The development of Controversial Supreme Court nominations in the late 60s and early 70s. We are looking at the war in court, this increasing surge of controversial decisions from the court with two basic principles. Remember the idea of counter majoritarianism. The idea that it was the job of the Supreme Court to stand up on behalf of people who may not have majority support, whether it was atheist or Civil Rights Activists are criminal defendants throughout the 1960s. And second was the emergence of this philosophy that some historians have called right related liberalism. The idea that liberalism was primarily devoted to the protection of individual rights. As a result, the Supreme Court became an important mechanism for this. One problem, which is that if you are going to govern, you have to be able to appoint Supreme Court justices. This becomes an increasingly fraught prospect for liberals. So the backdrop. Lbj. After 1964 with the Civil Rights Act, 1965 with the Voting Rights act, he has a sense that the Supreme Court will be significant. Unlike with kennedy, there are no openings on the court. Johnson essentially creates one. The first one comes in 1965. It is a custom which dates back to the wilson administration. There was one jewish member on the court. The jewish member on the court in the early 60s was arthur goldberg. He had been appointed by jfk. Johnson however wants to appoint this man, his longtime lawyer and fairly close personal friend and advisor, abe fortas. Who was jewish. He goes to goldberg and says look, it is important, we have a problem in vietnam. It can only be handled at the united nations. You are the best negotiator i know. For the good of the country you need to resign from the Supreme Court, accept a job as a u. N. Ambassador. He believes it and goes off to the um and is basically ignored by johnson for two years. Fortas continues to advise johnson behind the scenes on important policy issues. He helped to draft johnsons speeches. Imagine in the current environment of john roberts regularly consulted on trumps speeches. It would cause problems for johnson down the road. Then second, in 1967, Thurgood Marshall who we have seen previously as the naacp chief counsel. Who johnson appointed to the Circuit Court in new york, johnson sees an opportunity to name the first africanamerican to the court. But there is no vacancy. There is however a vacancy to the position of attorney general. Johnson looks far and wide in the country and decides that ramsey clark would make the worlds top attorney general. There is one small problem, his father is on the Supreme Court. Johnson goes to ramsey clark and says i would love to appoint you as attorney general but i cannot do it with your father on the Supreme Court. If your father is willing to resign as a Supreme Court justice, i could appoint you as attorney general. The father resigns and johnson gets another vacancy. And marshall moves on to the court. Johnson assumes he will run for reelection in 1968, he will be reelected in 1968, there are three very elderly members of the court, including two justices who are not in good health in the late 1960s. So he is working under the assumption he will be able to appoint four or five justices by the time he leaves office. Instead, we all know the history. Johnsons support begins to weaken and in march of 1968, he announces he will not run for reelection. By the summer of 1968, it seems pretty clear that the democrats will have a tough time winning the election. This means johnsons successor will likely nominate the replacement for the chief justice. And so warren, in june of 1968 decides to preempt this possibility. He makes an announcement that he will retire as chief justice of the Supreme Court upon the confirmation of his replacement. What warren is telling conservative senators, you have a choice, you can confirm whoever lbj nominates or i will be there as the chief justice continuing to issue these liberal opinions. The expectation is most members of the senate will more or less go along with that. Even if they dont like the idea of johnson naming a replacement. There is one other thing that is in the back of the minds of both warren and johnson. Johnson is arguably the most gifted president in American History and if not the most gifted the second or third most gifted with understanding how congress operated. He had a sense of what he could get through congress. As johnson nominates a replacement, he is thinking of this chart. These are all Supreme Court nominations in the last two political generations. Dating back to 1937. All the nominations from fdr, truman, eisenhower, kennedy, and johnson. Take a look at this middle column here. Most of these nominations are confirmed with the letter v. That means there is a voice vote. The senate does not even bother to hold a roll call. It automatically confirms the justice. Almost all of the others are overwhelmingly confirmed by the senate. By the late 1960s, there has become this expectation that yes in the constitution it says the president nominates the Supreme Court justice and has to confirm the selection. But in the real world, whoever the president nominates will get confirmed and this is what