Nominations in the late sixties to early seventies, and the backdrop was the last time we looked at the war in court, this increasing surge of controversial decisions from the court. Two basic principles. Counter majority organism, the idea that it is a particular 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, or criminal defendants throughout the 19 sixties. And second, was the emergence of this philosophy that some historians have called rights of related liberalism. Liberalism in the United States was primarily devoted to the protection of individual rights, and as a result, the Supreme Court became a very important 1ourt became a very important one problem, which is that if your governing is going to approach the Supreme Court, you have to a Supreme Court justices, and as we see this becomes an increasingly fraught prospect for the liberals. So the backdrop. Lbj. After 64, after the Civil Rights Act, 65 with the Voting Rights act, he has a sense that the Supreme Court is going to be significant, but unlike with kennedy, there are no openings on the courts, so johnson essentially creates. One first one comes in 1965. There is a custom that dates back to the Wilson Administration with Louis Brandeis that there was one jewish member on the court. Jewish member in the court on the sixties was arthur goldberg, appointed by jfk, symonds the liberal block on the court. Johnson however, wants to appoint this man. Longtime lawyer, longtime personal friend and adviser, named gabe ford, is whos jewish. So he says to goldberg, he says look arthur, its very important we have a problem in vietnam, that simply can only be handled at the united nations. Youre the best negotiator i know. What you need to do for the good of the country is resigned from the Supreme Court, except a job as un ambassador, and goldberg believes it, he goes off to the un and is basically ignored by johnson for the next years, and johnson puts forest in the Supreme Court in 65. For this continues to advise johnson behind the scenes unimportant policy issues. He helps to draft johnson speeches. So imagine in the current environment of john roberts was current currently advised on trumps speeches. This would cause a problem for johnson down the road. And second, in 1967, firebird marshall, we have seen previously as the naacps chief counsel, who johnson had appointed to the Circuit Court right here in new york. Johnson sees an opportunity to name the first African American to the court, but there is no vacancy. There is however a vacancy to the position of a turtle attorney general. Johnson looks far and wide in the country, and he decides it ramsey clark liberal or, would make the top attorney general. Just one stalk small favor, his father is on the Supreme Court. Johnson goes to ramsey clark in, he says id love to appoint you as attorney general, but i cant do with your father on the Supreme Court. If you say your father is willing to resign as a Supreme Court johnston, that i can appoint you as attorney general. His father resigns, johnson gets another vacancy and then he moves on. The elderly members of the court including two justices black and harlem or not in good health in the net late 1960s. Hes working under the assumption is gonna be able to appoint four or five justices by the time he leaves office. Instead we all know the history, johnson support begins to weaken and then march of 1968 he announces he is not going to run for reelection. By the summer of 1968, it seems pretty clear the democrats are gonna have a hard time winning this election, which means johnson successor is likely going to nominate the replacement for chief justice. So warren in june of 1968 decides to preempt this possibility. Makes an announcement is going to retire as chief justice of the Supreme Court, upon the confirmation of his replacement. What warren is telling to conservative senators, you have a choice. You could confirm whoever lbj nominates to take my place, or im going to be there as the chief justice continuing to issue these opinions and the expectation is most members of the senate will more alaska along with that, you know if they dont like the idea of johnson and they need a replacement. Theres one other thing which is in the back of the minds of both warren and johnson. Johnson is arguably the most gifted president in American History if not the most is a deep understanding of how congress is operated. As johnson nominates a replacement for warren, he is thinking about this. Israels Supreme Court nominations in the last two political generations. Dating back to 1937, all the nominees from fdr, truman eisenhower, kennedy and eisenhower. Most of these nominations are confirmed with the letter v. , that means there is a voice vote in the senate. The senate doesnt bother to hold of roll call vote, it is confirms the justice. Almost all the others are overwhelmingly confirmed by the senate. By the late 1960s, its becomes this expectation yes in the constitution it says the president nominates a Supreme Court justice in the senate has to confirm that selection, but in the real world whoever the president nominates is gonna get confirmed. This is what johnson thinks is gonna happen. In june of 60, eight going to the Johnson White house in the second, the assumption is johnson as out bought is opponents again, youll get a liberal chief justice on the Supreme Court by late 1968, will serve throughout the 1970s and sure the Supreme Court will remain liberal. Now there is another chart that johnson might have wanted to examine but did not. Thats the chart of his declining public support. The chart here on the left is johnsons approval as measured by gallup through his presidency, but there is a pattern here. Goes from quite a high and 63 and 64 and drops. By early 1968, johnsons approval rate is hovering around 35 for comparisons say, thats seven or eight points below what trumps Approval Rating currently is. This is a very low Approval Rating for lbj. Along with this the fact is not terribly popular, hes not running for reelection. The last time there had been a Supreme Court justice confirmed by the senate who had been nominated by president who had announced he was not running for reelection was 1893. A rather long time ago. This charming looking man Howell Jackson was a Grover Cleveland nominee. Search for a couple of years, got ill and died in the late 18 nineties. From this standpoint, theres a good precedent for johnson. Any president thats nominated gets confirmed. By this president , johnson may have some problems here. Its not a popular president , the senate didnt have much of a president in terms of not confirming late nominees by the president. Johnson is looking at one other vote. He fails to anticipate where the key opposition is gonna come from in 1968. This is the chart that johnson