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FRIDAY, NOVEMBER 21, 1969
NIGHT EDITOR: ALEXA CANADY
Beyond Haynsworth?
By WALTER SHAPIRO
Daily Washington Correspondent
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That's the outlook for today as the Senate
is scheduled to decide the fate of the most
controversial Supreme Court nominee since
Abe Fortas.
Conflicting vote counts, a steadily dwin-
dling list of uncommitted Senators, complaints
of excessive White House pressure, and in-
ordinate attention to the views of otherwise
obscure Senators-all are reminiscent of the
summer's ABM balloting.
There'is a difference, though. Unlike the
ABM decision where both sides had been polar-
ized many months before, this time the con-
tradictory vote tallies reflect uncertainty rather
than bravado.
No Senator had done more to illustrate this
confusion than Ralph Smith (R-fll), the in-
terim replacement for Everett Drksen. In the
space of several weeks Smith has gone from
"uncommitted" to "against confirmation" to
"for Clement Haynsworth."
IN THE LAST few days, freshmen Repub-
lican Senators like William Saxbe (R-Ohio)
and Robert Packwood (R-Ore) have moved
from an "anti-Haynsworth" to an "uncom-
mitted" position.
So all predictions have gone awry. The
votes of several uncommitted GOP Senators
were supposed to hinge on the decision of John
Williams (R-Del) the most influential Repub-
lican crusader for ethics in government.
Instead, as soon as Williams announced his
opposition to Haynsworth on Wednesday, two
men--generally expected to follow his lead,
Caleb Boggs (R-Del) and George Aiken (R-
Vt)--promptly came out for confirmation.
REGARDLESS OF THE outcome, the sus-
pense that hangs over the vote on Haynsworth
accentuates an unfortunate tendency to confuse
the dramatic with the significant.
The tenuous quality of a liberal victory
today should not be forgotten. After all, last
week it was rumored that President Nixon
would nominate Sen. John Stennis (D-Miss)
to the Supreme Court if the Senate rejected
Haynsworth.
With Hugh Scott urging Nixon to appoint
another Southern "strict constructionist" if
Haynsworth is defeated, with Nixon owing
much of his fragile ABM victory to Stennis
and with the confirmation of Stennis all but
assured due to Senatorial courtesy, the report
gained a certain plausibility.
Whatever its accuracy, the rumor should be
a reminder that the defeat of Haynsworth will
not guarantee the liberal sanctity of the Su-
preme Court.
ANY NAIVE FEELINGS that the Hayns-
worth vote will be predicated on a dispassionate
appraisal of the propriety of his financial activ-
ities while on the federal bench, is promptly dis-
sipated by any of the lists floating around
Washington handicapping today's legislative
battle.
A quick glance reveals a striking similarity
to the ABM vote. Of the 44 Senators definitely
favoring Haynsworth as of last night, only 5
differed with the Nixon administration on the
ABM.
Except for Mike Gravel (D-Alaska), no
Northern Democrat has endorsed Haynsworth.
Except for John Sherman Cooper (R-Ky) and
perhaps Gore and William Fulbright no South-
ern Senator is planning to vote against the
South Carolina jurist.
Admittedly some votes have been swayed
by Haynsworth's ethical transgressions. But
for the most part, opposition to Haynsworth
has ben spurred on by labor and civil rights
groups and predicated on repugnance for his
judicial philosophy,
Despite our more recent memories of the
Parvin Foundation and Life magazine exposes,
last year's fight against Abe Fortas was on
similar grounds.
Senatorial showings of Flaming Creatures
allegedly to demonstrate the Court's lax stand-
ard on pornography; Strom Thurmond scream-
ing at Fortas, "Mallory! Mallory! I want that
word to ring in your ears"; and Robert Grif-
fin's inanities about "lame duck" presidents not
having the power of appointments-all made
clear that the opposition to Fortas was largely
political.
THEREFORE, IT IS understandable that
some liberals, upset by the unceremonious
treatment of Fortas, are getting an unexpected
thrill out of pinning one on Haynsworth.
Unfortunately too little attention has been
paid to the effects of such revenge on the
President's traditionally broad discretiori in
choosing members of the Supreme Court. This
tradition won senatorial approval for such
controversial nominees as Louis Brandeis, Felix
Frankfurther, William 0. Douglas and Hugo
Black.
If the rejection of Fortas were followed by
the defeat of Haynsworth, it would be easy
for future Senates to deny confirmation to any
nominee who is not the bland judicial equivalent
of Warren Burger or Byron "Whizzer" White.
Despite the momentary anguish that the
rejection of Haynsworth would cause Nixon
and his fellow "strict constructionists," it is to
the long-run detriment of the advocates of an
activist Court to encourage the Senate to judge
Court nominees on the basis of their judicial
philosophies.
Admittedly a Court of nine Clement Hayns-
worths would not be a promising place to look
for redress of grievances. But their innate con-
servatism would prevent them from charting
many new and reactionary legal precedents.
