Why Take A Chance? Harrold Carswell And Supreme Court Credentialism

Making a decision with major historical consequences, Abe Fortas resigned from the Supreme Court on May 14, 1969. As part of the Southern Strategy Nixon wanted to replace Fortas with a southerner. After he failed to persuade the Virginian Lewis Powell — who he would finally get later — Nixon first nominated Clement Haynsworth, a well-regarded but very conservative 4CA judge. Haynsworth was rejected by a 55-45 vote. Nixon being Nixon, he decided to go further right and further south with G. Harrold Carswell. Carswell was…not well-regarded, as reflected in Roman Hruska’s legendarily Nixonian-in-multiple-senses defense:

Even if he was 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 and Cardozos and Frankfurters and stuff like that there.

Hruska was kidding (well, not about the anti-Semitism), but it also pretty much reflected the Nixon administration’s view of their nominee, according to John Ehrlichman’s contemporaneous notes:

Despite being more reactionary — having expressed unambiguous segregationist views when running for office — and more weakly credentialed, Carswell actually came closer to being confirmed than Haynsworth, losing by a six-vote margin (51-45.) Creswell was a worse nominee, but there was also a strong norm that it would be highly unusual to reject a second nominee. As Kevin McMahon points out in his excellent Nixon’s Court, according to the political science models there were five “ideologically deviant” votes — votes who would have been expected to vote for him but didn’t — enough to make the difference. And several of these, most notably William Fulbright, made Carswell’s lack of elite credentials central to their opposition. It is very likely that if someone with Carswell’s record but an Ivy League degree could have been confirmed.

Since then, of course, there has been an overwhelming pattern:

Blackmun (Harvard Law)

Powell (Harvard)

Rehnquist (Stanford)

O’Connor (Stanford)

Scalia (Harvard)

Kennedy (Harvard)

Souter (Harvard)

Thomas (Yale)

Ginsburg (Columbia, almost certainly would have gotten an HLS degree if she was a man)

Breyer (Harvard)

Roberts (Harvard)

Alito (Yale)

Sotomayor (Yale)

Kagan (Harvard)

Garland (Harvard)

Gorsuch (Harvard)

Kavanaugh (got into Yale Law School. Worked his tail off.)

There have been only a handful of deviations from the trend:

• John Paul Stevens (Northwestern) Stevens is a bit of anomaly, because he wasn’t just any Northwestern grad but a legendary academic superstar — I think at the time of hid nomination he still had the highest GPA of any graduate in the school’s history. And even more importantly, this was the time that feels like 200 years ago when Ford felt that one of the Court’s greatest liberals couldn’t be replaced with a Rehnquist-style reactionary. Stevens was acceptable enough to Senate liberals not to need the Ivy League pedigree.
• Robert Bork got his law degree from Chicago, and was justifiably rejected for this reason alone. (I keed, I keed.) Seriously, nobody questioned Bork’s abilities — his degree was slightly outside HYS but he taught at Y — but unlike Stevens he was eminently rejectable on ideological grounds.
• Harriet Miers (SMU) exemplifies why presidents focus on the same 2 law schools when making nominations.

Now, I still think this hyper-narrow focus is a little silly — there’s evidently a vast excluded middle between “Harvard/Yale” and “doesn’t know the difference between Earl Warren and Warren Burger.” And there may finally be a break in the trend; if RBG is replaced by a Republican is will probably be Notre Dame’s Amy Coney Barrett, who will almost certainly get an easier ride than Kavanaugh. But you can understand why this risk aversion happens. Formal credentials are one reason senators can reject your nominee, so why take a chance? At least that’s how presidents seem to feel about it.

Some useful historical context:

Here’s a graph showing the trend toward nominees who graduated from Harvard/Yale/Columbia (as well as Top-14 in general) over time since 1790: pic.twitter.com/8i7OrAhis8— John Kastellec (@JKastellec) June 13, 2019