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Friday, January 30, 2015

LBJ and the Supreme Court

This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).

Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.

First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).

Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.

Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true. 

So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:

1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?

* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.

2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?

Posted by Howard Wasserman on January 30, 2015 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

Nancy Leong has a new podcast series.

http://www.nancyleong.com/media-2/new-video-podcast-the-rightscast/

Replacing Warren might have been a lost cause anyway, but Fortas was a pretty horrible choice to me & should have been seen as so at the time. He was a crony, had no real legal cred that could be sold to non-believers (someone like a long term appellate judge or leading legal voice) and had Warren Court baggage for opponents to use.

Fortas would have been a poor choice as Chief Justice even w/o the last thing but it just made it worse. Since LBJ knew several justices were on their way out, he should have used his appointment here more wisely. A safer choice should have been available that might not be as good as Warren but much better than Burger.

Posted by: Joe | Jan 30, 2015 5:19:50 PM

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