The Nation: Nixon's Not So Supreme Court

WITH the death of Justice Hugo Black and the simultaneous retirement of Justice John Harlan, President Nixon had an unusual opportunity to redress the embarrassment of his two unsuccessful Supreme Court nominations— G. Harrold Carswell and Clement F. Haynsworth. Surely he must now avoid renewed humiliation by proposing Justices of impeccable credentials and unquestioned eminence. But last week, when the names of six potential appointees, including two women, were made known, Richard Nixon once again demonstrated his inability or unwillingness to nominate renowned jurists to the highest tribunal in the land.

That the President was opting for mediocrity and playing politics at the same time became obvious when the White House first floated the name of U.S. Senator Robert Byrd of West Virginia. Nixon would be hard-pressed to find a candidate less qualified than Byrd or one more certain to touch off bitter controversy around the country—if not in the Senate, where Byrd replaced Teddy Kennedy as Democratic whip this year.

Eat Crow. An organizer for the Ku Klux Klan in the '40s, an affiliation he has since recanted, Byrd, 53, has a less than statesmanlike record in the Senate. There he has consistently sided with Southern conservatives on civil rights issues and is noted for his "industry" rather than his legal erudition or constitutional insight. Indeed, he has never practiced law. He earned his law degree in 1963 by studying at night, and has yet to pass a bar examination. Even Attorney General John Mitchell demurred when Byrd's name was raised. But one account has it that Treasury Secretary John Connally, Democrat and close presidential confidant, thought that nominating Byrd would be a master stroke and urged Nixon on.

Connally's thesis, reportedly, was that picking Byrd would make the Senate eat crow. After rejecting Haynsworth and Carswell, it would now be faced with rejecting one of its own members. Even Byrd's Senate critics would find themselves in a corner. Connally argued that the Senate would have to approve him because he was a member of the club. The assessment was probably correct. A quiet Administration nose count indicated that fewer than ten Senators would vote no.

As speculation—and dismay—over a Byrd nomination spread, however, White House sources began insisting that he was not a serious candidate. Yet his name appeared on the list of potential appointees submitted to the American Bar Association last week. The others:

HERSCHEL H. FRIDAY, 49. "For once Nixon has not latched on to a raving incompetent " says Philip Kaplan, a civil rights attorney who has opposed Friday many times in court. "But still, he's the wrong man for the wrong job at the wrong time." Friday is a smiling but unprepossessing lawyer whose firm is the leading legal defender of segregation in Little Rock public schools. Admits former Arkansas Governor Winthrop Rockefeller: "There are other people I would have thought of first." Friday, a Democrat, is a friend of Attorney General Mitchell, a fellow expert on municipal and corporate bond law.