Instead, they would be at worst merely an
obstacle to be bypassed. The Warren Court is
evidence enough that an activist majority on
the bench can achieve reforms, such as re-ap-
portionment and school integration, which
would have been virtually unattainable by legis-
lative means.
PARADOXICALLY, ALTHOUGH emotion-
ally satisfying, a defeat today for Haynsworth
would reduce the chances of assembling an-
other activist Court. An amorphous content,
perhaps, but it lies at the heart of today's vote.
All this is not an apologia for the South
Carolina jurist, a man of all-too-obvious limit-
ations. Rather, it is sad reminder that which-
ever way today's vote goes, the Supreme
Court loses.
i
ceter
is paribus
Reflections
on a de cade o protest
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IN THE FALL and in the spring, t h e r e are protest
marches against the war in Vietnam. Not always, of
course; some falls there are elections and some springs
there are assassinations, but in t h e normal order of
things the fall and the spring are for trekking to Wash-
ington to confront the war-makers.
We went to Washington last week because it was fall.
The birds fly south and the leaves turn brown and the
peace freaks head for the nation's capital. For so it was
ordained by Something higher than ourselves.
IT WASN'T ALWAYS that way.
Once Eisenhower was President and nobody did any-
thing, except for maybe going to the polls on election
day, if it didn't rain. No sane person would dream of
spending hours shivering at the base of the Washington
Monument to try to change government military policy,
and if the Supreme Court did go so far as to make a
couple of drastic decisions, everyone knew better than
to act on them.
It seemed like another country, back in the fifties
(but maybe that was just because things look different
when you are a child).
THEN ONE DAY, around the turn of the decade,
Rosa Parks refused to sit at the back of the bus, and all
hell broke loose.
A bunch of smart-aleck Northern college kids dis-
covered the Southern Negro, and began coming down
for freedom rides and lunch counter sit-ins. They also
discovered the Southern cop, and their liberal elders back
North were shocked into agitating for major civil rights
legislation.
Of course, it took a presidential assassination to get
anything through Congress, but in the interim all the
smart-aleck kids learned a few things.
THEY LEARNED that the North was as oppressive
to blacks as the South, except that the techniques used
were more subtle.
They learned that freedom of speech and assembly
don't mean a whole lot if the local authorities think your
cause isn't worthy of a parade permit, or if the local po-
lice chief believes in homicide as a legitimate form of
political expression.
They learned that it was all very well for "youth" to
be "idealistic" when it chose to sit in down South or join
the Peace Corps, but that when you got back from being
idealistic, you wer'e expected to settle down in a nice
corporate job and a home in suburbia.
And somewhere along the line they learned t h a t
"Adt the Monument Saturday, the
song of the decade seemed to be The
Times They Are A-Changing' - but
w-hat was once a (lecla ration of d efi-
ance had become only a feeble hope
that ie change was indeed to be for
the better."
Americans had b e e n fighting an undeclared war in
Southeast Asia since 1962.
SO THEY TOOK the lessons they had learned in the
civil rights protests, and they tried to apply them to
this new problem.
The first anti-Vietnam march on Washington, in Ap-
ril, 1965, was patterned after the successful march Martin
Luther King had arranged in 1963. It was sort of a rad-
ical affair - the war was, after all, only three years old
-~ attended by and large by the same sort of people who
had been active in the sit-ins and the freedom rides -
the old hard core.
IT SEEMED like a good, nonviolent way to protest,
so there were more marches . . . in the fall, and in the
spring, and in the fall again.
By 1967, the old hard core had metamorphosed into
the Mobilization to End the War in Vietnam, and you
didn't have to be a radical or a civil rights veteran to
storm the Pentagon.
Things continued to get pretty desperate as the 1968
election approached, but then McCarthy and Kennedy
emerged to give those who liked "legitimate" forms of
protest a new life for a few months.
BUT ONLY for a few months.
By the time the nation finally limped to the polls on
election day, Chicago had become a byword for the new
police state, and electoral politics were a bitter joke to
thousands barely old enough to vote.
Then there was an inexplicable silence for awhile,
but now things are back to normal.
Because they were. and because it. was fall, we march-
ed on Washington.
WE MARCHED hardly expecting to be heard, and
certainly not expecting to accomplish anything tangible.
Nearly a decade had elapsed since we first sang "We
Shall Overcome" and were able to believe it. We didn't
seemed to be "The Times They Are A-Changing" - but
what was once a declaration of defiance had become only
a feeble hope that the change was indeed to be for the
better.
And now that the march is over, we can ask ourselves
whether it will be worth the effort to march again next
time.
BACK IN 1964 or so, in California, a number of peo-
ple decided it wasn't and started living differently -
and apolitioally. By 1967, the media caught on and ex-
posed the hippie scene to the world, killing it in the
process.
But some of their ideas are not yet dead, and the
hippie-freak-dropout thing may yet provide some of us
withan alternative of sorts.
Because on the political front there seems to be very
little we can do, in light of where a decade of protest has
brought us.
FOUR YEARS of Washington marches, an election,
an assassination and a police riot have gained us Nixon
and a round bargaining table in Paris. There is no reason
to think that four more years of protest will accomplish
any more.
