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.


15 Responses to “Mediocrity”

Peter W Bragdon, December 17, 2019 at 7:41 am said:

A useful word — makes me think of Harding’s creation of the word “normalcy.”


Haven Pell, December 17, 2019 at 8:38 am said:

Maybe another useful word for the outcome of this story would be “inadvertency?”

Trading Carswell for Blackmun.


Russell, December 17, 2019 at 10:34 pm said:

Postmodern protocol needs changes in forms of address that embrace the rise of intersectionality. After three years, the Secretary of State and the rest of the Cabinett should abandon the sexist and eltist usage ” His Excellency ” and bow to political reality by hailing our latest Chief Executive as : “Your Inadverancy”


Haven Pell, December 18, 2019 at 10:44 am said:

Love it. Your Inadvertency. Other titles might include “Your Uselessness” or “Lord High Soporific.”


Russell, December 18, 2019 at 2:47 pm said:

The downside of normalcy, electoral outcomes often remind us, is that in a democracy of normal intelligence, campaign strategies may reflect the statistically sound realization that half the electorate have two digit IQ’s.

Richard Meyer, December 17, 2019 at 8:50 am said:

I remember it very well. Perhaps we now have a mediocrity majority on the SCOTUS?


Haven Pell, December 17, 2019 at 10:10 am said:

I can certainly understand opposing one philosophy or the other on the current Supreme Court, but I would not consider any of them mediocre, let alone a majority.


Haven Pell, December 17, 2019 at 10:08 am said:

Thanks Chuck. I have known the story forever but learned some knew things while getting the details straight.


Terry Vogt, December 17, 2019 at 3:20 pm said:

I dislike, hate, abhor mediocrity. And the worst is that by definition mediocrity means average, so I probably need to get beyond my dislike of things mediocre, as that’s what surrounds us.

What are our options? I learned a lot studying statistics in graduate school — yes, I was in the distinct minority among my peers as I absolutely adored statistics. You can’t really “combat” mediocrity, but what you can do is try at all times to engage in critical thinking, and you can use mindfulness techniques to help sort out your own feelings and reactions to mediocre responses from others.

I have been known to revel in being two standard deviations away from many norms. That’s probably just advanced hubris, however, and I now try to be mindful of my thoughts and reactions on the one hand, and to also listen carefully to my inner son of a bitch knee jerk reactions. I find they’re often right.

Thus endeth an unsolicited Epistle…


Haven Pell, December 17, 2019 at 4:10 pm said:

Lots to think about there. Not least the inner son of a bitch and the two standard deviations off most norms.

Seems to me those “ailments” are “going around,” as I feel the same way.

The public’s response to Carswell’s “mediocrity” was about as strong as yours to mediocrity in general.


Terry Vogt, December 17, 2019 at 6:04 pm said:

It is revealing to truly take in that average = mediocrity in many situations. I guess it comes down to understanding when one shouldn’t put up with average and should expect and require excellence. Eh?


Haven Pell, December 17, 2019 at 6:29 pm said:

Well, the Supreme Court is definitely one of the places to be demanding on that score. Demanding in terms of legal acumen, rather than political Litmus tests.


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