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Political Drama Over Scalia Successor Echoes 1968 Nomination Fight


When Republicans argue against President Obama making a Supreme Court nomination in the last year of his presidency, there's an episode that's often cited. It was in 1968. On March 31, President Lyndon Johnson, facing strong opposition over the Vietnam War from within his own Democratic Party, made a stunning announcement.


LYNDON B. JOHNSON: I shall not seek, and I will not accept the nomination of my party for another term as your president.

SIEGEL: Then, in June of 1968 came the following bombshell. Chief Justice Earl Warren, a Republican who had become synonymous with liberal activism, announced that he would retire. President Johnson wanted to elevate Associate Justice Abe Fortas, long a close Johnson friend and ally, to be the new chief and for a Texas associate of Johnson's, Homer Thornberry, to replace Fortas. It never happened. Johnson's plan was blocked in the Senate. It was a remarkable political drama that involved all three branches of government. Southerners like Strom Thurmond of South Carolina demanded that Fortas answer for his liberal opinions.


STROM THURMOND: He went out and spoke at law schools and gave his views in other places. He wrote a book and gave his views. I would see no objection why he wouldn't give his views to the Senate Judiciary Committee and to the Senate of the United States.

SIEGEL: Well, joining us to talk more about what happened in 1968 and its relevance to today is law professor Jeffrey Rosen of the George Washington University, who's also president and CEO of the National Constitution Center. Welcome to the program once again.

JEFFREY ROSEN: Great to be back.

SIEGEL: So what derailed LBJ's plan to promote Justice Fortas to chief and to bring in Thornberry?

ROSEN: Politics and Fortas's record. It's a lame-duck nomination. The day the nomination comes down in June, 19 GOP senators issue a statement opposing the nomination, saying the next appointee should be nominated by the new president - sound familiar? Fortas does get a hearing. He's the first nominee for chief justice to testify before the Senate. And it was a remarkable drama.

Strom Thurmond, who you played briefly, attacked Fortas for liberal decisions of the Warren court. He said Mallory, Mallory - I want that name to ring in your ears. And he's referring to a convicted rapist who was freed by the court even before Fortas joined the court. The decision was 1957, but the charge stuck. There's a filibuster. It takes 67 votes in those days to end the filibuster. There's a 45 to 43 vote in favor of ending debate. Some say he would have gotten the majority if it had come to a floor vote, but because the nomination fails, Johnson has to withdraw Fortas's nomination as well as that of Homer Thornberry, who's another crony who he'd nominated to fill Fortas's seat.

SIEGEL: When we speak of liberal opinions from the 1960s in the Supreme Court, I guess there are the criminal justice rulings. There are civil rights rulings, and also, he had issued some rulings about pornography didn't sit well in some parts of the country, I guess.

ROSEN: He did. And it's important that this is a bipartisan opposition. There are Southern conservative Democrats as well as Republicans who oppose him. And really, the entire hearing is a referendum on the liberal Warren court. That combined with questions about his ethics and questions about whether or not both he and Thornberry were cronies of Johnson sunk the nomination.

SIEGEL: Big difference between what happened then and now is that it wasn't that a vacancy occurred because of the unforeseen death of a Supreme Court justice. It was a resignation from the court by Chief Justice Earl Warren that was at least said to be politically motivated.

ROSEN: And it appears to have been politically motivated. Warren told Johnson that he wanted to resign in June 1968. He was sort of outwardly concerned that Republican Richard Nixon might be elected in November, and that helped dictate and influence his timing.

SIEGEL: Did the Fortas nomination actually establish a precedent, as Republicans would say, that lame-duck presidents don't get to put justices on the Supreme Court, or is it just the luck of when vacancies have occurred?

ROSEN: Well, as most things constitutional, you can argue it round or flat. The argument in favor of it being a precedent is that GOP senators, on the day of the nomination, said that it was up to the next president to choose the nominee. The argument on the other side is that Fortas did get a hearing. And what sunk him probably was not the lame-duck status but politics. There was bipartisan opposition from Southern Democrats and Republicans to his civil liberties opinions, and really that more than the timing dictated the defeat.

SIEGEL: That's Jeffrey Rosen, head of the National Constitution Center, speaking to us from Philadelphia. Thanks.

ROSEN: Wonderful to be here. Transcript provided by NPR, Copyright NPR.