WELLS — What do Republicans Margaret Chase Smith and Susan Collins have in common? The first woman elected to both the House and the Senate had the chance to shape the future of the Supreme Court of the United States. Now, Maine’s sitting senior senator has the same opportunity.
In 1969, President Richard Nixon nominated Clement F. Haynsworth Jr., a Republican, to replace Democrat Abe Fortas on the Supreme Court. A nominee of President Lyndon Johnson, Fortas was confirmed to the court in 1965. In 1968, serious charges of ethical insensitivity on Fortas’ part led Johnson to withdraw Fortas’ nomination to be promoted from associate justice to chief justice. In May 1969, additional charges of impropriety eventually culminated in Fortas’ ignominious resignation from the court altogether, under the threat of impeachment.
When charges of ethical insensitivity were subsequently leveled against Haynsworth, Fortas’ forced resignation placed additional pressure on all senators. Would these senators impartially apply the same standard in assessing the alleged improper behavior of Haynsworth that they applied in regard to Fortas?
Most senators did not do so. Conservatives and Republicans generally voted in opposition to Fortas’ nomination as chief justice and in favor of Haynsworth’s nomination as associate justice. Likewise, Democrats and liberals generally did just the opposite. Of the 78 senators who voted on both nominations, just eight treated both nominees the same.
And what about Smith?
Smith had openly opposed the nomination of Fortas, a Democrat, to be chief justice on grounds of his ethical insensitivity. Still, the acid test, the one failed by most senators, was whether Smith would apply the same standard in evaluating a conservative Republican Supreme Court nominee.
Smith encountered immense pressure regarding the Haynsworth nomination. Many Nixon supporters emphatically expressed to Smith their desire to see a conservative Republican added to the court. In correspondence with Maine’s future independent governor, James B. Longley, on Oct. 17, 1969, Smith reported “taking quite a beating from vitriolic letters” urging she “support Haynsworth simply because he is the nominee of a Republican president.”
Disturbed by Haynsworth’s careless approach to judicial propriety, Smith sent a private letter to President Nixon stating she could not support the nomination. She noted that the similarities between the serious ethical transgressions by Fortas and the conflict-of-interest concerns involving Haynsworth left her no other choice. To do otherwise, she wrote, would force her to “adopt a double standard.” She urged the president to withdraw the nomination.
When Nixon refused to do so, Smith publicly announced her opposition. In an Oct. 8, 1969, Senate address, she concluded, “I don’t believe in a double standard. Nor do I see a political justification for … placing party loyalty ahead of conscience.”
On Nov. 21, 1969, the Senate rejected the Haynsworth nomination by a 45-55 margin. A swing of five votes would have placed Haynsworth on the court. Smith’s announced opposition reportedly encouraged at least four other Republican senators to vote against confirmation. The New York Times reported that Smith’s announced opposition had dealt the nomination a “severe jolt.”
How might Smith’s role in the Haynsworth rejection be instructive to Collins today? Collins, too, is being called upon to support a controversial nominee, and she also has encountered enormous pressure trying to influence her decision. Both appear to have just cause to place principle ahead of partisanship and cast a vote against confirmation. For Smith, the principle controlling her action was concern over the perception of impropriety on the part of a judicial nominee. For Collins, that principle is the right to choose recognized by Roe v. Wade, which faces the strong likelihood of being overturned and/or significantly undermined if Brett Kavanaugh is confirmed.
Many on both sides have urged Collins to follow their views in making her decision. That’s the democratic way. Still, Smith’s legacy points to an urgency much greater than anyone else’s in seeking to influence Collins’ vote.
In an earlier typed draft of her Senate statement of opposition to Haynsworth’s nomination, a penciled-in line appears in Smith’s own handwriting. Somehow, the line never made it into the final version. Fittingly, that unpublicized line best characterizes the lesson that Collins might discern from her Senate predecessor. Smith had written, simply, “One believes or doesn’t believe in principle.”
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