AP My Error About the Supreme Court:


A fellow lawprof points to this excerpt:

The last time there were simultaneous vacancies at the court was 1971, when Justices Hugo Black and John Marshall Harlan retired in September, about a week apart. Rehnquist, then a Justice Department lawyer, urged the Nixon administration to move fast in replacing them. After Nixon's first two choices were harshly criticized, he named Lewis Powell and Rehnquist.

Unless I'm mistaken, though, the harsh criticism of Nixon's first two choices happened in 1969 and 1970, after Justice Fortas resigned and Clement Haynsworth and Harrold Carswell were rejected. Both Powell and Rehnquist were nominated in October 1971, and confirmed in December 1971.

Not a huge error (smaller than this one, for instance), but still a reminder to be careful when reading even highly reputable news sources, even when they are written by specialist journalists who have a generally fine reputation.

UPDATE: Except the error seems to be mine! Fellow lawprof Mark Tushnet reports:

The AP reporter was (almost certainly) referring to the brouhaha over Herschel Friday (for Black's seat) and Mildred Lillie (for Harlan's). Neither was officially nominated (or, as is the current practice, noticed officially as a "proposed nomination"), but Nixon's consideration of them was widely leaked and generated the opposition to which the AP reporter referred. John Dean's book, The Rehnquist Choice, goes through what happened in excruciating detail.
Aha! My apologies to the reporter, and to my readers, and my thanks to Mark for setting the record straight. Remember: Don't believe everything you read . . . .

Perhaps there's no error at all. If you read the sentence to mean "the first choices to fill the two vacancies," it would be correct. Had he meant two iterations of presumtive nominees, the author most likely would have spoken of "sets of choices," but have been speaking of four individuals.
7.6.2005 2:03am
Craig Oren (mail):
It would still be wrong. As I tried to say above, Haynesworth and Carswell were considered for the vacancy eventually filled by Blackmun, not for the later vacancies filled by Powell and Rehnquist. Haynesworth and Carwell were not "the first choices to fill the two vacancies."
7.6.2005 11:16am
John Beukema (mail):
The original post assumes that the article referred, incorrectly, to the Haynsworth/Carswell fiasco, which it doesn't explicitly do. But Pres. Nixon had similar, albeit less extreme, problems at the time of the Black and Harlan resignations. It was leaked to the press (whether from the White House or from the ABA Committee on Judiciary was disputed) that Nixon intended to nominate Herschel Friday, a private practitioner in Little Rock, and Mildred Lillie, a California Court of Appeals judge, to fill the vacancies. These rumored appointments were in fact "harshly criticized," and Rehnquist and Powell ultimately were appointed instead. See Henry J. Abraham, Justices &Presidents (2d ed. 1985) at 306.
7.6.2005 11:36am