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James Clayton, 87, Wash Post editorialist who helped derail Carswell SCOTUS nomination (1970)
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That Derek
2017-10-21 00:11:27 UTC
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https://www.washingtonpost.com/local/obituaries/james-clayton-washington-post-editorial-writer-who-helped-halt-a-supreme-court-nominee-dies-at-87/2017/10/20/82bc58f8-b4f4-11e7-a908-a3470754bbb9_story.html?utm_term=.dd8b8843b574

Obituaries

James Clayton, Washington Post editorial writer who helped halt a Supreme Court nominee, dies at 87

By Adam Bernstein

October 20 at 10:59 AM

James E. Clayton, a judge’s son who in 1960 became The Washington Post’s first full-time U.S. Supreme Court reporter and later wrote stinging editorials that helped deny federal judge G. Harrold Carswell a seat on the high court in part because of his troubling record on civil rights, died Oct. 16 at a hospital in Arlington, Va. He was 87.

He had heart and lung ailments, said his son David Clayton. He was an Arlington resident.

According to an official history of The Post, publisher Philip L. Graham — a Harvard Law School graduate who had clerked for two Supreme Court justices — fielded constant complaints about the newspaper’s reporting on the high court. It was inconsistent, at best.

Seeking a full-time beat writer, the newspaper’s editors tapped Mr. Clayton. After being hired onto the local desk in 1956, he had won awards for his coverage of the District’s judicial system and had periodically written about Supreme Court rulings. In 1960, The Post sent Mr. Clayton to Harvard Law School for a six-month primer on constitutional law.

Over the next four years that he covered the high court, the local newspaper guild and the American Bar Association honored him for his penetrating coverage of rulings regarding legislative apportionment, school prayer and the right to counsel.

He wrote a critically acclaimed book, “The Making of Justice: The Supreme Court in Action” (1964), that distilled the rulings from the 1962-63 docket. Mr. Clayton described in layman’s terms how the cases wound their way through the courts, and he illuminated the legal rituals and other forces at work behind the scenes.

“We see not black robes but men in the flesh, laboring not only with intellect but with feeling, and sometimes with passion, toward balanced reconciliation of competing values,” Columbia University law professor Louis Lusky wrote in a New York Times review. “We see the intense pragmatism . . . with which the Justices and counsel probe for the practical consequences of one position or another.”

“Because of the insight it affords into the least understood of our major government organs,” Lusky concluded, “the book must be recognized as a near approach to the pinnacle of the journalists’s art.”

Mr. Clayton, who had also written about civil rights in the Deep South and NASA lunar expeditions, soon began writing for The Post’s editorial page. His most distinguished work focused on Carswell, lambasting his legal record and personal judgment and denouncing his suitability for the most powerful court in the land.

The seat on the high court had been vacated in 1969 after associate justice Abe Fortas had been forced to resign amid accusations of financial impropriety, including the acceptance of a secret retainer of $20,000 from a foundation tied to a Wall Street financier convicted of securities violations.

President Richard M. Nixon’s first nominee, federal judge Clement F. Haynsworth Jr., was rejected by the Senate, by a 55 to 45 vote, after protests from labor and civil rights groups on his legal record.

Nixon next proposed Carswell, another conservative Southerner, who sat on the U.S. Court of Appeals for the 5th Circuit. Reporters uncovered old speeches in which Carswell promoted segregation and white supremacist views and noted his ownership and sale of land in Florida with a “whites only” covenant. Women’s activists highlighted what appeared to be his unsympathetic views toward female litigants. Legal peers also questioned his qualifications and noted his inordinately frequent reversals by high

Mr. Clayton forcefully marshaled all the information and presented it in compelling commentaries that had a major political impact.

“The evidence in this case is so strong, the record so clear that there should not be the slightest qualms in the Senate about rejecting this nomination outright,” Mr. Clayton wrote in one editorial. In other, he added: “To confirm him would be to send yet one more signal of indifference at best, and contempt at worst, not just for minorities already short on hope, but for values and institutions which are in urgent need of more, not less, respect.”

Mr. Clayton’s editorials won two prestigious journalism honors, the Worth Bingham Prize and the George Polk Memorial Award. His citation for the second cited “editorials that vigorously alerted the U.S. Senate to the full record and meaning of G. Harrold Carswell, and drastically influencing its vote on his nomination.”

Vice President Spiro T. Agnew assailed the “liberal media” for Carswell’s defeat in the Senate, on a vote of 51 to 45, which marked the first time since 1894 that two Supreme Court nominees had been rejected for a single seat. In May 1970, federal judge Harry A. Blackmun of Minnesota was confirmed by the Senate without opposition.

James Edwin Clayton, whose father was a city court judge, was born in Johnston City, Ill., on Nov. 14, 1929. After Army service during the Korean War, he graduated from the University of Illinois in 1953 and received a master’s degree in public administration from Princeton University in 1956.

In 1961, he married Elise Heinz, a Harvard Law School graduate, Equal Rights Amendment lobbyist and two-term Democratic member of the Virginia House of Delegates. She died in 2014. Survivors include two sons, Jonathan Clayton of Houston and David Clayton of Alexandria, Va.; and four granddaughters.