is looking at as he is making his selection in 1968. This is the roll call vote for Thurgood Marshalls confirmation eight and 67. Theres not a unanimous vote. There are 11 senators who vote against marshals confirmation, the other on top of the chart. If you squint closely, good pretty much identify where these people are coming from. Theyre all from the south. Ten of them are democrats, this is where segregationists are as democrats remain in the south, and former Democrat John thurmond, who is now a republican senator from south carolina. In johnsons mind, as hes thinking about who would be a good replacement for warren, what he is saying is the people i need to preempt is southern opposition. Bucket come up with some nominee that will appeal to the southerners, then the nominee will sail through without any problem. Johnson however makes this a little too complicated. He concludes that he does not want to name a new replacement for warren. Instead what he wants to do is elevate his friend, Justice Fortas from the associate justice to be chief justice. You want to come up with a replacement for four days, hes gonna have to make two nominations rather than one. He goes to a number of lists. The man you are most interested in looking at his home or thornberry. Photograph of johnson with thornberry. You know starting very very well. He had succeeded him in the house of representatives when johnson was elected to the senate. Johnson had been appointed thornberry to the fifth circuit based in new orleans. Hes Appellate Court judge, nominated by johnson. Former congressman, hes very friendly with southern politicians. Particularly with russell. Johnson senses that thornberry will appease the southerners, who didnt like their good martial, and would ensure that floridas would be involved. Before johnson announced on, he gets on the phone with several key figures to feel them out on what they were thinking. Generally would when johnson would call you, theres not a twoway conversation. Johnson was not soliciting information, he was encouraging you to think as he did. His first call goes to justice for this, and the purpose of this call is to get feedback from floridas on who would be a good replacement for forest as associate justice. As will be clear, johnson has already made up his mind and for this job here is just to say yes. Thornberry has city Council State legislature. I think could be awfully good on the court and knowing every department of this government, but from a standpoint of the liberal press this will not give me a fair trial, id be nominated for acclamation on my record. Theres several liberties and civil rights. The time the folks that are against me, because theyre antisemitic. Because i live in texas i dont have style. Thats the only thing they have against me. I went up to the platform and i know youve got to go i just got to get some more. Our gonna write these people . From a standpoint of my practical problem when i made to do here and all the other things, i got geography i got percentage, ive got these philosophies. We have sure votes. [in] look at it from my standpoint. You know me and when i want. I want som5u÷p0 ill be proud decider on. These are private conversations. For this is not aware hes being recorded. Johnson is perfectly candid on what he wants. If you get a brilliant justice obviate, but the chief goal here is to get someone who will vote the way that johnson wants. One suspects that every conversation from a president after johnson had a similar line. Theres an obvious point here, johnsons goal is to ensure a liberal majority on the court. He thinks he could do that with for this and thornburg. And then johnson reaches out to key senators. Johnson was majority leader in the 1970, he his problem will be the senate in the 1960s operated quite differently. Johnson in the fifties believe that he could filter through key senate leaders. He reaches out to this man richard russell, democratic senator from georgia. Segregationist. But the most prestigious at the southern democrats, russell likes thornberry a lot. Doesnt particularly like for this, when he says he will be willing to go along with the nominations because that will get thornberry onto the court. Johnson reaches out to the minority leader. Head of the senate republican, a republican senator from illinois. He and johnson had worked very closely on the Civil Rights Act, the Voting Rights act, he was a supporter of African American civil rights. He knows for it is, he likes them. He commits to support him. He reaches out to mike mens field, the majority leader of the senate. Representing liberal moderate democrats. Hes not thrilled about the nomination but hes willing to go along with johnsons plans. It looks in johnsons mind in late june of 1968 as if this is a done deal. If for this has been nominated, and barely is the associate. The three most powerful people in the Senate Johnson believes, are already on board as one to support both confirmations. This gonna be a done deal. Johnsons problem is that he essentially lost a decent amount of power by the fact that hes not running for reelection. He hasnt conceptualize that. You learned very quickly in the summer of 1968. Two things happen, almost immediately. The first is that 19 republican senators signed on to a Public Statement, prepared by this man. Robert griffin who is a republican senator from michigan, which comes to be known as the round robin. Which articulate the view that will reappear in American Life in 2016. This is essentially the same argument that Mitch Mcconnell makes against the nomination. We have a vacancy for the Supreme Court, theres a president ial election going on, we are going to withhold our support from any nominee. On the grounds that the new president should be able to make that choice. [inaudible] no johnson at this point had been elected in 64. What griffin is doing here griffin has seen the polls. By june of 1968 nixon has assumed a fairly healthy lead over humphrey. Griffin is saying hes confident nixon is going to win a once a republican to make this nomination rather than democrat. If the polls were flipped lets they were in an alternate word world and he is on free were ahead of nixon by 15 points in the polls, i suspect that griffin wouldve said lets go along with this. But he doesnt. He gets a significant chunk of Senate Republicans. 