Over the Cliff

Richard Nixon's aides were cultivating a long-range historical view of the Supreme Court last week. After all, they said in quiet self-commiseration, the Senate quarreled for four months in 1916 before confirming Louis Brandeis' nomination--and whatever the cavils raised at the time, Brandeis went on to a long, distinguished career on the bench.

In the current case of Judge Clement Haynsworth, however, the White House attitude--a combination of stolidity and nervous optimism--increasingly sounded like whistling in the dark. Though the Senate Judiciary Committee last week cleared Haynsworth's nomination to the Supreme Court by a vote of 10 to 7, opposition to the appointment was gathering force, particularly among Republicans. At week's end the hard votes against Haynsworth among the 43 G.O.P. Senators numbered at least 14, and nine or ten more were undecided. Nixon did not have the assured support of even half of his party's Senators. An Associated Press poll counted 46 Senators against confirmation, 33 for and 21 undecided. If the figures are accurate, the opposition will need to capture only five of the undecided members in order to block the South Carolinian's confirmation.

It was the G.O.P. Senate leadership itself that caused much of the new damage to Haynsworth's cause. Minority Leader Hugh Scott has thus far supported the judge, but unhappily; up for re-election next year, Scott is not anxious to alienate blacks and union members in his industrial state by backing a jurist with an antilabor, anti-civil rights image (see THE LAW). Party loyalty could not hold either Assistant Minority Leader Robert Griffin of Michigan or Maine's Margaret Chase Smith, chairman of the Senate G.O.P. Conference. Both of them announced that they would vote against confirmation.

No Double Standard. Griffin, who led the Senate fight against approving Abe Fortas' nomination for Chief Justice last year, felt that he could not apply a double standard regarding judicial ethics. "Because confidence in the judiciary is so important at this time in our history," he said, "I believe that it was an unfortunate mistake for the Administration to submit the nomination."

The opposition was encouraged further when the American Bar Association, which originally supported Haynsworth's nomination, announced that it would have another look at the judge's qualifications. Scrutiny will focus on Haynsworth's alleged insensitivity to potential conflicts of interest. A negative reassessment by the A.B.A. would inevitably bring many undecided votes into the opposition column.

Also damaging were some remarks made privately by Bernard Siegel, former chairman of the A.B. A.'s Committee on the Federal Judiciary. Siegel is deeply upset by Haynsworth's nomination, believing that it violates the principles that he tried to establish on the judiciary committee. Were he still chairman of the group, Siegel has let it be known, he would probably have testified against the nomination in Senate hearings.

Standing By. As Haynsworth's chances seemed to fade, his supporters mounted something of a counterattack. One of the first cries came from the judge's principal champion in the Senate, and fellow South Carolinian, Democrat Ernest Rollings. With the air of a duelist, Hollings challenged Indiana's Birch Bayh, leader of the block-Haynsworth movement, to a television debate (Bayh refused). Then Kentucky's G.O.P. Freshman Senator Marlow Cook issued a broadside against Bayh's charges that Haynsworth, while sitting on the Fourth Circuit Court of Appeals, ruled on cases involving companies in which he held stock. Haynsworth, said Cook, was being subjected to "character assassination." At the same time, Cook was unhappy with Attorney General John Mitchell for not providing Haynsworth supporters with full details on the judge's background so that they could refute some of the charges.

For the moment, the Administration was sticking doggedly to its choice, although even some conservatives--including Texas' Senator John Tower --have tried to persuade Nixon to withdraw Haynsworth's name. "The question now," said a Justice Department official, "is whether the President is going to govern or cave in. He feels it is better to lose than pull back. We are going over the cliff on this one." Others believe that Nixon will stand by Haynsworth at least as long as the outcome of the Senate battle remains in doubt. A floor vote is unlikely for several weeks. What of Haynsworth's staying power? The judge is a Southern aristocrat with little experience in or stomach for the kind of wrenching conflict he is going through. Hollings has already hinted that Haynsworth might pull out of his own accord, a solution that could save himself and the Administration further grief.

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