MOMENTS before voting began on the Carswell nomination, Robert Dole of Kansas turned his back on Vice President Agnew to speak directly to his fellow Republicans on the left side of the Senate chamber. Dole looked squarely at Marlow Cook of Kentucky, who had led the unsuccessful fight to confirm Clement Haynsworth. "The fate of G. Harrold Carswell rests on this side of the aisle," Dole said. "We will make the decision, as our votes will make the difference." Cook stared straight ahead. When his name was called to vote, he replied firmly: "No."
Given his championship of Haynsworth and the fact that he is a freshman Senator from a border state that has Southern proclivities, Cook seemed to be oddly cast in his defiant role. At the start, he wanted to stay and vote with the Administration on Carswell but, after long hours of Judiciary Committee hearings and his own examination of Carswell's record as a judge, Cook concluded that Carswell flunked the test of legal competence.
"He didn't pass the standards that I'd set with Judge Haynsworth," Cook, 43, told TIME Correspondent Neil MacNeil. "I'm a lawyer. I'd wanted to be one all my life, ever since I was a kid. The Supreme Court is something to me which is so awe-inspiring that I want to dedicate myself to seeing that the court gets back to the greatness it once had."
By Cook's account, he did not finally make up his mind until the eve of the vote, after the second of two visits to the White House. The first time, he talked with the President over coffee for more than an hour, explaining, lawyer to lawyer, his reservations about Carswell. Nixon explicitly asked him for his vote. Cook would not promise it. Said Nixon: "I understand, and if you have a problem on this you'll just have to go your own way." Next day Cook was back at the White House for a presentation of Medals of Honor—all of them awarded posthumously—to Viet Nam war heroes. Cook heard Nixon praise "the excellence of these people, the high degree of their efficiency." That did it. Said Cook: "Driving back, I thought to myself, what we are saying here is that these boys gave their lives —and we sitting up here are going to put on the Supreme Court someone from whom we don't demand a high degree of efficiency and excellence. It may sound corny, but that's what happened."