19 senators were signing on to the statement. Remember we have 11 senators ten of are democrats who oppose their good marshall. At least on paper, we have 30 senators who seem to be skeptical about a possible johnson nomination. But the Johnson White house staff doesnt detect this. Johnsons legislation liaison team in the office in the white house, that basically counts votes in Congress Prepares these documents for lbj. What he says this issue. And we have 70 of the support in the senate. We have a handful but we dont need to worry, forest is gonna get for us. So on paper, from the president s standpoint this nomination seems to very well, but in reality there are big problems that are emerging. And johnson privately, and late june and early july of 1968, its telling his aides that griffin is bluffing. Yes, there are 19 republicans who have signed this letter but in reality, all of them are gonna vote against fortas and thornburg. Theyre just trying to provide a show. This is not what happens but johnson doesnt understand it. Then there is a second problem. Dating back to Louis Brandeis, Supreme Court nominees had gone before the Senate Judiciary committee, and dating from the thirties, there have been fairly normal practice were Supreme Court nominees will testify before the Senate Judiciary committee, get asked their opinions on constitutional issues, and often some feedback. These tended to be quite routine, nothing like what we saw in the last few weeks, and its nothing like what we had seen before. But setting up like the garland hearings, nothing like that would be a television spectacle but nonetheless 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 two liberal philosophy that exists in the senate. Think back few weeks ago to the kavanaugh hearings. Kavanaugh hearings, basically we have 19 member committee, ten fairly conservative republicans, nine fairly liberal democrats, its essentially ideologically split committee. But the democrats are liberals who are on the committee. That is not the case in 1968. The chairman of the committee is this man jim eastland. Hes a democratic senator from mississippi. Segregationist, i voted against Thurgood Marshalls confirmation, i voted against the Civil Rights Act, and voted against the Voting Rights act. The second ranking democrat on the committee, john mcclelland, Democratic Senate tour from arkansas, have been absent from the marshall confirmation, but had made clear he opposed it. He had voted against the Voting Rights act, and the Civil Rights Act. And sam ervin, we are going to encounter again in this class, democratic senator from North Carolina. And voted against the marshall confirmation, 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 war in court, and the warren courts key decision. And so essentially what they decide among themselves, and easton is the chair of the committee. The chair of the committee controls how the process operates, to take the examples from the last few weeks, the key person was Chuck Grassley who, presided over the kavanaugh hearings. What they decided is, that they are going to use this opportunity to put the war in court on trial. To basically bring abe fortas before the committee and grill him on a variety of warren court decisions. So instead of a routine hearing, whats for this gets is very detailed questions about warren court decisions. He doesnt give consistent answer sometimes, this is ill defend his decision sometimes, often other times he says you cant just to talk about them. And the Committee Also starts asking questions about the advice of fortas to johnson. It is highly improper. A Supreme Court justice should not be providing political advice to a sitting president. Everybody knew fortas was doing. It fortas says he cannot get this advice because that would be an improper intrusion into the courts freedom of action, and the three conservative democrats say that doesnt make sense. Youre willing to talk to the president but youre not willing to talk to the senate . That seems to be not respecting the authority of the senate, and fortas this is always a problem with fortas and lbj. Fortas fought like a lawyer, you tend to give these very specific legal list icky answers, that sounded very deceptive defensive. He was not a particularly good witness. But the star of the hearing is not and if the democrats. The star of the hearing is this man, strong thurmond, republican senator from south carolina, former republican, independent 1948 flipped to the republicans in 1964. He was originally a democrat. He understood how to prosper in politics, its a sharp opponent of civil rights. In thurmans mind, the questions that were coming from fortas and and eastman were not going to attract the attention of the public. He goes over fortas judicial record, which is not particularly, robust hes only been on the court for three years. But what thurman noticed is that fortas had frequently been in five for majorities, the decisive vote, on a series of decisions that the warren court had made over pornography issues. Where the court had struck down state laws restricting the sale or the dissemination of pornography on grounds of this violated the first amendment. And thurman sense that this might be a vulnerability to portray fortas as a pro pornography justice, someone whos outside the ideological mainstream. He welcomes him as a witness, as a member of a minority, they get to invite a handful of witnesses. This guy james clancy who is head of citizens for decent literature, and anti pornography organization. rvcyclancy describes in quite Robust Detail the plot lines of various films and books that fortas decisions had upheld as not obscene. And this line of attack, that fortas is a pro pornography justice, because to resonate. A lot of the conservative members of the senate begin to distance themselves, both russell and distant, senators that johnson thought he had in the bag retreated. Russell comes out against fortas, thurston says he might support fortas, he might not. Johnsons trying to figure out whats going on. The problem is that he doesnt have any close alliesvyyffon te Judiciary Committee. He talks to george maths or mattis, a low Ranking Member of the Judiciary Committee, but a close friend of both jfk and lbj. Hes trying to get a sense from smothers why is this process taking so long . Whats mothers tells him is that these senators are very interested in the pornographic films smathers in fact they want for extra time to frequently view these films in person to determine their level of pornography. And indeed, hes telling johnson that easton is using procedures to delay things. Of course its delayed after the election, it looks that fortas will have little chance of nomination. To contextual items for this club. The first johnson reference was this film that was out called a graduate. Dustin offman is the star. This is a very racy film in the context of 1968. Half minute is seduced by the mother of one of his friends. And smathers is going to be talking about his own views of pornography. Smathers had a reputation for a very active social life but thats not the portrayal that smathers gives of themself in this conversation. inaudible worries me very much. My first reaction is inaudible i choose not to