At The Post, Mr. Clayton had a brief stint as assistant managing editor for sports and then held the title of associate editor, writing for the editorial page, from 1974 to 1982. He also edited “The Rights of Free Men” (1983), a collection of editorials by the late Alan Barth of The Post. He served on the board of the American College of Sofia, a high school in Bulgaria where he had family ties.

But it was the Carswell firestorm that remained his most enduring legacy. Mr. Clayton was among the prominent voices thundering about the judge’s inadequacy, which provoked a backlash from some conservatives. Sen. Roman L. Hruska (R-Neb.) rose to Carswell’s defense with a memorable line of reasoning.

“Even if he were mediocre,” Mr. Hruska maintained, “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.”
Bryan Styble
2017-10-21 01:46:34 UTC
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I always loved the fact that the late Judge Carswell had that extra R in his given name.

Carnac the Magnificent 1969 psychically-sensed prediction of the question answered by the phrase "Judge Carswell": "What does GM say Ralph Nader can't do?"

Oh, and speaking of rejected nominees for The Supremes: can anyone herein answer a constitutional question I've been quizzing folks on for years--both on the street and over the commercail newstalk radio airwaves--without anyone as yet confidently responding:

When the Senate votes down a nominee, is that rejection purely of that nomination ONLY, or for all time regarding that nominee? That is, should Bush 41 have wanted--say, instead of Clarence Thomas, thus avoiding the entire Anita Hill interlude--to give late rejected Reagan nominee (and George Will pal!) Robert Bork a second shot, could Bork have been confirmed--after another serious but disingenuous Democrat borking, no doubt--by that later Senate for appointment to the Court, or does a single Senate no-vote stand forever for that individual? *

Thanks in advance to any legal scholar who can settle this!

BRYAN STYBLE/Florida
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* As for as I know, no President has attempted such a nomination, so it's just possible that this is a question which might someday have to be decided by SCOTUS!
Anglo.Saxon
2017-10-21 04:18:25 UTC
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Post by Bryan Styble
I always loved the fact that the late Judge Carswell had that extra R in his given name.
Carnac the Magnificent 1969 psychically-sensed prediction of the
question answered by the phrase "Judge Carswell": "What does GM say Ralph
Nader can't do?"
Post by Bryan Styble
Oh, and speaking of rejected nominees for The Supremes: can anyone
herein answer a constitutional question I've been quizzing folks on for
years--both on the street and over the commercail newstalk radio
Post by Bryan Styble
When the Senate votes down a nominee, is that rejection purely of that
nomination ONLY, or for all time regarding that nominee? That is, should
Bush 41 have wanted--say, instead of Clarence Thomas, thus avoiding the
entire Anita Hill interlude--to give late rejected Reagan nominee (and
George Will pal!) Robert Bork a second shot, could Bork have been
confirmed--after another serious but disingenuous Democrat borking, no
doubt--by that later Senate for appointment to the Court, or does a single
Senate no-vote stand forever for that individual? *
Post by Bryan Styble
Thanks in advance to any legal scholar who can settle this!
BRYAN STYBLE/Florida
________________________________________________________________________
___
Post by Bryan Styble
* As for as I know, no President has attempted such a nomination, so
it's just possible that this is a question which might someday have to be
decided by SCOTUS!

I feel a strong Pineapple Express coming on.
Bryan Styble
2017-10-21 04:30:33 UTC
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Uh...once again you've exposed how marginal my intellect unfortunately is, Anglo: I've zero idea what--or who?--a (or the?) Pineapple Express is. (Am I being too cynical to presume it's something vulgar?)

Meanwhile: can you or anyone even semi-authoritatively settle my proffered constitutional question?

STYBLE/Florida
c***@aol.com
2017-10-21 04:33:31 UTC
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Each nomination is a separate thing. It is conceivable to nominate a rejected nominee for ANY office. Nothing prevents it. But in practice it’s unlikely to happen.
Bryan Styble
2017-10-21 05:20:44 UTC
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Thanks for your analysis, Cathy!

I too noticed that nothing in The Constitution specifically prohibits such a second-chance nomination, but ALSO note it is silent on the matter. That circumstance, it seems to me, sets the stage for anyone opposing such a second-shot nominee, should some POTUS ever decide to try this sometime, to challenge it constitutionally in federal court, as I theorized in the footnote to my original posting. It could be argued that The Founders intended for a single Senate rejection to apply to the nominee rather than to the nomination because the process is at root about the nominee's fitness for the office, which presumably would not evolve. Of course, that position most credibly be argued from only a conservative perspective, given that liberals so seldom pay fealty to so-called original intent.

And as I said, it would be a case that would surely have to ultimately be ruled on by SCOTUS, ironically enough, with any justices who might have been seated after such an ascension obviously recusing themselves from the case.

Can anyone see any weaknesses--or even factual errors--in my analysis? And again, what in tarnation is a Pineapple Express? (And what--or where?--in the heck is tarnation?)

