Filibuster Derails Supreme Court Appointment (1968)
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
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."
Henry J. Abraham. Justices and Presidents: A Political History of
Appointments to the Supreme Court. New York: Oxford University Press,
Kalman, Laura. Abe Fortas: A Biography. New Haven: Yale University
Urofsky, Melvin I., ed., The Supreme Court Justices: A Biographical
Dictionary. New York: Garland, 1994.