johnson assumes will happen in 1968 as well. In june of 1968, the assumption is johnson has out fought his opponents again. Out thought his opponents again. He will get a liberal chief justice on the Supreme Court who will serve throughout the 1970s and ensure the Supreme Court will remain liberal. There is another chart that johnson might have wanted to examine but did not. That is the chart of his declining public support. The chart here on the left is his approval as measured by gallup. He goes up and down a little but there is a pattern. It goes from quite high in the 1963, 1964. By early 1968 his Approval Rating is hovering around 35 . Sake, that is seven or eight points below what trumps Approval Rating currently is. It is a very low Approval Rating for lbj. Along with the fact that he is not terribly popular, he is not running for reelection. The last time there had been a Supreme Court justice confirmed by the senate who had been nominated by a president who had announced he was not running for reelection was 1893. That was a long time ago. This charming looking man. Howell jackson, who was a Grover Cleveland nominee. Served for a couple of years and got ill and died in the 1890s. From this standpoint, there is a good precedent for johnson. A sickly any president who is nominated gets confirmed. With this precedent, johnson may have some problems here. He is not a popular president , the senate did not have much of a precedent in terms of confirming late nominees. Johnson is looking at one other vote. He fails to anticipate where the key opposition will come from in 1968. This is the chart johnson is looking at as he is making his selection. This is the roll call vote for Thurgood Marshalls confirmation in 1967. You will notice this is not a unanimous vote like many of the others in the 1930s, 1940s, and 1950s. There are 11 senators who voted against Thurgood Marshalls confirmation. The 11 are up top on the chart. If you squint closely you can pretty much identify where these people are coming from. They are all from the south. 10 of them are democrats. This is a peerriod, and the 11th a period where the 11th is a former democrat who is at this point a republican senator from south carolina. In johnsons mind as he is thinking of who will be a good replacement for warren, what he is saying is the people i need to preempt is a southern opposition. If i can come up with a nominee who can appeal to the southerners, the nominees will go through without any problem. Johnson makes this a little too complicated. He concludes that he does not want to name a new replacement. Instead, what he wants to do is elevate his friend. Justice fortas. So he wants to come up with a replacement for abe fortas as associate justice. He will have to make two nominations, rather than one. He goes through a number of lists. The name he is most interested in looking at is homer thornberry. Here is a photograph of johnson with thornberry. He knows thornberry very well. Thornberry had succeeded him in the house of representatives. Johnson had been appointed thornberry to the fifth circuit based in new orleans. The Appellate Court judge nominated by johnson, he is a former congressman. He is very friendly with southern politicians. He is particularly friendly with richard russell, the most powerful of the southern democrats. Johnson senses thornberry is somebody who will appease these southerners. Who didnt like Thurgood Marshall and he will ensure that fortas will be confirmed. Now, before johnson announces thornberry, he gets on the phone with several key figures. To sort of fill them out on what they were thinking. Generally, when it johnson would johnson would call you, this when johnsonlly, would call you, this was not a two way conversation. Johnson was not soliciting information. He was basically encouraging you to think as he did. His first call goes to justice fortas. He wants to get feedback for who would be a good replacement for fortas as associate justice. Johnson has already made up his mind and his job is to basically say yes. In fact, heas was congress, city councilman, state legislator. I think it would be awfully good on the court. Knowing ever every department of this government. From the standpoint of the liberal press, they will not give me a fair trial. Hello, i would be nominated on my record for several liberties sense of rights. But the times on the post are against me. Because are antisemitic. They are antisouth. It is because i live in texas. That is the only thing they have against me. I have adopted their platform. I know youve got to go. Ive got to get some more how will you rate these people one through five . From the standpoint of my practical problem and what i may want to do on all the other things. Ive got geography, ive got the senate, i have to have sure votes. I look at this not from your standpoint, look at this from my standpoint. You know me and what i want. I want somebody i will always be proud of his vote. Thats the first thing. Then i will be proud of his opinion. I want to be proud of the side he was on. I want to be sure he votes right. That is the first thing. Prof. Johnson these are private conversations. Fortas is not aware he is being