look at but some to choose to look at it. I dont look at, i havent seen it. Theater im not sure its the kind of thing that should be thrown around. Rant and rave in about how this kind of thing you see this graduate. Would you vote on it next month . Do the vote on it next. Wednesday on the committee . The committee. Can you just do that for me . Well with the cooperation of eastman, i dont have the power to stop. It that is the rule of the Judiciary Committee that allows any member of the committee to delay the vote by one week. If youre dealing with the president is running out of time in office, these delays of one week are going to cause you significant problems. The pornography argument resonates with the public. The fortas confirmation is the first supreme confirmation in history that all of us would be somewhat familiar with. That is, the public is engaged with the confirmation. Theyre reaching out to members of the senate, and the letters that senators are getting. This is of course the pre internet age, you contact you senator by typing a letter and sending it. The senators not the senators the letters that the senators are getting are overwhelmingly opposed. So democrat democratic senator from north dakota, and it was one of the strongest offenders in the senate. But these are lines from average south dakotas or who are concerned about what theyre hearing on fortas. They are saying it fortas is making too many compromises on the issue of pornography, cannot compromise with the devil, this is problematic. Lets say you were and undecided senator. Youre getting all these letters opposing fortas. Johnson is not gonna be around next year to protect you. You might be coming up for reelection in 1970. You dont really have strong opinions about this, he might be inclined to say im just gonna vote no and avoid this. So the supportive fortas starts to erode quite significantly. Johnsons furious, he cant figure out whats going on. He gets on the phone with ramsey clark and starts complaining that the problem here is that the Senate Republicans had been spreading to many unfounded rumors about fortas, so its time to for the democrats to start spreading unfounded rumors about griffin, and even the score. And as we see, car doesnt really get a word in edgewise in. This is a Big Press Conference this morning, and they make these allegations, and were just trying to every day are side their side to get in. Get somebody that can write some mean damp speeches that can lead to something, let them do some research. Thats what you got to do. Youve got to pull their resources and their talents, we no we dont ever keep them busy. Id find some reason, i dont think anyones ever pointed out to griffin he wasnt worried about pornography. I look at his face and see that that doesnt bother him. Pornography. He was just worried that by god, he couldnt make a partisan, political deal about out of the chief justice. And the republican chief justice had delayed it and played politics with it, until i can get in and thats what he said. They said this is desperation. When you are attacking your Supreme Court nominee to say nasty things about other republicans, youre probably gonna lose. And griffin delivers the final nail in the coffin in the early fall of 1968. Griffin was a quite a talented senator. He made it clear that he had heard rumors about fortas being unethical. Set of people had information, call my. Office and when he finds out, is that fortas ive been given a substantial cash bonus, 15,000 dollars, which in 1968 is a not insignificant sum of money. To teach a very short senator and American University law school. American university is in d. C. In less than a couple of weeks. And this money had not come from American University. Instead it come from a handful of private donors who were friends of four it is. This sounds uncomfortably close to being a bribe. The dean of American University law school says yes 15,000 dollar sounds like a lot of money, but for it is is doing more than just teach a class. Yet to prepare syllabus. As we know preparing syllabus is very expensive work. This is not a credible allegation. The committee invites him to come back before it and what exactly did for this 15,000 dollars. He says no. At this point the democrats and republicans say theyre going to filibuster the nomination the filibuster could only be breached if two thirds of the members of the senate vote to and debate. Its clear thats not gonna happen. October 1st, the senate votes. Fortas at this point is reduced to hoping for kind of symbolic victory. Hes hoping a majority of the senate will vote to impose closure and say a majority of the senate wanted me on the Supreme Court, and these conservatives blocked me. Instead the final vote is 45 to 43. Cant even get to 50 to impose closure. We need 67. At that point very clearly, the nomination is that. This october of 1968. Johnson is still in office for a couple months. As we see he doesnt quite give up, although this was this amounted to his last chance. Fortas withdraws from the nomination after spending 24 hours hoping you might find a way to revive himself. Warren is still on the court but hes made clearly doesnt want to stay on the court. As all of this is occurring, we have a president ial election which is going on. A president ial election in which the Supreme Court has emerged as a major issue for both the challengers. George wallace. Van countered him before civil rights opponent, governor of alabama runs as american independent party. Strong opponent of civil rights. The war in court as exulted the power of African Americans, of course he doesnt use the word African American, exulted the power of criminals, a and communism at the real expense of real americans and is the position hes gonna take. He gets strong support in the south. But also fairly strong support in some white ethnic areas in the north. Very late in the 68 campaign, wallace was pulling in double digits and brooklyn, in Staten Island which is his best borough in new york city, in queens and in upstate new york. Hes not just a southern candidate. Indeed he poses a problem to the republican nominee, richard nixon. If nixon, if wall is siphon so many conservative votes to nixon, he might win with a minority of the vote. Nixon in 1968 embarks on this quite clever strategy. Of its call that the time, a southern strategy which is actually much broader than a southern strategy of challenging the president s of the war in court, but we would cause a racial backlash vote. Doing so in code. You dont hear anything from 1968 from nixon that the Civil Rights Act was bad, im opposed to equal rights for black people. He wants to leave impressions in the mind. The issue that nixon sees it on is crime. The argument that he makes the warren court has made to many decisions in