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