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Filibuster Derails Supreme Court Appointment (1968)

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  • Ram Lau
    http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm In June 1968, Chief Justice Earl Warren informed President
    Message 1 of 1 , May 17, 2005
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      http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm

      In June 1968, Chief Justice Earl Warren informed President Lyndon
      Johnson that he planned to retire from the Supreme Court. Concern that
      Richard Nixon might win the presidency later that year and get to
      choose his successor dictated Warren's timing.

      In the final months of his presidency, Johnson shared Warren's
      concerns about Nixon and welcomed the opportunity to add his third
      appointee to the Court. To replace Warren, he nominated Associate
      Justice Abe Fortas, his longtime confidant. Anticipating Senate
      concerns about the prospective chief justice's liberal opinions,
      Johnson simultaneously declared his intention to fill the vacancy
      created by Fortas' elevation with Appeals Court Judge Homer
      Thornberry. The president believed that Thornberry, a Texan, would
      mollify skeptical southern senators.

      A seasoned Senate vote-counter, Johnson concluded that despite
      filibuster warnings he just barely had the support to confirm Fortas.
      The president took encouragement from indications that his former
      Senate mentor, Richard Russell, and Republican Minority Leader Everett
      Dirksen would support Fortas, whose legal brilliance both men respected.

      The president soon lost Russell's support, however, because of
      administration delays in nominating the senator's candidate to a
      Georgia federal judgeship. Johnson urged Senate leaders to waste no
      time in convening Fortas' confirmation hearings. Responding to staff
      assurances of Dirksen's continued support, Johnson told an aide, "Just
      take my word for it. I know [Dirksen]. I know the Senate. If they get
      this thing drug out very long, we're going to get beat. Dirksen will
      leave us."

      Fortas became the first sitting associate justice, nominated for chief
      justice, to testify at his own confirmation hearing. Those hearings
      reinforced what some senators already knew about the nominee. As a
      sitting justice, he regularly attended White House staff meetings; he
      briefed the president on secret Court deliberations; and, on behalf of
      the president, he pressured senators who opposed the war in Vietnam.
      When the Judiciary Committee revealed that Fortas received a privately
      funded stipend, equivalent to 40 percent of his Court salary, to teach
      an American University summer course, Dirksen and others withdrew
      their support. Although the committee recommended confirmation, floor
      consideration sparked the first filibuster in Senate history on a
      Supreme Court nomination.

      On October 1, 1968, the Senate failed to invoke cloture. Johnson then
      withdrew the nomination, privately observing that if he had another
      term, "the Fortas appointment would have been different."

      Reference Items:

      Henry J. Abraham. Justices and Presidents: A Political History of
      Appointments to the Supreme Court. New York: Oxford University Press,
      1992.

      Kalman, Laura. Abe Fortas: A Biography. New Haven: Yale University
      Press, 1990.

      Urofsky, Melvin I., ed., The Supreme Court Justices: A Biographical
      Dictionary. New York: Garland, 1994.
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