The current vacancy on the Supreme Court has generated considerable discussion about the history of Supreme Court nominations – including from Michael Gerhardt for this blog. One oft-cited chapter in this history is President Lyndon Johnson’s unsuccessful 1968 nomination of Justice Abe Fortas to replace Earl Warren, who had announced his intent to retire from his position as the Chief Justice. Today’s political and judicial situation makes for perfect timing for a recent article by Robert David Johnson in the Journal of Supreme Court History: “Lyndon B. Johnson and the Fortas Nomination.” Johnson’s article is one of the first to use the tapes of Lyndon Johnson’s 1968 conversations and telephone calls. Johnson also is the first scholar studying the Fortas confirmation to use the papers of some of the senators who played key roles in the battle, including Fortas’s “most prominent opponents,” Senator Robert Griffin (R-Michigan) and Senator Strom Thurmond (R-South Carolina).

On June 13, 1968, Warren tendered a conditional resignation that would become effective upon his successor’s confirmation. For Lyndon Johnson, the “obvious selection” as a replacement was former Justice Arthur Goldberg, who left the Court in 1965 to serve as U.S. Ambassador to the United Nations. However, Lyndon Johnson demurred on the ground that, in his words, one “oughtn’t to be leaving the Court and going back on the Court.” More bluntly, he put it, “I oughtn’t to have two Jews” as Justices. Secretary of Defense Clark Clifford was “too old,” Secretary of the Army Cyrus Vance “too prone to ill health,” and Secretary of the Treasury Henry Fowler “too vital in his current post.”

Lyndon Johnson ultimately selected Fortas, “the best lawyer on the Court,” but immediately it smelled of cronyism – only the first of the problems to come. Fortas had been a longtime ally of Johnson’s, and even as Associate Justice he continued to advise the president on matters ranging from Vietnam to the relationship between Johnson’s daughter and the actor George Hamilton.

Elevating Fortas also meant that Johnson needed to nominate a new Associate Justice. He wanted someone whose vote he could “always be proud of.” He chose Homer Thornberry, a fellow Texan who had succeeded him in the House of Representatives, and whom he had already elevated from a federal district court to the Fifth Circuit in 1965. Although President Johnson candidly admitted that Thornberry wouldn’t be as eloquent as Justice Hugo Black, to opponents Thornberry seemed like the same cronyism all over again as the choice of Fortas.

The Senate had never attempted to filibuster a Supreme Court nominee since the 1917 establishment of the cloture rule, and after the “Court-packing fight” of 1937, the Senate had confirmed twenty-two consecutive nominees – fifteen by voice vote. As Robert David Johnson notes in the article, the filibuster also carried with it significant political and public association with efforts by southern lawmakers to block civil rights legislation. (That summer, Republicans avoided the term “filibuster,” instead labeling their efforts a “full debate” or an “educational campaign.”) Given this situation, Johnson contends in the article, it “thus was not unreasonable, as most Washington observers thought, to expect little resistance for Warren’s replacement.”

However, Johnson’s research uncovers hints that, even at the time, that expectation may have been misguided. The Senate had added a number of new members from recent elections “who – for reasons of ideology, partisanship, or both – challenged the Senate’s traditional mores.” Indeed, the previous year’s confirmation of Justice Thurgood Marshall, by a vote of sixty-nine to eleven (with twenty senators not voting) “revealed signs of a different approach by some Senators to Supreme Court selections.” This new approach stemmed in part from significant public backlash against the Warren Court for its “highly unpopular crime-related decisions, notably Miranda v. Arizona.” Partly as a result of the negative perception of these cases, senators were considering crime-control bills, and Richard Nixon – the leading Republican presidential candidate – was running largely on a law-and-order platform.

A former Senate majority leader, Lyndon Johnson was himself a master procedural tactician, yet opposition Republicans in the Senate Judiciary Committee would outmaneuver him and his allies – a “bunch of dupes” was the president’s self-deprecating phrase in hindsight. Thurmond refused to waive – as was typically done – a rule prohibiting committee meetings while the Senate was in session on the floor. A forgotten rule that Republicans resurrected allowed for a week’s delay. Other strategic absences denied the committee the quorums necessary to meet.

