Josh Zeitz has taught American history and politics at Cambridge University and Princeton University and is the author of Lincoln’s Boys: John Hay, John Nicolay, and the War for Lincoln's Image. He is currently writing a book on the making of Lyndon Johnson’s Great Society. Follow him @joshuamzeitz.

In June 1968, an election year, Chief Justice Earl Warren announced that he’d be retiring from the Supreme Court, and President Lyndon Johnson moved to elevate Associate Justice Abe Fortas, a longtime friend and ally, to the top spot. But a coalition of conservative Republicans and Southern Democrats blocked Fortas’ rise. He remained associate justice, and a new chief justice wasn’t appointed until President Richard Nixon took office the following year.

In the wake of Justice Antonin Scalia’s death, many in the media have seized on the Fortas case—claiming that it’s clear precedent for a hostile Congress to thwart the Supreme Court nominee President Barack Obama will pick sometime over the next few weeks. Republicans—including many presidential candidates—claim they won’t support Obama’s choice because a president in his last year should leave the nominating to his successor. “The next election needs to be a referendum on the Court,” said Sen. Ted Cruz.


But if Republicans are looking to 1968 for a precedent in this case, they might want to think twice. Sure, there are certainly parallels, but a deeper look at the Fortas story suggests that it might not be a precedent Republicans would want to revisit. First of all, the conservatives who opposed Fortas’ elevation to chief justice understood very well that LBJ had every a right to put forward a nomination in his last year in office. In fact the Senate held swift confirmation hearings for Fortas. In 1968, LBJ’s opponents were animated not so much by constitutional concerns as by politics—and race. Opposition to Fortas flowed directly from his liberalism and support for civil rights, and indirectly from his Judaism. It turns out Fortas was a deeply flawed nominee for other reasons, but historians remember the circumstances by which he was blocked for exactly what they were—reasons that were, for the most part, far from honorable.

And then there’s another thing for the GOP to consider: In blocking Abe Fortas, conservatives might have derived immediate satisfaction. But liberals made them pay for it in due time.

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Abe Fortas and Lyndon Johnson first met in 1938, when both were ambitious, young New Dealers. As LBJ rose to prominence as Senate majority leader and, later, as vice president, Fortas served as an informal legal and political adviser. That relationship only intensified after Johnson moved into the Oval Office. When LBJ’s longtime chief of staff, Walter Jenkins, was arrested on charges of lewd behavior weeks before the 1964 election, the president turned to Fortas and Clark Clifford, another D.C. fixer of long standing, to try to squash the story, as well as the charges. (It didn’t work.) Fortas edited major presidential addresses and provided counsel on the formation of Great Society legislation. He enjoyed unfettered access to Johnson and, along with Clifford and Jim Rowe, comprised the core of the president’s kitchen cabinet.

Even as he built a lucrative practice representing clients in the private sector, Fortas remained a committed advocate of liberal reform. In 1963 he provided pro bono representation to Clarence Gideon, a Florida man who had been convicted of a pool hall burglary two years earlier. Appearing before the U.S. Supreme Court, Fortas argued that Gideon—who had been too poor to afford a lawyer at his original trial—had been denied due process rights. The resulting opinion in Gideon v. Wainwright established the fundamental right to counsel.

LBJ tried on several occasions to convince his friend to accept a cabinet appointment, but Fortas was averse to abandoning his law practice during peak earning years, and his wife, Carol Agger—a prominent tax attorney in her own right—was obdurately opposed to the idea.

Applying the famous “Johnson Treatment,” in 1965 LBJ finally coaxed his friend into accepting an appointment as associate justice of the Supreme Court, where he filled the so-called “Jewish seat” previously held in backwards succession by Arthur Goldberg, Felix Frankfurter and Benjamin Cardozo. Over the next two and a half years, Fortas contributed to building on the Warren Court’s sizable legacy of liberal jurisprudence, including rulings on civil rights, privacy rights and the rights of the accused that infuriated conservatives of both parties who were already unnerved by LBJ’s expansion of the federal welfare state and desegregation of Southern schools, hospitals and places of public accommodation.

In June 1968, some three months after LBJ shook the political establishment by announcing his decision not to seek re-nomination, Chief Justice Earl Warren—fearing that Richard Nixon might win the White House—conveyed to the president his decision to retire. “Johnson saw the court as a means of perpetuating his social reform, particularly racial justice,” recalled domestic policy adviser Joe Califano, years after the fact. “He also wanted the Court to uphold the compromise he had reached with Catholics on funds for parochial schools, as well as his consumer, health, and environmental legislation.” The president expected that all of these issues would “play out in the courts long after he left the White House, and he intended to win them as well after he had gone.”

