Forgotten History

1964-Present
October 1, 1968
Filibuster Derails Supreme Court Appointment

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

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

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

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

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

On October 1, 1968, the Senate failed to invoke
cloture.
Johnson then withdrew the nomination, privately
observing
that if he had another term, "the Fortas
appointment would
have been different." Johnson did not have
another term
and Nixon went on to nominate Judge Burger for
the court.
So it is rare that there is a filibuster but if
it happens
there have been others.

Reference Items:

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

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

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