The Last Great Senate

by Ira Shapiro

  chapter 19

  FIGHTING TO SURVIVE

  BIRCH BAYH SAT IN HIS OFFICE IN AUGUST 1980, RUEFULLY CONTEMPLATING his prospects. Bayh had intensely enjoyed chairing the new Senate Intelligence Committee, but no one could have predicted this assignment. With only a few months left before the election in which both the president and he would be running, it looked as though he would have to take on Jimmy Carter in a most awkward and embarrassing way: by investigating the activities of the president’s brother. However, just like Gaylord Nelson with the ethics code, Howard Baker with the Panama Canal, or Scoop Jackson with the natural gas legislation, Bayh understood that great senators did not always get to pick and choose their defining issues.

  Bayh had originally won his Senate seat from Indiana in 1962, with an upset victory against veteran senator Homer Capehart. Elected at thirty-four, a lawyer and a farmer who had only served in the Indiana state legislature, Bayh came to the Senate with an “aw shucks,” wide-eyed freshness that was as genuine as it was rare. He was stunned one night in his first year in the Senate, on the presidential yacht Sequoia, when Everett Dirksen, the Republican leader from the neighboring state of Illinois, spent an hour telling Bayh what he had to do to get reelected. Plainly, he had made it into the Senate club.

  His first term was solid but unspectacular. Nationally, he became best known for dragging his friend Ted Kennedy to safety when the small plane carrying them had crashed on the night after the vote on the Civil Rights Act of 1964. But serving on the Judiciary Committee, he also played an important role in the adoption of the Twenty-fifth Amendment to the Constitution, dealing with the thorny problem of presidential disability and succession.

  Once safely reelected in 1968, Bayh naturally envisioned taking a more prominent role in the Senate. Like other liberal Democrats, Bayh detested Judiciary chairman James Eastland’s views on everything, but like surprisingly many other liberal Democrats, he got along well with Eastland personally. In 1969, this relationship paid off when Eastland informed Bayh that he would be named chairman of the Subcommittee on the Constitution. Given the subcommittee’s jurisdiction, which included the inflammatory issues of gun control, school prayer, and busing, Bayh joked that he was not sure whether Eastland was trying to do him a favor or end his career.

  It proved to be a favor; Bayh’s new assignment brought him national attention within months. Richard Nixon was intensely committed to remaking the Supreme Court “in his own image.” After securing quick confirmation of Judge Warren Burger to replace Earl Warren as Chief Justice, the Nixon White House and Attorney General John Mitchell pressured Justice Abe Fortas, bloodied from Johnson’s effort to elevate him to Chief Justice, to resign from the Court. With a new vacancy to fill, Nixon looked to the South for his next nomination and selected Judge Clement Haynesworth, a respected conservative judge from the U.S. Court of Appeals for the Fourth Circuit.

  It looked like an unbeatable nomination, but the Senate Democrats, still angry about the treatment of Fortas, were itching for a fight. As subcommittee chairman, Bayh quickly took the lead of the coalition to oppose Haynesworth. He relished the constitutional issues involved and loved working with the unions, civil rights organizations, and other liberal groups that were major forces in the Democratic Party nationally. The judge’s opinions in labor and civil rights cases provided ample ammunition to oppose him, and he had opened himself to criticism by adjudicating several cases involving companies in which he held stock. On November 21, 1969, the Senate rejected the nomination of Clement Haynesworth by a vote of 55–45, with seventeen Republicans joining thirty-eight Democrats, making Birch Bayh a bright new star among national Democrats.

  During the Haynesworth fight, Bayh visited Bill Fulbright to make the case that Haynesworth should be rejected. After hearing out Bayh’s argument, Fulbright protested, “I know this president. If we reject this nominee, the next one will be worse.”

  Fulbright was right. Incensed by the Senate’s action but determined to continue advancing his “southern strategy” of rebuilding a Republican majority, Nixon quickly nominated another southerner, Judge G. Harrold Carswell, who also served on the Court of Appeals for the Fifth Circuit. Clear signs existed that Carswell lacked Haynesworth’s stature as a judge, but Nixon gauged that the Senate would not be up to a second bruising confirmation battle.

