In my new Confirmation Tales post, I recount the previously untold story of how Stephen Breyer got on the First Circuit in 1980 only because Senator Ted Kennedy blocked Jimmy Carter from nominating a Puerto Rican woman (or any Puerto Rican, for that matter) to the new seat created in 1978. An excerpt:
[T]he First Circuit had never had a judge from Puerto Rico, nor had it ever had any female or minority judge. So the White House had special interest in the candidacy of Puerto Rican law professor Miriam Naveira.
But Kennedy had already firmly settled on his own candidate, the distinguished Harvard law school professor Archibald Cox. Cox had decades-long ties to the Kennedy family. Then-Senator John F. Kennedy had consulted him on labor relations as early as 1953, and Ted Kennedy had shrewdly engineered Cox’s selection as Watergate special prosecutor in 1973.
The nominations panel that Carter had set up to advise him on candidates for First Circuit vacancies was dominated by Kennedy loyalists. Under Carter’s executive order that established these nominations panels, a panel was to recommend the five persons best qualified for a vacancy. But instead of just providing Carter a list of five candidates, the panel, in what the Washington Post called a “depart[ure] from standard practice,” ranked the candidates. It recommended Cox as the best choice, and it relegated Naveira, his leading competitor, to the fifth and last place on its list.
In addition to being a patrician white male, Cox turned 67 in the spring of 1979. Naveira was 44.
In the summer of 1979, the White House informed Kennedy that Carter would not nominate Cox. According to the Washington Post, the White House’s stated reason was that the American Bar Association’s guidelines recommended against nominees older than 65. But Carter also knew that Kennedy was exploring running against him for the Democratic nomination for president in 1980. “Kennedy allies construed the rejection of Cox … as a political slap at Carter’s potential presidential opponent.” Kennedy was livid.
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