recorded. Johnson does know that he is being recorded. He is perfectly candid here about what he wants. If you get a brilliant justice, that would be great. But the chief goal here is to get someone who will vote the way johnson wants. One suspects that every conversation had a similar line, i am sure it did with trumps nominations as well. There is an obvious win here. Johnsons goal is to ensure a liberal majority on the court. He thinks he can do that with fortas and thornberry. Then johnson reaches out to key senators. He understood how the senate operated in the 1950s exceptionally well. His problem will be the senate in the 1960s operated quite differently. Johnson in the 50s believed he could filter through key senate leaders. He reaches out to richard russell, a democratic senator from georgia. A segregationist, but the most prestigious of the southern democrats. Russell likes thornberry a lot. He doesnt particularly like fortas. But he says he will be willing to go along with the nomination because that will get thornberry onto the court. Johnson reaches out to the minority leader. Head of the Senate Republicans, everett dirksen. A republican senator from illinois. He and johnson had worked closely on the Civil Rights Act. On the Voting Rights act. He was a supporter of africanamerican civil rights. He knows fortas and likes him. He also knows and likes thornberry. Dirksen commits to supporting him. Johnson also reaches out to mike mansfield, the majority leader of the senate, representing some liberal moderate democrats. He isnt thrilled about fortass nominee but will go along. In late june of 1968 it looks as if this is a done deal. Fortas has been nominated, thornberry is the associate. The three most powerful members of the Senate Johnson believes are already on board is willing to support the confirmations and this is a done deal. Johnsons problem is that he essentially lost a decent amount of power. He hasnt conceptualized that and he will learn it very quickly in the summer of 1968. Two things happen almost immediately. The first, 19 republican senators signed on to a Public Statement prepared by this man, robert griffin, a republican senator from michigan. It comes to be known as the round robin. It articulates the view that will reappear in American Life in 2016. It is potentially the same argument Mitch Mcconnell makes against the garland nomination. Which is look, we have a vacancy for the Supreme Court, a president ial election going on, we will withhold our support from any nominee on the grounds that the new president should be able to make this choice. [inaudible] prof. Johnson johnson at this point had been elected in 1964. Griffin has seen the polls. By june of 1968, nixon has assumed a fairly healthy lead over Hubert Humphrey. Griffin is saying he is confident nixon will win. He basically says i want a republican to make the nomination rather than a democrat. If the polls were flipped. Lets say we are in an alternative world and Hubert Humphrey were somehow ahead by 15 points in the polls. I suspect griffin would have said lets go along with this. He gets a significant chunk of Senate Republicans. 19 senators who were signing on to this statement. Remember, we have 11 senators. 10 of whom are democrats. On paper, we have almost 30 senators who seem to be skeptical about a possible johnson nomination. The Johnson White house staff does not detect this. Just at the time as the griffin round robin is coming out. Johnsons liaison team in the white house that basically counts votes in congress prepared these documents for lbj. They say this is a shoe in. We have roughly 70 of the support in the senate. We have a handful of opponents but you dont need to worry. Fortas is going to get confirmed. On paper, from the president s standpoint, this nomination seems to have gone very well. In reality there are big problems emerging that they do not seem to be detecting. Johnson privately in late june and early july of 1968 is telling his aides that griffin is bluffing. Yes, there are 19 republicans who have signed this letter, but in reality all of them will not vote against fortas and thornberry. They will back down when the nominees get to the floor. This is not what happens. Johnson does not quite understand. Then there is a second problem. Dating back to louis brandeis, Supreme Court nominees have gone before the Judiciary Committee. It had been a fairly normall practice where Supreme Court nominees testified before the committee and then asked their opinions on constitutional issues and offer feedback. These tended to be quite routine. Nothing like we saw the last few weeks. Nothing like we have seen before. Nothing like where there would be a television spectacle. You have to go through the motions. The problem for johnson is that the Judiciary Committee in 1968 is probably the single most hostile committee to the president and liberal philosophy that exists. Think back a few weeks ago to the Brett Kavanaugh hearings. We basically have 19 member committee. 