  Initially, it appeared that Nixon had guessed correctly. Los Angeles Times bureau chief Robert Donovan wrote that “Senators are mostly in no mood for another such donnybrook.” However, damning press reports soon emerged about Carswell’s past. CBS Evening News reported that in 1948, running for the Florida state legislature, Carswell told an American Legion rally that he would be “the last to submit to any attempt” to end segregation. This comment alone might have been dismissed as a youthful indiscretion of a sort not unknown to senators. But Carswell’s statement went on to say: “I yield to no man . . . in the firm, vigorous belief in the principle of white supremacy, and I shall always be so governed.”

  Talented, energetic, empowered staff members provided some of the lifeblood of the Senate, and occasionally, those staff members would get out ahead of their principals, knowing (hopefully) how much rope they had to play with. On January 23, 1970, just four days after the nomination, Jim Flug, Ted Kennedy’s subcommittee staff director, stepped forward to lead the opposition. Flug sat down with aides to Bayh, Phil Hart, Joseph Tydings, and civil rights and labor lobbyists. Most of the people in the room thought it was important just to make an effort against Carswell. Flug argued that the nomination could actually be defeated. He sent Senator Kennedy a memo entitled “How to Beat Carswell” that said, “I smell blood. I think it can be done if we get the full civil rights apparatus working, which it’s beginning to do.”

  Overcoming his initial reluctance, Bayh again assumed leadership of the opposition to Nixon’s nominee. When the floor debate ensued, Bayh declared that Carswell’s “incredibly undistinguished career as an attorney and jurist is an affront to the Supreme Court. . . . I do not think we can let our standards sink to the low level suggested by the present nominee.” Republican Senator Roman Hruska of Nebraska, the ranking member on the Judiciary Committee, gave a response that would become one of the most famous in Senate history. “Even if he were mediocre,” Hruska huffed, “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 and Frankfurters and Cardozos and stuff like that there.”

  Even after that less-than-glowing defense, the Carswell nomination remained in doubt until the day of the vote. But on April 8, 1970, the Senate rejected the nomination by a vote of 51–45, with thirteen Republicans joining thirty-eight Democrats. Flug, the staff architect of Carswell’s defeat, sat in the back of the Senate, laughing with tears of joy, saying “I just can’t believe it. It’s too good to believe.”

  Nixon had become the first president since Grover Cleveland to have two Supreme Court nominations rejected. Enraged, Nixon went to the White House Press room where he told the country, “A confirmation was not possible for a judge on the Supreme Court of any man who happens to believe in the strict construction of the Constitution, as I do, if he happens to come from the South.” Under those circumstances, Nixon said he would ask the attorney general to give him the name of a northern jurist who was a strict constructionist.

  The next week, Nixon nominated Judge Harry Blackmun, who served on the Court of Appeals for the Eighth Circuit, a friend of Warren Burger’s since childhood and best man at his wedding. The Senate, delighted by Blackmun’s credentials and weary of confirmation battles, confirmed him by a 94–0 vote.

  In the ongoing war over the makeup of the Supreme Court, Nixon won the first round: preventing Fortas from being elevated, getting Burger confirmed as Chief Justice, and forcing Fortas off the court to create another vacancy. The Senate had won the second: defeating Haynesworth, defeating Carswell, and confirming Blackmun, who wo
uld prove to be an independent thinker, quickly evolving into a stalwart of the Court’s liberal wing and authoring the Roe v. Wade decision in 1973. There would be a decisive third round almost immediately, and again Bayh would play a leading role.

  The age and infirmity of Justices Hugo Black and John Harlan gave Nixon two more seats to fill in 1971. After much deliberation, including flirtations with the idea of Howard Baker and Robert Byrd as possible nominees, Nixon chose Lewis Powell, a superb Virginia lawyer esteemed in the bar, and William Rehnquist, a relatively unknown lawyer from Arizona, who had served for two years as assistant attorney general for legal policy in Nixon’s Justice Department.