favor of the rights of criminals and this is created dangerous situations for society as a whole. It is an example of a tv ad that nixon runs in 1968 on the issue a crime. Its a cleverly construc÷y÷ had. As we will see, theres only one person in this at. Were left to imagine who the person pursuing this woman actually is. G United States have almost doubled in recent years. Today, a Violent Crime is committed every 60 seconds. A robbery every two and a half minutes. A mugging every six minutes. A murder every 43 minutes, and it will get worse and unless we take the offensive. Freedom from fear is a basic right of every american. We must restore it. The actual text video that had does not appeal to racial sentiments at all. We see a woman walking down the street. If youre viewer in 1968 and you happen to imagine that an African American man is following that women, well that might be just whats in your mind. Its not whats nixon says. Its possible deniability on the issue of race. Hes not stimulating a backlash sentiment, hes talking a lot about crime and is there seems to be an emphasis on the idea that African Americans are criminal, but he doesnt really push the issue in a way that wallace does. Yes there is a lot of overt racist rhetoric that you see from wallace. These are perfectly accurate figures. In the late sixties in early seventies there is a crime wave. There are riots in most urban areas starting in 64 continuing to 68, every summer there are major riots. One time in new york, one time in l. A. In newark in rochester new york. Nixon is not inventing the crime issue. But the answer that he is giving is a kind of simplistic answer. Do you know how that compares to now . The crime is that a historic low. Well talk more about this when we get to the eighties and nineties. Violent crime rate is way way down from the sixties and seventies the severity of these crimes have increased because of the power of weapons have increased. Murderers down, armed robberies down, bookings are done. Theres a period that is a much more dangerous period if you want to use that. Nixon is not inventing the issue. Hes presenting a particular frame on the issue. Did it cause a problem . The other policy backdrop here is that after the assassination of king and the assassination of robert kennedy, Congress Pass is a crime control act. The primary thrust of this act is a gun control measure. Fairly weak and control measure but nonetheless. From nixon standpoint, the underlying argument is johnson and liberals in washington are interested not in protecting women walking down the street, their interest in protecting or taking away or limiting the rights of guns for americans nixon overwhelmingly winds. Johnson in 1968 had carried 44 of 50 states. By 1968 nixon sweep the country. All that carries a couple states in the south, the only ones home precarious texas. All of this is going on, johnson is still trying to come up with a scheme to put a replacement on the Supreme Court. And what he thinks is a possibility, is to use the recess appointments powers. Very obscure constitutional clause that was commonly used in the 19th century, but it started to fall out of fashion in the 20th century that 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. So it johnson is thinking in late october, early november 60, before this vote, maybe what i will do well congress is in recess i will name a recess appointment as chief justice. Its not gonna be fortas wrong and come up with this complicated scheme for two for one replacement. A name a liberal. The liberaly sees is on is arthur goldberg. The former justice the a driven out of the Supreme Court and 65. The hope was if he named goldberg as a recess appointment, and goldberg was in place when nixon was president , nixon might be somehow pressure to nominate goldberg for a full term. The chance of that happening were not high. Nixon figures out what hes doing, so almost immediately after nixon wins the election, nixon issues a Public Statement inviting earl warren to remain in place for the remainder of the term. Basically saying he doesnt want to recess appointment. Johnson concedes to game is up. He calls warren saying this complain about the situation. Like his conversation with fortas its quite an improper call. Theyre coming up with a scheme to replace him. This conversation is from november in 68 is the last time that lbj thinks of the possibility of a Supreme Court nominee. Well, the press will be asking us what right does nixon have we will not name anyone. That leaves me in a bad shape with goldberg. We have set to goldberg is this. I have told people of talking to me on his behalf a i dont think you could get confirmed, i think would be tragic for his life. And be if there was evidence that i was wrong, i would certainly want to preserve the court if i could. I would certainly regard him as a good appointment. Thats my problem with him. I dont think theres much chance but i pray hes not gonna understand what is happened here. Hes gonna be thinking ive been playing and knowing all the time thats not happening. I hope you will explain to him what did take place. Again a typical johnson call. The other person does not really get in much. Warren gets the message, he calls goldberg look we track for this recess appointment didnt work out. All remain in place for the remainder of the term, he finally resigns in june of 1969. Ill which point nixon dominates this man here warn burger, fairly conservative judge from the eighth circuit. Which is based in the midwest. It is based in minnesota we replace a quite liberal, chief justice but they fairly conservative chief justice. That creates a more conservative court. But this is only nixons first appointment. He will get to make for Supreme Court appointments, all in his first term. A significant turnover. The second is an unexpected one. Justice fortas. One of the great ironies is that johnson by trying to name or promote fortas to social justice to chief justice paves the way for fortas collapsed entirely and be removed from the court. In late 68 public has been exposed to this idea that fortas is a little ethically challenged. We have the 15,000 dollar deal unAmerican University, hes consulting with lbj inappropriately. This guy was not a paragon of ethics. The press starts looking into fortas background. Fortas it was a very high price lawyer before he went on to the Supreme Court. Being a Public Servant cost fortas a decent amount in terms of finances, his friends will try to prop him up. In 1969 it comes out that fortas had been accepting a retainer. Every year. 20,000 dollar payment from a financier named wilson who is under criminal investigation. Generally for those who are planning careers as Supreme Court justices, its not a good idea to be accepting an annual payment from someone