10 very conservative republicans, nine fairly liberal democrats. It is an ideologically split committee. That is not the case in 1968. The chairman of the committee is this man, jim eastland, a democratic senator from mississippi. He voted against Thurgood Marshalls confirmation and voted against the Civil Rights Act. Voted against the Voting Rights act. The second ranking democrat on the committee, john mcclellan, democratic senator from arkansas had been absent from the marshall confirmation but had made clear he opposed marshall. Voted against the Voting Rights act and voted against the Civil Rights Act. Sam ervin, who we will encounter again in this class, democratic senator from North Carolina voted against the marshall confirmation, voted against the Voting Rights act, and voted against the Civil Rights Act. These are the three most senior democrats on the Judiciary Committee. These are senators who today would be among the most conservative members of the senate. They are bitter critics of the warren court and the decisions. Essentially, what they decide amongst themselves, the chair of the committee controls how the process operates. The key person in the cavanaugh hearings was chuck grassley. The republican chairman who presided over the hearings. What these three decide as they will use this opportunity to put the warren court on trial. To basically bring abe fortas before their committee and grill him on the variety of the warren courts decisions. Instead of a routine hearing, what he gets is questions about specific decisions, he doesnt give consistent answers. Sometimes he says he will defend the decisions and sometimes says he cannot talk about them because he cannot talk about how the court may decisions. The Committee Also starts asking questions about fortassadvice to johnson. It is highly improper. A Supreme Court justice should not be providing political advice to a sitting president. Everyone knew fortas was doing it. He says he cannot give this advice because it would be an improper intrusion into the courts freedom of action. The conservative democrats say that does not make any sense. You are willing to talk to the senate. Fortas this is always a problem with fortas and lbj. Fortas fought like a lawyer intended to give these very specific, legalistic answers that tended to sound very defensive. He was not a particularly good witness. The star of the hearing is not any of the democrats. The star of the hearing is this man, strom thurmond. Republican senator from south carolina. He flipped to the republicans in 1964. Thurmond was a demagogue. He understood how to prosper in politics. He was a sharp proponent of civil rights. In the thurmonds mind, the questions coming from fortas and mcclellan work too legalistic. They werent, he feared, they werent going to attract the attention of the public. He goes over fortass judicial record. Which is not particularly robust. He has only been on the court for three years. What thurmond noticed was he had frequently been in 54 majorities. On paper, the decisive vote. On a series of decisions that the warren court made over pornography issues. Where the court struck down state laws restricting the dissemination of foreign pornography. Strom thurmond saw this as a liability, someone who was outside of the ideological mainstream. He welcomes as a witness and member of the minority, they get to invite a handful of witnesses. This man, james clancy. He is head of citizens for decent literature, and antipornography literature. He describes in quite robust to details, the plot lines of various films and books that fortass decisions upheld as nonobscene. This line of attack that fortas is a pro pornography justice starts to resonate. A lot of conservative members start to distance themselves. Both russell and dirksen retreat a bit. Russell comes out against fortas. Dirksen says he might support fortas, he might not. Johnson is trying to figure out what is going on. The problem here is he does not have any close allies on the Judiciary Committee. He finally turns to this man, George Smathers, a democratic senator from florida. A low Ranking Member of the Judiciary Committee. A close personal friend of jfk and lbj. He tries to get a sense from smathers, why is this Committee Process taking so long . What George Smathers tells him is that these senators are very interested in the pornographic films and indeed he suggests they frequently want extra time to view these films in person to determine their level of pornography. He is telling johnson that eastland is using procedures to delay things. If it is delayed after the election it looks as if fortas will have little chance that nomination. Two contextual items, johnson references this film called the graduate. Dustin hoffman is the star. It is seen as a very racy film in the context of 1968. Hoffman is seduced by the mother of one of his friends. George smathers talks about his own views for pornography here. He had a reputation for a very active social life. That is not the portrayal George Smathers gives of himself in this conversation. I choose not to look at it, others choose to look at it. I dont look at it. I have not seen it. I dont know whether or not this is the kind of thing that should be going around or it shouldnt. They will look into this very deeply. Would you vote on it next wednesday . We are due to vote on it next wednesday. With the cooperation