Another stalling tactic involved Fortas’s alleged complicity in the spread of pornography due to his participation in the Court’s unsigned decision in Schackman v. California; thirty senators found the matter pressing enough to warrant watching the questionable films to make their own judgments. Senator Philip Hart (D-Michigan) remarked that people might have the “accurate impression that U.S. Senators, however righteously disapproving, have been slipping into innumerable private showings of ‘dirty’ films.”

However amusing that element of the episode may seem today, it points to a crucial aspect of the nomination battle – backlash against the Warren Court. Lyndon Johnson’s “talking points” for Fortas and Thornberry – “that since the only ‘question is whether Warren goes and Thornberry comes on, … you can’t tell me that Thornberry ain’t a hell of a lot better for [some southern senators] than Warren is’’ – missed the crucial point. It wasn’t about Thornberry, but Fortas, and elevating him carried the optics of enshrining the Warren Court.

Fortas’s appearance for testimony before the Senate Judiciary Committee represented the first time, except for a recess appointee, that a sitting Justice had ever testified about his views. This effectively put the Warren Court on trial. Quickly it became evident that nominating Fortas constituted a “case of gross political malpractice,” in the words of political scientist Kevin McMahon. Democrats were largely unmoved by the selections, but they significantly alienated moderate and liberal Republicans, some of whom the president would need to sway to his side.

Johnson reports that on July 19, an “anonymous caller” informed a Senate aide that Fortas had received $15,000 from private donors for a seminar at American University. Also troubling was Fortas’s continued close relationship with Lyndon Johnson. (Fortas defended himself in committee from this charge with the somewhat unconvincing claim that the president only consulted him on matters for which Fortas lacked “any expertise.”) These ethical questions added to Fortas’s problems, but in a way that, Johnson suggests in his article, only increased already-present opposition arising primarily from Fortas’s association with the Warren Court.

On the campaign trail, Nixon promised to appoint “strict constitutionalists” to the Court, and he stressed in a campaign letter the “need for future Presidents to include in their appointments to the Supreme Court men who are thoroughly experienced and versed in the criminal laws of the land.” In the summer and early fall of that year, the Senate received 50,000 letters or telegrams about the Fortas nomination; they “overwhelmingly tilted against” it. One Senator’s situation is indicative. Senator Wallace Bennett (R-Utah) had originally said he would “definitely not join a filibuster” against Fortas. That was before he barely survived his September primary challenge from Mark Anderson, a John Birch Society member who had strongly rallied the far right. Returning to Washington, D.C., Bennett changed his mind about Fortas. His Democratic colleague, Senator Frank Moss, faced a similar struggle; he backed Fortas, but not openly.

By the time the nomination passed out of committee, editors of The New York Times remarked, “the only way the Senate can go is up.” It didn’t. Fortas received, as Johnson puts it, “a final indignity” in not even reaching fifty votes. Forty-five Senators voted yes, and forty-three “wanted the debate to continue,” but Lyndon Johnson withdrew the nomination – the first time since 1930 that the president’s choice had not prevailed.

Fortas himself would not remain much longer on the Court. The following year another ethical violation surfaced – a $20,000 annual retainer Fortas accepted from Wall Street financier Louis Wolfson, who was himself being investigated for fraud and hoping for a pardon from Lyndon Johnson. Fortas resigned amid calls for his impeachment, but Johnson posits that it is “at least plausible that a less politically exposed Fortas could have rebuffed calls for his resignation.”

With this claim that “absent the bruising confirmation fight” Fortas might not otherwise have had to resign, Johnson argues that Lyndon Johnson’s political miscalculations “allowed Nixon to make two nominations that otherwise would have gone to appointees of a Democratic President.” This in turn “set into motion the pattern” of a Supreme Court whose majority was appointed by Republican presidents – a pattern that continued until Antonin Scalia’s death earlier this year.

Posted in Supreme Court history

Recommended Citation: Andrew Hamm, Legal history highlight: The failed election-year nomination of Abe Fortas, SCOTUSblog (Mar. 10, 2016, 4:03 PM), http://www.scotusblog.com/2016/03/legal-history-highlight-the-failed-election-year-nomination-of-abe-fortas/