  Plainly, Rehnquist was a brilliant legal mind. He had graduated first in his class from Stanford Law School and served as a clerk for Justice Robert Jackson before entering law practice. But Rehnquist, unlike Powell or Burger, was not mainstream conservative. In Rehnquist, Nixon had found a right-wing legal thinker who could, over time, change the direction of the Supreme Court. Nixon recognized that he was nominating “a guy who’s there for thirty years, and also, if a Republican is around, a potential chief justice.”

  Rehnquist had compiled a lengthy paper trail as assistant attorney general. Taken together, the memoranda he had written constituted a blueprint for a radical reversal of Supreme Court jurisprudence in the areas of criminal law and the First Amendment. The Senate Judiciary Committee, with Bayh again taking the lead, wrote to Rehnquist requesting any memoranda that he had written, but Rehnquist declined the request, citing attorney-client privilege. Amazingly, the Judiciary Committee accepted this assertion of privilege, rather than precipitate a Constitutional clash. The clear majority of the committee either favored Rehnquist’s nomination or had simply tired of fighting Nixon’s nominees.

  With the written expression of his legal views well hidden, Rehnquist got through his confirmation hearings by saying as little as possible. Evidence emerged that he had challenged African American and Hispanic voters at the polls in Phoenix, but it had little impact. There was ample reason to believe that Rehnquist was more radical than either Haynesworth or Carswell, but Bayh saw no way to stop the nomination without a “smoking gun.”

  At the eleventh hour, with the nomination already on the Senate floor, the smoking gun materialized. Bayh’s staff received a 1952 memorandum that Rehnquist had written while clerking as the Supreme Court began to consider the issue of schools that were segregated by race. Rehnquist’s memo urged Justice Jackson to reaffirm the holding of Plessy v. Ferguson that the doctrine of “separate but equal” was Constitutional. To those who believed the Constitution protected individual rights, the memorandum contained frightening reasoning. “In the long run,” Rehnquist had written, “it is the majority who will determine what the constitutional rights of the minority are.”

  Bayh understood what the memo meant, and went immediately to the Senate floor, making an impassioned argument against Rehnquist’s confirmation. This time, he did not prevail. Exhausted and testy, the Senate was ready to adjourn for Christmas, and it was tired of fighting the president over Supreme Court nominees. William Rehnquist was confirmed by a vote of 68–26 on December 10, 1971. Nixon had won a decisive battle over the future of the Supreme Court.

  Even so, Bayh, just forty-three, was now one of the Democrats’ leading stars, with powerful admirers in the labor and civil rights communities. Bayh also became the Senate’s most visible leader on the emerging, powerful issue of equal rights for women. He played an important part in Congress’s approval of the Equal Rights Amendment in 1972. Although the ERA, as it was known, would not win the requisite approval from two-thirds of the state legislatures, Bayh went on to play a central role in the enactment of Title IX to the Civil Rights Act of 1964, establishing the right of women to equal rights in colleges and universities. Title IX changed the rules of intercollegiate sports, and provided powerful impetus for women in sports throughout the nation. He also played a key role in the adoption of the Twenty-Sixth amendment to the Constitution, lowering the voting age to eighteen.

  Bayh considered seeking the Democratic presidential nomination in 1972, but decided against it, in large part because his wife, Marvella, had been diagnosed with breast cancer. In 1974, Bayh won his third term in the Senate, defeating Richard Lugar, the mayor of Indianapolis, an extraordinarily strong candidate who would reach the Senate two years later.

  In 1975, with his wife’s cancer in remission, Bayh sought the Democratic nomination. Bayh’s liberal coalition would be based on the strong support of the labor, civil rights, and women’s groups with whom he had worked closely for the previous seven years. Unfortunately, like Jackson and Church, Bayh underestimated the difficulty of running for president while serving in the Senate and the damaging effect of having several senators, plus Mo Udall, seeking the nomination against one Washington outsider. Bayh fell out of the race quite early and returned to his highly productive Senate career.