undergoing a criminal investigation. The irony this probably would have never come out but for the fact that the press had been prompted to look into fortas as a result of the 1968 fight. He starts next and starts sending out rumors that if if he does not resign republicans and democrats will impeach him, it seems possible that he wouldve been removed from office. Certainly with a very difficult fight. He concludes that the integrity of the court is such i need to resign and summer of 69 fortas steps down. He gets a wholly unexpected vacancy. This is a guy who was appointed in 1965, who everyone would stay in the court through the 1970s, and now is out after four years. Nixon goes to the Justice Department. In 1968 nixon had used the southern strategy. This idea of approaching racial backlash as a way of getting southern votes. But let me go back to the map. Nixon doesnt carry some southern states. Texas to humphrey he loses, and from arkansas, Louisiana Mississippi in georgia to george walsh he loses. So nixons advisers say look, why dont we try to use this vacant Supreme Court appointment as a way of appealing to southern voters. If they appeal to the republican already, the warren court was not popular in the south. So if they get a southern conservative out of the court, nixon believes that will be a way of bolstering southern support. And there seems to be quite a good judge from North Carolina on a fourth circuit, which is an Appellate Court in the midatlantic states, named climate clearance hands worth. Conservative judge, very pro business, very popular among North Carolina republican types. Republican nominee at a time when there were not Many Republican judges in the south. Remember the south a basically been a one Party Democratic state area. The problem was that 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 embittered by what happened to abe fortas in 1968 decide they are gonna fight against haynesworth. Ted kennedy, democratic senator from massachusetts, a very youngnk he been elected to the senate ina his brother had once occupied. Kennedy is named to the Judiciary Committee, becomes a prominent figure on civil rights issues, one of the democrats for civil rights issues during the sixties. Birch by, his son will later be a senator from indiana, governor as well from indiana. By served three terms from indiana, which is a very conservative state that in a. He was narrowly elected in 62, narrowly reelected in 60, eight narrowly reelected in 74, and finally gets crushed in 1980 by dunn died quail, who later pops up his george h. W. Bush is vice president. But by was a very freethinker, even though he was a conservative state, he basically took liberal can can positions. He was an activist on constitutional issues, and he is critical of haynesworth as well. So when haynesworth gets on the court, the result will be a string of anticivil rights decisions. Its not the kennedy and by oppose haynesworth, that is in some ways to be expected. Its that we have all of these red dots on the roll call. These are Senate Republicans who passed votes against haynesworths confirmation. Remember, its still a time when we have common conservative republicans and liberal republicans. The last republican to get elected to the u. S. Senate for new jersey, last election was 1972, very liberal republican, more liberal than most the panic democrats. Jacob and its, the last of the new york liberal republicans, will stay on the setup for new york until 1980. Margaret chase smith, republican senator from maine, declaration of conscious against joseph mccarthy, a fairly moderate republican as well. Charles matthews, republican senator from maryland. Basically, every liberal or moderate republican in the senate, and even a couple of conservatives. Robert griffin, the guy who led the opposition to fortas. Charles bedazzle, short term interim senator from new york state, his son is now commissioner of the nfl. The father was a more prestigious figure than the sun. Goodell had been appointed as the actor of cases fascination. His opening as a full turn to be elected in 1970, so haynesworth goes down in defeat 55 to 45. And nixon is astonished. Nixon assumed that this was going to be a safe in, the board of confirmation was a oneoff. But its seen that before this happened, they change the rules of the game. The senate became more willing to look at Supreme Court nominees with a degree of skepticism as we see over the next several weeks, that pattern continues out several points in the future. So nixon at this point has two options. The first is to take a look at this roll call and to conclude that this is a dramaticallycontrolled senate, the republicans are not in the majority. There were some liberal liberal republicans, and to conclude that in that kind of senate, theres simply not the type of majority for a very conservative southern judge who might be perceived as hostile to civil rights. So nixon has to look elsewhere. That wouldve been a reasonable response to this vote. Nixon of often did not take the reasonable response to votes, and this was an occasion where he did not. He goes to his aides where he says i want another southern. Or if hes more conservative and haynesworth, that is fine. I dont particularly care, but it has to be another southerner if at all possible. So the Justice Department takes a look at Appeals Court judges from the south, the level below the Supreme Court. They dont find anyone who would be appropriate, who would be a republican, whos a southerner. And who would seem to be of a sufficient is to be in the Supreme Court. But they see it is District Court judge, the lowest level of the federal judiciary. From florida, the Northern District of florida, Jeanne Harold cars well was this mans name. They tell nixon, hes not perfect, hes not an Appeals Court judge, the traditional path for Supreme Court nominations. And this one would move from the Appeals Court to the Supreme Court. But they say he, is a republican, hes 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 cars well nomination. The first is that haynesworth did have a couple of votes that were hostile to civil rights, but there was no indication that haynesworth was racist or personally hostile to African Americans in any respect. And he would stay on the Circuit Court after his defeat for several years and was well liked by both parties. You might have liked or disliked his votes, but he was not a personal. Problem cars will on the other hand, before entering the do the judiciary had run for public office, not in florida, but in georgia. Nixons people hadnt pick this up, and in 1948, running for state legislature, he had delivered a speech saying that he was in favor of segregation forever. He disparaged the idea of racial equality for African Americans. So if haynesworth is