or three women were on it. Many judges were excluded on grounds of age (65 or older) or ideology (too liberal and activist). Kleindienst pared the prospects down to 30, then, with Mitchell, reduced it to five. From that list, Nixon selected Burger and Haynsworth. Carswell and Blackmun were taken from the list of 30. In replacing Earl Warren, the President encountered no difficulty when he appointed Burger, a solid and magisterial Minnesotan. It was when he moved to fill Abe Fortas' seat with a Southern conservative that Nixon embarked on two of the nastiest fights of his presidency. Both South Carolina's Clement Haynsworth and Florida's G. Harrold Carswell were rejected by the Senate. The twin defeats infuriated Nixon, but he finally turned to Harry Blackmun, a diligent, uncontroversial Minnesota jurist who was quickly confirmed.
Nixon's first choice for a successor to Hugo Black was Virginia Representative Richard Poff, a Republican conservative admired for legal acumen by his colleagues in the House. The President was prepared to nominate Poff without further consideration. But the Congressman, who had said that his life's ambition was to sit on the Supreme Court, abruptly withdrew his name from consideration, unwilling to subject himself to the investigation and debate that he knew would follow. Mitchell then came up with Charles Clark of Mississippi and Paul Roney of Florida, both of whom Nixon had appointed to the Fifth Circuit Court of Appeals. Roney is a Republican lawyer with no prior judicial experience. Clark, a Mississippi lawyer, likewise had no earlier experience on the bench. Another Mitchell suggestion was Herschel Friday, a prominent Little Rock attorney who for 14 years had compiled a record of unsuccessful efforts to defend Arkansas school boards against desegregation. His firm's fees for such cases amounted to some $220,000.
Heated Outcry