of eastland, i dont know how. He is referring to a rule of the Judiciary Committee that allows any member of the committee to delay the vote by one week. As you are dealing with a president that is running out of time, the repeated delays will cause significant problems. The pornography argument resonates with the public. He is referring to a rule of the prof. Johnson he is referring to a rule of the Judiciary Committee that allows any member of the committee to delay the vote by one week. As you are dealing with a president that is running out of time, the repeated delays will cause significant problems. The pornography argument resonates with the public. It is the first Supreme Court nomination in American History that all of us would be at least somewhat familiar with. The public is engaged with the confirmation. They are reaching out to members of the senate. The letters that senators are getting in the preinternet age. You contact the Senators Office by typing out a letter. The letters they are getting are overwhelmingly opposed. These are a couple of photos of letters sent to a democratic senator from north dakota. He was one of fortass strongest defenders in the senate. They are concerned about what they are hearing on fortas and they are saying he is making too many compromises with the issue of pornography and you cannot compromise with the devil. This is sort of problematic. Lets say you are an undecided senator. You are getting all of these letters opposing fortas. Johnson will not be around to protect you next year. You might be coming up for the election in 1970. Everybody has strong opinions. You might be inclined to vote no and avoid the problem. The support starts to erode quite significantly. Johnson gets on the phone with ramsey clark and starts complaining that griffin and thurmond and the Senate Republicans had been spreading too many unfounded rumors about fortas. It was time for the democrats to start spreading unfounded rumors about griffin to even the score. As we see, clark does not get a word in. They are having press conferences. Hes having a Big Press Conference this morning. They make party apple party allegations. We just get tried and convicted every day. Get somebody that can write some mean damn speeches that they have to deny and let them do some research. That is what you have to do. Youve got to employ their resources and talents. Do the research instead of attacking you. I find some reason that griffins is in this thing. He said a week before that he was against anybody. He was not worried about pornography. Anybody look at his face and can tell that does not bother him. Pornography. He was worried that he could not make a partnership out of the chief justice. And the republican chief justice had delayed it and took politics with it until he could get in. That is what he said. He said it days before we named them. Somebody ought to point that out. Prof. Johnson this is desperation. When your tactics are to say nasty, uncorroborated things about republicans, you are probably going to lose. Griffin delivers the final nail in the coffin for fortas in the early fall of 1968. Griffin was a quite talented senator. He said he had heard rumors of him being unethical. If people had information, he says, my office. What he finds out is that fortas had been giving a significant cash bonus. 15,000, at that time it is not an insignificant amount of money to teach a very short seminar at American University law school. American university is in d. C. This money had not come from American University. Instead, it had come from a handful of private donors who were friends of fortas. This sounds uncomfortably close to being a bribe. The dean of American University law school says that 15,000 sounds like a lot of money but he was doing more than teaching a class. He had to prepare a syllabus. As we know preparing a syllabus is very extensive work. It is not a credible allegation. The committee invites fortas to come back before it and explain what he did for the 15,000. Fortas says nope and at that point the Senate Democrats and republicans announce they will filibuster the nomination. They will not allow it to come to a vote. It can only be breached if two thirds of the members of the senate vote to end debate. It is clear that will not happen. October 1, the senate votes. Fortas by this point is reduced to hoping for the symbolic victory. He is hoping a majority of the senate will vote to impose culture. Saying a majority of the senate wanted me on the Supreme Court and these conservatives blocked me. The final vote is 4540 three. 