History as far back as the French Revolution shows
us that the increment of change brought about by even
relatively successful mass movements is just not that
great when compared to the "normal" rate of social
change as explained by Establishment politics, technical
advancement, religious movements and Acts of God.
THE CHOICE of a political future must ultimately
rest on each individual, with the knowledge that noth-
ing one man can do -- in a purely political framework -
will accomplish much of anything.
Rather than concentrate on organizing new protests,
the concerned person might do better to try to insinuate
himself into a position where he is relatively capable of
influencing events on a personal level.
This is not a plea for entering conventional politics.
Nothing will be gained if we turn into our generation's
equivalent of Richard Nixon; there are enough such al-
ready, and the foremost among them is Sam Brown, of
Moratorium arid NSA'fame.
IT MAY BE an answer for those who are concerned
to try - through community organizing, teaching, clin-
ical medicine or radical law - to help people protect
themselves from the more repressive elements of Ameri-
can society. Or it may not, and dropping out may prove
the only real solution.
even try to sing it in Washington.
At the Monument Saturday, the
song of the decade
Managing the news: It's just a gentlemanly, bipartisan a
ffair
By BRUCE LEVINE
One of the greatest tragedies of the
Nixon presidency is our willingness to
blame all on Tricky Dick, forgetting
that the roots of our present crises
stretch way back into liberal Democratic
soil.
On the grand scale, it is manifested
in references to "Nixon's war," and
the determination by the Moratorium
Committees to turn their new movement
into campaign committees for liberal
Democratic politicians - to return to
the good old Kennedy days. But there
are other, somewhat more subtle exam-
ples as well.
The most current is the reaction to
Agnew's "TV, shut up!" speech.
THIS WEDNESDAY, for instance, Mr.
Norman Isaacs, president, American So-
ciety of Newspaper Editors, spoke on
the Agnew attack. Damning Agnew's
speech as "an open campaign to shut
up voices of dissent," Isaacs went out
of his way to emphasize the unprece-
dented nature of this "drive" by the
Nixon Administration.
Nixon's attitude, Isaacs insisted. is
completely different in nature from the
record of the Johnson and Kennedy
regimes. These last, he continued, en-
gaged only in "legitimate government
Sylvester got right to the point. "I
can't understand how you fellows can
write what you do while American boys
are dying out there," he began. The
assistant secretary told the reporters
they had a patriotic duty to report only
those facts which flattered the Amer-
ican image.
W HEN A television correspondent in-
quired, "Surely, Arthur, you don't ex-
pect the American press to be the hand-
maiden of the government," Sylvester
replied quickly. "That's exactly what I
expect."
When another reporter raised t h e
problem of official American "credibil-
ity," Sylvester had another ready re-
ply: "Look, if you think any American
official is going to tell you the truth,
then you're stupid. Did you hear that?
-stupid."
And when the room finally broke into
pandemonium, Sylvester delivered the
coup de grace:
"Look, I don't even have to talk to you
people. I know how to deal with you
through your editors and publishers
back in the States."
Recalling the meeting, CBS corres-
pondent Morley Safer observes t h a t
Sylvester's last statement quoted above
"gives some indication of the way the
sued a "White Paper" charging the US
correspondents, in effect, with selling
out the war effort with the critical stor-
ies they were filing with their papers in
the States.
For the series of perceptive reports
which would later win him the Pulitzer
Prize, New York Times reporter David
Halberstam came under particularly
heavy fire from the White House.
Exactly one month before his death,
John Kennedy personally tried to talk
the Times' publisher, Arthur Ochs Sulz-
berger, into transferring Halberstam to
another part of the world. And this
personal touch only capped a 1 o n g,
systematic campaign waged by the Ken-
nedy Administration to discredit Hal-
berstam - a campaign Kennedy wag-
ed both above and below the table.
Some years later, Halberstam was told
point-blank by a friend in the S t a t e
Department:
"It was a damn good thing you never
belonged to any left-wing groups or
anything like that, because they were
really looking for stuff like that."
But none of this should be surpris-
ing. For much earlier in the Admin-
istration the attitude of the government
was made crystal clear.
And in a finale much more frank than
Agnew's, Sylvester called on the press
to join the government in speaking in
"one voice to the adversary."
Now all this is on the public re-
cord. The remarks Sylvester made in
defense of official lying were splashed
in every newspaper in the country. And
the text of his Saigon tete-a-tete was
published just three years ago in the
Bulletin of the Overseas Press Club
and reprinted by the Senate Foreign
Relations Committee. If this was not
common fare, it was certainly well-
publicized among newspapermen. And
it seems fair to include the President of
the American Society of Newspaper
Editors in this category.
IT IS ESPECIALLY interesting,
therefore, when Mr. Isaacs dismisses
the Kennedy and Johnson maneuvers
as "legitimate government attempts to
influence publishers and editors." It
says something about just how vigilant
he is in defense of the public's right to
the news.
Even more enlightening, perhaps, is
the extent to which a recapitulation of
these events lays bare the real lack of
concern which even the liberal poli-
tician displays when his own political