Once upon a time when Senator Byrd was considered for the Supreme Court

The biggest story nationally now is President Trump’s nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme Court. The Senate is divided along ideological and political lines and a rough-and-tumble approval process is ahead.

The story caused me to look back to a time when Robert C. Byrd was once under serious consideration for the high court.  Byrd tells the story (in a remarkably objective manner) in his autobiography Robert C. Byrd, Child of the Appalachian Coalfields.

Byrd said the subject first arose during an airplane trip he took with President Richard Nixon to Elkins, West Virginia in the fall of 1971.  Nixon wanted to gauge Byrd’s interest in the vacancy created by the retirement of Justice Hugo Black.

A subsequent story in the New York Times said Byrd was Nixon’s first choice, and the paper predicted “easy confirmation.” That could have been a trial balloon or perhaps wishful thinking on the part of Byrd supporters because picking the 53-year-old Democratic Senator from West Virginia would have been controversial.

Photo courtesy of the Robert C. Byrd Center

First, Byrd had the heavy baggage of once briefly belonging to the Ku Klux Klan and that was followed by his opposition to landmark Civil Rights legislation. The Senator had apologized for the Klan affiliation and changed his position on civil rights, but as the Pittsburgh Post-Gazette opined, “His nomination to the court would be an affront to the black minority.”

Second, Byrd earned his law degree by attending classes while in Congress, however, he had not been admitted to the bar and had never tried a case.  As Byrd admitted in his memoirs, “The furor raged nationally. In West Virginia, press comment was also divided generally along liberal and conservative lines.”

Massachusetts Senator Ted Kennedy, who Byrd had defeated by seven votes for the position of Majority Whip earlier in the year, was particularly critical of Byrd and the five other names that had been submitted by Nixon to the Bar Association’s Judicial Fitness Committee.

The possible nominees, “will rank as one of the great insults to the Supreme Court in its history,” railed Kennedy.

Ultimately Byrd withdrew his name from consideration, despite what the Senator said were efforts by four of his colleagues to convince him to stay in the race. A UPI story said, “The four had plans for fifty-one senators to sign a petition favoring Byrd to be presented to Nixon to convince him that Byrd could be confirmed despite criticism of his past association with the Ku Klux Klan and his lack of experience in law practice.”

Byrd writes that he was tempted by the opportunity because of the influence one person could have on the nation as a member of the court, but that his heart belonged to the Senate.  “My whole political career, however, had been spent in legislative bodies; I enjoyed the give-and-take of debating in the legislative forum.”

Notably, Byrd adds that he had no reason to believe that he wouldn’t have been confirmed and, despite his inexperience, would have been a qualified Justice. “Just as I had always done, I would have thrown myself wholeheartedly into the task, and I would have overcome the disadvantages that would beset me at the beginning of my tenure on the Court.”

Byrd would go on to become Senate Majority Leader and the longest serving Senator in the country’s history.  Did he ever lament the missed opportunity?  “I have never regretted my choice,” Byrd wrote.



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