4543. Cannot even get to 52 impose cloture. At that point the nomination is dead. October of 1968, he is still in office for a few months. He does not quite give up but this amounted to his last chance. Fortas withdraws the next day. After spending 24 hours hoping he might find a way to revive himself. Warren is still on the court but has made clear he does not really want to stay on the court. As all of this is occurring, the president ial election in which the Supreme Court has emerged as a major issue for both of the challengers. George wallace, as civil rights opponent, governor of alabama. He runs as a candidate of the America Independence party. Strong opponent of civil rights. He argues the warren court insulted the power of has exulted the power of africanamericans, criminals, atheists communist, at the expense of real americans. He gets strong support in the south. Fairly strong support in some white, ethnic areas in the north. Very late in the 1968 campaign wallace is pulling in double digits in brooklyn, staten island, his best burro in new york city. In queens, and in upstate new york. He is not just a southern candidate. Indeed, he poses a problem for the republican nominee, richard nixon. If wallace siphons to many conservative votes, he would help the democrats win with the minority of the votes. The strategy was called at the time a southern strategy. It was much broader of challenging the precedence of the warren court. Appealing to what we would call a racial backlash vote. But doing so in code. You wont hear anything that the Civil Rights Act was bad or that he was opposed to equal rights for lack people. For black people. He would leave impressions of the mind. The issue he seizes on his crime. On is crime. He says the warren court has made too many decisions in favor of the rights of criminals and it created dangerous situations for society as a whole. Here is an example of a Television Ad he runs in 1968. It is a very cleverly constructed ad. There is only one person in this advertisement. We are left to imagine who the person pursuing this woman actually is. Crimes of violence in the United States have almost doubled in recent years. Today, a Violent Crime is committed every 60 seconds. A robbery every 2. 5 minutes. A mugging every six minutes. A murder every 43 minutes. It could get worse unless we take the offensive. Freedom from fear is a basic right of every american. We must restore it. Prof. Johnson the video of that ad does not appeal to racial sentiment at all. We are seeing a woman walking down the street. If you are a viewer in 1968 and you happen to imagine that an africanamerican man was following that woman, that might be what is in your mind. It is not what nixon says. The nixon strategy in 1968s plausible deniability on the issue of race. Not stimulating a backlash sentiment but he seems to be talking about crime, and there seems to be the idea that africanamericans are criminals. He does not really push the issue in a way that wallace does. There is a lot of overt racist rhetoric that we see from wallace. Student our those numbers are those numbers accurate . Prof. Johnson they were perfectly accurate numbers. There was a crime wave. There are riots in most urban areas in the u. S. Starting in 1964 and going through 1968. Every summer there are major riots. One time in new york, one time in l. A. , in newark, rochester, new york. Nixon is not inventing the crime issue. But the answer he is giving is a simplistic answer. Student do know how that compares to now . Prof. Johnson yeah. We will talk more about this when we get to the 80s and 90s. Violent crime rate is way down from the 60s and 70s. The severity of these crimes has increased because the power of weapons has increased. Murder is down, Armed Robbery is down, muggings are down. This is a period with a much more dangerous period if you want to use that. Nixon is not inventing the issue. But he is putting a particular frame on the issue. Student with dr. Martin luther king, did it cause a problem . Prof. Johnson the other policy backdrop here is that after the assassination of Martin Luther king and the assassination of robert kennedy, Congress Passes a crime control act. The primary thrust of this act is a gun control measure. A fairly weak gun control measure. But nonetheless a gun control measure. From nixons standpoint, the underlying argument is johnson and liberals in washington are interested not in protecting this woman walking down the street. They are interested in taking away or limiting the rights of guns for americans. Nixon overwhelmingly wins. Johnson carried 44 of 50 states. Nixon basically sweeps the country, wallace carries a handful of handful of country handful of states in the south. As all of this is going on, johnson is still trying to come up with a scheme to put a replacement on the Supreme Court. What he thinks is a possibility is to use the recess appointment power. This very obscure constitutional clause that was commonly used in the 19th century. It had started to fall out of fashion in the 20th century. It said when there was a federal vacancy and congress was out of session on a recess, the president could name a replacement that would serve until the end of the next congressional term. What johnson is thinking in late october and early november, before the vote, maybe what i will do is congress is in recess. I will name a recess appointment as chief justice. It will not be fortas. We will not come up with this complicated scheme of a two for one replacement. But name a liberal. The liberal he seizes on is goldberg, the former justice he had driven out in 1965. The hope was if he named goldberg as a recess appointment and goldberg was in place when nixon became president that nixon might be somehow pressured to nominate goldberg for a full term. The chances