unacceptable because of his civil right positions, cars will will be worse. But nixon pushes Senate Republicans. He says you cant let the democrats do that to us twice. He said they blocked us with haynesworth, you have to stay with me on cars will. So he nominates he hopes that the votes for cars will might make it through. But then a second problem emerges. The District Court opinions get appeal 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 . Cars well on the other hand had seen his appeals overturned at a higher ratio than any other District Court judge in the country as of 1969. And a lot of these were not cases like were cars will was making an anti civil rights decision or ideologicals decision and the court saying you cant do that. These were technical decisions where cars will seem to be not understanding the basics of the law. There quickly emerged a consensus among both parties that quite apart from his beliefs, this was a man who was not particularly smart, and whether that was a particularly good nominee to be on the Supreme Court. This becomes crystallized in senate debate. The Republican Point person is a republican senator from nebraska name senator horoscope. His argument is that the mediocre people of the United States deserve representation on the court as well. Canada, he says this is a very part to peculiar argument for a Supreme Court justice. For Senate Republicans who had been inclined to go along with nixon, even though they didnt like ours well, swallowing this as an argument, that the mediocre are entitled to representation and that was a reason to nominate car as well, that was a bridge too far, and cars will goes down to defeat by a narrow margin. 45 to 51. Cars well is gone. And if confirming the argument that critics made about his intelligence or lack thereof, cars will decides he will give up his life, tenured position on the judiciary, to run for the u. S. Senate, from florida the following year in 1970. He is absolutely certain that he will become elected and he will become a prominent figure, it doesnt even get the republican nomination, and hes never heard again in public life. At that point, nixon concludes that, were not gonna get a southern conservative in this particular environment. He goes to the Justice Department and he says get me a conservative will will be unacceptable nominee. So the Justice Department turns to harry blackmon. Close friend of harry burger. It sure is that blackmon is a conservative, and will vote on the nixon way. Hes the author of the roe v. Wade decision. By the time he leaves in the 1990s, hes the most liberal member of the Supreme Court. So as a, reminder that these battles cannot lasting impacts. The country gets blackmon, a very liberal nominee and nixons part. So nixon gets a second justice but it does not go as well as he had hoped. There are two final nixon confirmations. Both come in 1971, almost back to back. Justice John Marshall harlan the second, grandson of the great Justice Harlan falls ill in the summer of 1971, resides from the court and dies a couple of months there after. Justice hugo black, appointed to the court by fdr in the 1930s, suffers a stroke in night team 71 and dies a few weeks later. So just nixon all of us and has to vacancies. The Justice Department has found a southerner who would be acceptable. Louis powell. Hes from virginia, a conservative but establishments of the american bar association, so acceptable to senate democrats. He is easily confirmed. But nixon goes to justice and says look, what i want is a strong conservative. A principal conservative, someone will fight for cover conservative ideas on the board. That is the first obligation. But the second obligation is next and says, ideally what we would like is someone who will help us for the 1972 campaign. This is late 1971, 72 campaign is gearing up. And republican poll suggests that a particularly soft area for democrats in 1972 our northern white ethnic voters who are concerned with issues like crime, the vietnam war and what they see as the democrats being too friendly to hippies and to radical students and not concern enough with hardworkingh union builders. In particularly, ethnic voters, polish voters, irish american, italian american, in new york city and chicago, in cleveland, in detroit and all these northern areas. So nixon presses the justice find a good, conservative ethnic nominee. And the problem here is that this is a point where for the most port, democratic voters tempt catholic voters tended to be democrat. Dwight eisenhower had nominated a day a catholic in some mixing gets on the phone to sort of press the Justice Department here is john mitchell, attorney general to see if there is an alternative summit will be very conservative but might satisfy ethnic political design. Now the other thing, can i heard you [inaudible] oh cry snow, thats what i mean. [inaudible] [inaudible] you [inaudible] politically i got a lot more than a catholic. The protestants, if hes a conservative a catholic conservative is better than a protestant conservative. The point is it all mean more to the Catholic Senate will to the protestants. The protestants expect him the catholics dont. [inaudible] you know when i know there arent any. Never. This is not a reassuring conversation about an administration thats looking for high qualifications to the Court Justice does to diligence theres no rehnquist is selected. Now is four nominees, one of the most closely. Conservative, hes very smart, come to the washington in the 1960s. Will remain on through the bush two years. Eventually it will be elevated chief justice by reagan. Will be encountering him over and over again. Transformation of court. From a very liberal closely divided court with a strong conservative in rehnquist, and chief justice and burger moderate conservative in powell. Black men will become liberal, although black man in the seventies is more centrist and centerright. Liberals discover is they had assumed in the sixties that they control the court for another generation in the court could issue a series of decisions that would protect individual rights regardless of what the public said, if you cant control the court you cant rely on that. Look next time liberal struggle wednesday no longer have the court to figure out a way to advance their cause politically. Any questions from this material . Things are not clear. Lets go back to the southern strategy. Where they predicted once they passed the civil rights bill they would lose the south for 100 years. Was that an open discussion or did he think that privately . Thats a conversation it seems this is a rare conversation that wasnt recorded he never said it publicly. When johnson does especially in the 64 election, continuing to 66 is to try to come up with a new southern coalition. He