BRYAN STYBLE/Florida
Anglo.Saxon
2017-10-21 06:52:39 UTC
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Post by Bryan Styble
Thanks for your analysis, Cathy!
Post by Bryan Styble
Can anyone see any weaknesses--or even factual errors--in my analysis?
And again, what in tarnation is a Pineapple Express? (And what--or
where?--in the heck is tarnation?)
Post by Bryan Styble
BRYAN STYBLE/Florida
Seems like just yesterday you were the recipient of one of the mightiest
blows ever delivered by the Hawaiian Punch possee. I'm not surprised you
don't remember; it made Marciano look like he was throwing a ham sangwich.
The Pineapple Express should be old news to a radio weather announcer such
as yourself. Now, tell me, why did Bob Hardwick kill himself? (BTW, nice
pun on the tarnation thing.)
Bryan Styble
2017-10-21 08:33:47 UTC
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Oh, an Hawaiian Punch is a nasty hurricane, eh? (Or I guess in the case of Andrew and Harvey, a hisicane?)

So, thanks for the clarification, 'Glo! Meanwhile, I'm now heading up my highrise condo's roof this morning just like I did yesterday, hoping to this time binocularly spot Uranus* (and in turn Neptune, just a few degees to its west), which both this week are rather optimally positioned in their respective upwards-of-a-century-long orbits for viewing from the northern hemisphere, each dimly lurking--along the ecliptic, of course--in the southeast sky just a bit beneath the Andromeda Galaxy...

STYBLE/Florida
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* Which through many dozens of mentions on the airwaves of my local commercial call-in radio broadcasts** around The Lower 48 1989-2013, the variant pronunciation I invariably employed--upholding my genteel broadcast policies which cushion both the ear and mind--was "YOUR-un-us".
** Always quite astronomically-hip, 'natch!
Bryan Styble
2017-10-21 08:34:57 UTC
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Oh, and i didn't get the Hardwick joke. (Sorry to be so dimwitted; I was born that way.)

STYBLE/Florida
c***@aol.com
2017-10-21 11:19:21 UTC
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A law professor friend said to me “it is the nomination not being agreed to, not the nominee.”

That sounds like splitting hairs but I think I understand what he’s saying.
Bryan Styble
2017-10-21 12:50:06 UTC
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After reviewing my original posting--I believe digital buffs abbreviate that OP--it's clear I incoherently related the Carnac* gag about ol' G. Harrold. But at least I didn't mangle the punch line. (Nor did I burden your minds with all that since-noon-yesterday-and-kept-hermetically-sealed-in-a-mayonaise-jar... shtick.)

And besides, it's well known that many people's** favorite Carson bit was in fact a format lifted directly from the showbiz-sainted Steverino's longtime Answer Man routine.

BRYAN STYBLE/Florida
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* Or Carnak, perhaps?
** Including mine, as it happens***.
*** Actually, I preferred his El Moldo the psychic, but I don't think I saw him do that more than two or three times.
J.D. Baldwin
2017-10-21 16:29:15 UTC
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Post by Bryan Styble
When the Senate votes down a nominee, is that rejection purely of
that nomination ONLY, or for all time regarding that nominee? That
is, should Bush 41 have wanted--say, instead of Clarence Thomas,
thus avoiding the entire Anita Hill interlude--to give late rejected
Reagan nominee (and George Will pal!) Robert Bork a second shot,
could Bork have been confirmed--after another serious but
disingenuous Democrat borking, no doubt--by that later Senate for
appointment to the Court, or does a single Senate no-vote stand
forever for that individual?
Nominees are confirmed with the "advice and consent of the Senate."
Consent may be withheld ... withheld ... withheld ... then granted,
and that last action is obviously going to be enough. (Just as it is
in so many other areas of law and life.) So theoretically, nothing
would prevent resubmission of a rejected nominee. As a practical
matter, if one senator were persuaded to change his vote (or show up
after an absence) after a one-vote defeat, it might even happen.
--
_+_ From the catapult of |If anyone objects to any statement I make, I am
_|70|___:)=}- J.D. Baldwin |quite prepared not only to retract it, but also
\ / ***@panix.com|to deny under oath that I ever made it.-T. Lehrer
***~~~~----------------------------------------------------------------------
David Carson
2017-10-21 16:31:50 UTC
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On Fri, 20 Oct 2017 18:46:34 -0700 (PDT), Bryan Styble
Post by Bryan Styble
I always loved the fact that the late Judge Carswell had that extra R in his given name.
Carnac the Magnificent 1969 psychically-sensed prediction of the question answered by the phrase "Judge Carswell": "What does GM say Ralph Nader can't do?"
When the Senate votes down a nominee, is that rejection purely of that nomination ONLY, or for all time regarding that nominee? That is, should Bush 41 have wanted--say, instead of Clarence Thomas, thus avoiding the entire Anita Hill interlude--to give late rejected Reagan nominee (and George Will pal!) Robert Bork a second shot, could Bork have been confirmed--after another serious but disingenuous Democrat borking, no doubt--by that later Senate for appointment to the Court, or does a single Senate no-vote stand forever for that individual? *
There's no Constitutional reason why the president couldn't re-nominate
someone to the same seat immediately after being rejected. It probably
wouldn't happen, but it could.

David Carson
--
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