of that happening were not high. Nixon figures out what he is doing. Almost immediately after nixon wins the election, he issues a Public Statement inviting him to remain in place for the remainder of the term. Johnson concedes that the game is up. He calls warren, this like his conversations with fortas. It was a quite improper call. We have johnson and warren trying to come up with a scheme. This is from november of 1968. This is the last time he thinks of the possibility of the Supreme Court nominee. The press will be asking us what right does nixon have to say it will end january the 20th. We committed we will not name anyone. That leaves me in bad shape with goldberg. What we said to goldberg is this. I told people to talk to me on his behalf. I dont think he could get confirmed and i think it would be tragic for his life. If there were evidence that i was wrong, i would certainly want to preserve it if i could. I would certainly regard him as the appointment. That is my problem with him. I dont think there is much of a chance. Im afraid he wont understand. He will think i have been playing and knowing the whole time that this might happen. Prof. Johnson a typical johnson call. The other person does not really get in much. Warren gets the message and calls goldberg. We tried for the recess appointment but it did not work out. He finally resigns in june of 1969. At which point, nixon nominates warren burger. A fairly conservative judge from the eighth circuit. He was based in minnesota to become chief justice of the Supreme Court. We replaced a white liberal chief justice with a fairly conservative chief justice. That creates a more conservative court. This is only nixons first appointment. Nixon will get to make four Supreme Court appointments in his first term. The second is an unexpected one. Justice fortas. One of the great ironies of this is johnson, by trying to promote fortas from associate justice to chief justice gives the way for fortas to collapse entirely and be removed. The public had been exposed to this idea that fortas is a little ethically challenged. We have the 15,000 deal at American University. He seemed to be consulting with lbj inappropriately. It was clear this guy was not a paragon of ethics. The press start looking into his background. There have been rumors around fortas as a highpriced lawyer before he went on to the Supreme Court. Being a Public Servant cost fortas a decent amount in terms of finances. In 1969, it comes out that fortas had been accepting a retainer. Every year, a 20,000 payment from a financeur who was under criminal investigation. If youre planning a career as a Supreme Court justice, it is not a good idea to accept a payment from someone who is subject to criminal investigation. This is highly unethical conduct. This probably would have never come out if the press was not prompted to look into fortas. Nixon start sending out rumors that if he does not resign, republicans and conservative democrats will seek to impeach him. It seems not implausible that he would have been removed from office. It certainly would have been a difficult flight. Fortas concludes that the integrity of the court is such that i need to resign. In the summer of 1969, fortas steps down. The guy who was appointed in 1965, who everyone assumed would stay on the court at least through the 1970s is out after four years. Nixon goes to the justice department. In 1968, nixon used a southern strategy. Approaching the racial backlash to get southern votes. Nixon does not carry some southern states. He loses texas to humphrey, loses arkansas, mississippi, louisiana, alabama, and georgia to george wallace. He says look, why dont we use this vacant Supreme Court appointment as a way of appealing to southern conservatives. Showing them if they affiliate with the republican party, they will get a concrete benefit. The warren court was not popular in the south. Nixon concludes that will be away of bolstering republican support. This seems to be a quite good judge from North Carolina on the fourth circuit. It is an Appellate Court in the midatlantic state. His name is clement haynesworth. Very popular among North Carolina republican types. A republican nominee at a time where there were not Many Republican judges in the south. It had basically been a one party, democratic area. The problem is haynesworth actually has a pretty good judicial record. Not a great judicial record. There are some rumors of ethical improprieties, he had a couple of votes on civil rights issues that civil Rights Groups perceived as not particularly supportive. A group of young liberals in the senate kind of had been bitter to buy what happens to abe fortas decide they are going to fight against haynesworth. Ted kennedy, democratic senator from massachusetts. A very young ted kennedy at this point had been elected in 1962 to take the seat that his brother had once occupied. Kennedys name to the Judiciary Committee. One of the democrats point people on civil rights issues throughout the 1960s. He served three terms from indiana, he very conservative state then and now. He narrowly was elected in 1962, narrowly reelected in 1968, narrowly reelected in 1974, and finally gets crushed