Also important to note that Nixon had two failed nominations of more conservative judges.
I have recently been reading a good deal of modern analysis of the Bork and (original) Rehnquist nominations.
When Bork died in 2012, several writers asked what difference a successful Bork confirmation might have made to the Supreme Court. Examples can be seen from
Michael McConnell (presumably unrelated to Mitch McConnell),
Jack Balkin,
Damon Root (based on Balkin’s work), and
Ilya Somin (based upon Balkin’s work). So far as I know, no journal in 1992 made a similar study of what difference a successful Carswell confirmation would have made to later Court history.
Although
on paper a successful Carswell confirmation could have done no more about
Roe v. Wade and the simultaneous
Doe v. Bolton than change a 7—2 ruling into a 6—3 one, reading John W. Dean’s 2000
The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court made me re-think this simple hypothesis. Re the Bork affair, Jack Balkin argues that if Bork had been confirmed, Bush Senior would have felt no obligation to nominate a compromise candidate like David Souter to replace William Brennan in 1990, and would have chosen a strong conservative like Edith Hollan Jones, Kenneth Starr, or (unmentioned by Balkin) Pasco Bowman II. This does make reasonable sense. The most conservative of the Justices appointed between 1968 and 1992 – William Rehnquist, Antonin Scalia and Clarence Thomas – were all appointed after the preceding confirmation had been unanimous or nearly so (Souter was confirmed 90—9, but Anthony Kennedy was confirmed 97—0; whilst O‘Connor, Stevens and Blackmun were all confirmed unanimously).
If Carswell had got through, Nixon might have attempted to nominate someone more conservative than Powell, especially as with Carswell he would have met his demand for a Southerner. Dean in
The Rehnquist Choice say that, besides Southerners, Nixon was also very interested in appointing a politically conservative Catholic. If Nixon followed this, we could have seen
William Hughes Mulligan of the Second Circuit nominated alongside Rehnquist. Even if Nixon did not nominate a Catholic, a successful Carswell confirmation could easily have a seen a more conservative nominee instead of Powell, such as
Richard Harding Poff or
Paul Roney or
Alexander Bickel.
The question beckons as to how Chief Justice Warren Burger would have voted if Rehnquist, Byron White, Carswell and Mulligan provided four votes to uphold state restrictions on abortion? Might Burger have joined with this four-man conservative bloc, so that abortion advocates would lose 4—5?