  The Chairmanship of the Intelligence Committee enabled Bayh to broaden his responsibilities in the foreign policy and defense areas. He contributed to the Foreign Intelligence Surveillance Act, operating at the intersection of his old interests in civil liberties and his newer expertise in national security. He shaped the Intelligence Committee in a bipartisan way, sharing the most sensitive secrets with a small group of senators including Walter “Dee” Huddleston of Kentucky and his former opponent, Richard Lugar, whom he now trusted completely. He devoted many hours to shaping an agreement on a new charter for the intelligence agencies. He had continued his effort to convince the Congress of the need to amend the Constitution in order to require the direct election of the president.

  Throughout 1979 and 1980, Bayh continued throwing himself into his Senate work, in an effort to overcome grief following his wife’s death. He prepared for a tough reelection campaign, expecting to run against popular Governor Otis Bowen. Surprisingly, however, Bowen decided not to run, leaving the Republican nomination to a young, handsome Indiana Congressman, Dan Quayle, regarded as a far less formidable challenger. Bayh’s race would soon be interrupted by unexpected breaking news about the president’s family.

  ON JULY 15, THE news exploded in front-page headlines across the country that Billy Carter, the president’s brother, had accepted $220,000 from Libyan friends and agreed to register as a foreign agent. This wasn’t the first time Billy Carter’s connection to the Libyan government had come to light. The year before, he had taken a trip to Libya and returned to help set up a Libya-Arab-Georgia Friendship Society. When criticized for his pro-Libyan activities, the president’s brother had responded: “There’s a helluva lot more Arabians than there is Jews,” and referring to his Jewish critics: “They can kiss my ass.”

  On February 27, 1979, the president had publicly disassociated himself from his brother’s remarks: “I don’t have any control over what brother says or what he does, and he has no control over what I say or do.” Saying he loved his brother, he described him as seriously ill, and shortly thereafter, Billy entered an alcoholic rehabilitation center where he stayed for seven weeks. But now, eighteen months later, the American people discovered that the president’s brother had received a large amount of money from the Libyan government, one of the world’s leading state sponsors of terrorism, which presumably had sought his friendship to cultivate a channel to the president.

  Jimmy Carter had come through the Bert Lance debacle and an investigation of his peanut warehouse with his image for rectitude intact. But the prospect of his brother’s Libya connection posed a serious threat. The issue became much more serious for the White House when it came to light that Zbigniew Brzezinski, the president’s national security adviser, had asked Billy to use his friendship with the Libyans to get Muammar al-Gaddafi to lean harder to Ayatollah Khomeini to free the hostages.

  The press coverage turned into a feeding frenzy. A long and detailed cover story in Time began: “Once again, high drama in Washington. Television’s glaring floodlig
hts may switch back on as early as next week in the Senate hearing room. . . . Driven by the pressures of election-year politics, the case of Billy Carter’s Libyan connections ballooned rapidly last week into a full-fledged Senate inquiry and a political cause célèbre.” Seven years after the work of the Senate Watergate Committee, senators were again asking Howard Baker’s famous question: “What did the president know, and when did he know it?”

  Byrd and Baker met frequently over a period of several days, and on July 24, without mentioning Billy’s name, announced the formation of a nine-member panel to look into Billy’s Libya connection. Senate Democrats wanted to reduce the analogy to Watergate and resisted creation of a special committee. But Byrd acknowledged that “this is a matter that will not go away.”

  Under the resulting compromise, a special subcommittee of the Judiciary Committee would conduct the investigation into “activities relating to individuals representing the interests of foreign governments.” Bayh would chair, and Strom Thurmond would be the ranking Republican. The leaders filled out the committee with two members of the Foreign Relations Committee, Claiborne Pell of Rhode Island and Lugar. The new chairman pledged to “pursue the truth wherever it may lead, and let the chips fall where they may.” Both the majority and minority had authority to issue subpoenas at the committee’s direction.

  Halfway through the press conference announcing the formation of the subcommittee, a reporter asked Byrd why Billy’s name had not been mentioned. Byrd responded: “There’s no necessity for it. It might not be confined to Billy Carter.” Asked if there was a chance that the investigation would not focus on Billy, Bayh responded: “Not unless you don’t read the newspaper clippings.”