assumes correctly. That democrats are going to struggle with white rural southerners. Most of these people were critical of the Civil Rights Movement in the 1960s, these are people who voted for wallace and 68 and theyll vote overwhelmingly for nixon in 1972. George mcgovern was the democratic governor doesnt get 25 of the vote and louisiana and mississippi and alabama. But johnson does not think it is impossible that the south will remain democratic. That is hoping for is to create a new coalition of African Americans, who now have the right to vote. He wants them to register and get out to vote, and urban better educated whites. Especially from places like atlanta, or charlotte or new orleans, or Austin San Antonio and dallas. Houston in texas who he thinks they might be moderate pro business, he thinks theyll be open. That is the coalition to some extent started to form in the last few years. Especially in a place like virginia North Carolina. In the late sixties and seventies, that Coalition Never quite forms will talk about the civil war next time in part because urban conservatives white conservatives are just conservative. But also because there are tensions within this movement in the south. Especially over issues around public schools. Where African Americans in the south are saying we want to get integrated schools. We have to have busing to achieve that, for now busing to achieve that. We have well educated urban whites in the south saying we want tickets to go to good schools, we dont want them bust halfway across town. Turns out that johnsons hope that he might be able to create a narrow majority of whites and blacks to compensate for civil rights does not come into fruition. If johnson would have been able to run in 68, he probably wouldve been a stronger candidate than im free. Might i carried a few southern states. The democrats are on their way out of the south. The only democrats who do anything in the south after lbj jimmy carter in 1976, and bill clinton in 1992. These are both white, democratic governors from the south. They are both running a typical atypically here. So we saw a lot of clips today from the phone calls and everything, but we know the well i messed up, why did you give me this. The controversy around the nixon recordings. I was unaware that lbj was recording his phone calls as well. There any backlash to that as as well . Maybe not the nixon extent. This was wholly unknown. Kennedy johnson and nixon with the three president s who extensively record. These are brilliant political minds. Neither kennedy nor johnson or nixon realized they are creating a record that could be subpoenaed. At this time, this is prewatergate these are the president s personal property to do with as they saw fit. In theory nixon couldve destroyed the tapes. When johnson was taping for, can be taped for historical prosperity. When he was the records to serve as the basis for his memoirs. Johnson recorded because johnson did deals on the phone. He was basically wanted commitments from people. You want to record in case people went back on him with his deals, you could say you told me on september 22nd youre gonna be with me. Have a recording of this. No one else knew. When the watergate hearings break, in the nixon tapes are revealed, the assumption at the time is the only person or only present we only have recorded with nixon. And they kind of sheepishly come out johnson and kennedy had also taped. Its a small amount of taping and eisenhower and roosevelt and fdr. But in significant amounts. For our purposes, these are incredible historical sources. They bring us inside the oval office. Theyre not to tape after nixon because they understand they could be subpoenaed. You can imagine other technologies. Email in the late eighties and early nineties during the Bush Administration did a lot with email. Its a new technology and they didnt realize they were creating a permanent record. Text messages in the clinton administration. Again this idea of creating permanent records. We have no other tape. Yeah. Would you argue that nixon was a politician first and a president second . Based on this argument it seems like he was trying to find out how could i get elected next . Nixon is a Foreign Policy president. His goal is to deal with Foreign Policy issues. In his mind, domestic matters the goal of a domestic matters to get him reelected. You have done deals like this with domestic actors on china or the soviet union. That he cares about. Whos on the Supreme Court, he does in particular care as long and itll serve his political purpose. Thats the pattern you see with nixon on a whole bunch of domestic issues. Not just the Supreme Court. Its an interesting to see the whole chief justice the sitting justice being able to have a conversation about, hes basically being slayed in his decision. It goes back to hamilton as well, what he expects is judges to be, they go to the far left. This is highly inappropriate behavior. Fortas should not be having private conversations with lbj. Rehnquist should not be cooperating with nixon. Rehnquist that is recuse himself. You have to assume that these kind of conversations occurred with truman and fdr and probably with eisenhower. We just dont have recordings of these conversations. To some extent, we have moved towards a more ethical Supreme Court. Its highly unlikely for instance, in 2015 kagan would head off to the oval office and chat with obama. She recognizes that would be improper. Neither fortas or johnson see anything wrong with this kind of conduct in the 1960s. You have to assume lets say there was a constitutional challenge to a johnson bill, could any of us really be confident that fortas would look at that dispassionately and say this is unconstitutional moment of vote against lbj even though i really like him . It does raise questions of partiality. This then comes down tumbling down this idea of judicial ethics next time with watergate. Because it isnt a cup of the midterms are up front. Lr7 ÷ weeknights this month, were featuring American History tv programs as a prove you as what is available every weekend on cspan 3. Tuesday night, we look at ronald reagan. University of Central Arkansas historian marcus which are looks back at conservative criticism of president reagan Foreign Policy for the soviet union. And explains how its criticism was downplayed in later decades as conservatives thought to reimagine their relationship with the 40th president. Watch tuesday beginning at 8 pm eastern and enjoy American History tv every weekend on cspan 3. Next on real america, president Lyndon Johnson gives an Oval Office Address to the american people. To announce the formation of a National Advisory commission on civil disorders. To investigate the causes of uprisings in many cities that summer. He also outlined his