in 1980 by dan quayle who will la ter pop up as George H W Bushs vice president. Even though he was from a conservative state, he he took liberal positions. He was a democratic activist on constitutional issues. He is critical of haynesworth as well. He is worried that from the court, the result will be a string of anticivil rights decisions. The striking thing about the haynesworth vote is not the kennedy opposition. It is we have all of these red dots on the rollcall chart. These are Senate Republicans who cast votes against haynesworths confirmation. His were we have conservative democrats and liberal republicans. The last republican to be elected to the u. S. Senate from new jersey. That was in 1972, a very liberal republican. Jacob javits, the last of the new york liberal republicans would stay on the senate until 1980. Margaret chase smith, publican senator from maine, deck relation of conscience against joseph mccarthy. Charles mathias, a republican senator from maryland. Basically every liberal or moderate republican in the senate, and even a couple of conservatives, robert griffin, charles caddell, a shortterm interim senator. Goodell had been hoping for a full term if he could get elected. He goes down to defeat, 5545. Nixon is astonished. He assumed this would be a safe thing. The fortas confirmation was a oneoff. The fortas confirmation change the rules of the game. They would be more willing to look at Supreme Court nominees with a degree of skepticism. As we will see over the next several weeks. That pattern continues at several points in the future. Nixon at this point has two options. Just to conclude this is a democratically controlled senate, republicans are not the majority. He concluded that in that senate , there simply is not a majority for a very conservative southern judge who might be perceived as hostile to civil rights. And he needs to look elsewhere. That would have been the reasonable response to the vote. Nixon often did not take the reasonable response. If he is more conservative than haynesworth, that is fine. I dont particularly care. It has to be another southerner, if at all possible. Justice Department Takes a look at Appeals Court judges. They do not find anyone who would be appropriate, a republican. Who seems to be of a sufficient age to be on the Supreme Court. They see a District Court judge, the lowest level of the federal judiciary from florida. This man named g harold carswell. They tell nixon he is not perfect, because he is not an Appeals Court judge. The traditional path for Supreme Court nominations at this point was you want to move from the Appeals Court to the Supreme Court. They say he is a republican. He is very conservative. If you want to go with a southern conservative nominee, he is your man. Nixon says that sounds great, we will nominate him. There are two problems with the carswell nomination. The first is that haynesworth did have a couple of votes that were hostile to civil rights. It was no indication that haynesworth was racist or that he was personally hostile towards africanamericans in any respect. He would stay on the Circuit Court after his defeat. For several years, he was wellliked liked by both parties. You might have liked his votes or disliked his votes, but he was not personally problematic. Carswell, before entering the judiciary had run for Public Office in georgia. It doesnt appear as if the nixon people pick this up. In 1948, running for state legislature in georgia, he delivered a speech saying he was in favor of segregation forever. If haynesworth is unacceptable because of the civil rights positions, carswell will be worse. Nixon pushes Senate Republicans. Saying we cannot let the Senate Democrats do this to us twice. You have to stay with me on carswell. It looks as if carswell, despite the embarrassing vote might make it through. Then a second problem emerges. District Court Opinions get appealed to the Appellate Courts. For the most part, District Court judges get it right. You dont see tons of decisions that are overturned by the Appeals Court. Sometimes it might be 15 or 20 . Carswell on the other hand has seen his opinion turned over at a higher ratio than any other District Court judge in the country as of 1969. A lot of these were not cases that carswell is making anticivil rights decisions and the Appeals Court was saying you cannot do that. These were technical decisions. Carswell seems not to be understanding the basics of the law. Their quickly emerged a consensus among both parties that this was a man who was not particularly smart. Whether that was a good nominee for that to be on the court. This becomes crystallized in a senate debate. The Republican Point person, the senator from nebraska, his argument for carswell is that the mediocre people of the United States deserve representation on the court as well. This is a very peculiar argument for a Supreme Court justice. From the Senate Republicans who had been inclined to go along with nixon, even though they did not like carswell and his civil rights opinions. This is the argument, that the mediocre are entitled to representation is a bridge too far. Carswell goes down by a narrow margin. 4551 is the vote. Carswell is gone