Mediocrity was an entirely useful word that had enjoyed a long and happy life until everything changed in April 1970.
President Richard M. Nixon had nominated Judge G. Harrold Carswell to the Supreme Court to fill the seat vacated by Justice Abe Fortas. Replacing Fortas had been a stormy process with the first nominee, Clement Haynsworth, going down to confirmation defeat.
At the time, the Senate was under the control of the Democrats so the responsibility for presenting the case for the Republican nominee fell to the Ranking Minority Member of the Senate Judiciary Committee, Roman L. Hruska of Nebraska.
Hruska was, by then, and older jowly fellow of Czech origin who was often given to speaking slowly and wagging his finger, as if to a small child. Somehow, this did not come off as patronizing, but it did qualify as memorable.
The Department of Justice prepared and sent over to Hruska’s office a giant briefing file – they were on paper then – and, for some weeks, it languished unread.
I find this quite understandable because I have an excellent record of procrastination about projects that can’t be finished at one go.
The calendar cares nothing for procrastination but it does ramp up the anxiety as the due date arrives. This phenomenon is well known to writers of term papers.
The Senator had a wonderful relationship with his recently departed Administrative Assistant, Robert J. Kutak, the son of a childhood friend in Omaha, Nebraska and, later, the founder of one of the first national law firms in the United States. Kutak would go on to lead the American Bar Association effort to revamp the Model Rules of Professional Conduct, the lawyers’ code of ethics.
I had met Kutak several years earlier, and he became both my mentor and the person who guided me to law school, thence to a job at his firm. That’s Bob in the picture.
But back to the confirmation story.
As the pages of the calendar flew off and blew away (I love that image in old movies), the Senator called Kutak and asked if he could spend a weekend reading the file and then provide a briefing on the relevant issues.
Of course, Kutak said yes, as might be expected of the founder of a start-up three-person law firm to a request from a senior United States Senator.
Kutak holed up in a hideaway office in the Capitol, no doubt with his ever-present pipe and a considerable bag of tobacco.
“Read, read, read,” (as my granddaughter tells me) is what he did throughout the weekend in anticipation of a briefing well in advance of the Senator’s speech. All went according to plan except for the briefing, which kept getting postponed and postponed. It finally happened in the three-minute subway ride from the Senator’s office to the Senate floor.
Carswell had, at best, an imperfect history at least from an image perspective, and the Democrats were tugging at their leashes to take down a second nominee.
The planned briefing became shorter and shorter as the subway hummed its way across Capitol Hill. As Bob told the story, the briefing came down to one sentence: “it is not the issues in the newspaper, Senator, it is the incredible mediocrity of the man.”
The Senator delivered the speech placing Carswell in nomination that had been provided by the Department of Justice then he went to the Press Gallery to take questions.
A reporter asked what the Senator thought the controversy surrounding the nomination was all about, and a synapse in his brain flipped back to the subway conversation with Kutak.
Now remember Hruska’s tendency toward slow speech and finger wagging.
“Even if he were mediocre, 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? Doesn’t mediocrity deserve representation on the Supreme Court?”
The word “mediocrity” ended the nomination and changed the fate of the word itself forever.
Kutak felt badly about his inadvertent contribution to torpedoing the Supreme Court nomination. Carswell resigned from the bench a few weeks later.
A week after the gaffe, Nixon nominated Harry Blackmun, who was unanimously confirmed. Blackmun would go on to write the decision in Roe v. Wade.