The plan called for elevating Fortas to chief justice and filling the vacant seat with Homer Thornberry, an appellate court judge, former Texas congressman and longtime Johnson ally. The president anticipated strong conservative opposition to Fortas on two counts: his liberalism, particularly on matters related to race, and his religion. Ignoring the advice of Clark Clifford, who warned that the conservative bloc would never confirm a liberal Jew to the chief justiceship, the president doubled down.

From the start, it all went wrong. Democratic Sen. Robert Byrd of West Virginia, a former Klansman who filibustered the Civil Rights Act in 1964, pledged to do “everything in my power” to oppose the “leftist” Abe Fortas. Russell Long of Louisiana, another segregation stalwart, denounced the nominee as one of the “dirty five” who sought to expand the rights of the accused. James Eastland of Mississippi, an ardent racist and chairman of the Senate Judiciary Committee, told the president that he had “never seen so much feeling against a man as against Fortas.” He might have been thinking in part of his colleague, John McClellan of Arkansas, who ironically wanted that “SOB formally submitted to the Senate” so that he could take the fight public.

As a longtime intimate and former member in good standing of the Southern Democratic caucus, Johnson was firmly convinced that much of its opposition to Fortas stemmed from a toxic blend of anti-Semitism and racism. He urged the president of the American Bar Association to denounce the injection of religious bigotry into a court nomination battle and instructed White House staff to enlist prominent rabbis to lobby senators from states with large Jewish constituencies. With notable Republicans like Robert Griffin of Michigan also in the opposition camp, the White House activated key industrialists including Henry Ford II and Paul Austin, the president of Coca Cola, to apply pressure where needed.

Matters came to a head when Fortas appeared before the Senate Judiciary Committee for his confirmation hearings. Though a skilled litigator and no stranger to bare-knuckle politics, he was unprepared for the force of opposition with which his nomination met.

Committee members relentlessly attacked Fortas for his role in shaping key Court decisions that liberalized criminal rights and public obscenity laws—proxy issues in the broader political debate over race, poverty and counter-culture. In the face of such hostile charges, the nominee was left in a frustrating position; as a sitting member of the Court, he was compelled by tradition to demur on questions concerning past and pending court rulings.

Today’s Republicans consider as binding the so-called “Thurmond Rule”—a vague, non-statutory, largely undocumented position associated with exactly one former United States senator (Strom Thurmond), whom they claim opposed Fortas’ nomination on the grounds that LBJ was a lame-duck president. In fact, presidents don’t become lame ducks until their successors are chosen, and in 1968, Thurmond participated wholeheartedly in the nominee’s confirmation process. Like other conservatives, Thurmond opposed Fortas for a great many reasons that had nothing to do with the president’s right to nominate him and everything to do with resentment over the Warren Court’s liberal leaning and a rearguard defense of “states rights,” a term that was still freighted with ugly and unmistakable meaning in 1968.



By 1968, most conservatives understood that it was no longer practicable to denounce a nominee for his religion or his affirmative civil rights position. Instead, they hammered the sitting associate justice for mixing his roles as jurist and presidential adviser and thereby eroding the Court’s independence. Fortas anticipated this criticism and replied that “the history of this Republic is replete with shining examples of a close relationship between a president and a justice of the Supreme Court.” In particular, he cited John Jay, who “offered George Washington the benefit of his wisdom on a variety of political problems,” and Chief Justice Fred Vinson and Associate Justice Sherman Minton, who the committee members knew very well had continued to serve Harry Truman as an informal adviser after each had ascended to the Court (after all, some members had served in the House with Vinson or the Senate with Minton). To that list, Fortas may as well have added Felix Frankfurter, who, as virtually every senator understood, remained a close adviser to FDR after joining the Court, or William O. Douglas, who dabbled conspicuously with politics and even considered running for president from the bench.

Indeed, the impropriety of a justice serving as an informal presidential adviser was not as much a matter of consensus in 1968 as it is today. Still, Fortas greatly downplayed his proximity and access to LBJ in his hearings, so much so that Joseph Califano, a top White House aide, later recalled that his “testimony was so misleading and deceptive that those of us who were aware of his relationship with Johnson winced with each new report of his appearance before the Senate committee.” The Senate didn’t know that, like senior White House advisers including Bill Moyers, Jack Valenti and Marvin Watson, Fortas had a direct White House line installed in his home and office, enabling the president to reach him at all times of the day. And reach him, LBJ did. Between November 23, 1963 and July 2, 1968, Fortas and LBJ met at least 145 times in person and spoke on countless occasions by phone. Years later, historians discovered that as associate justice, Fortas violated a bright red line when he knowingly shared important information with the president concerning court deliberations. Committee members knew that the president and his nominee were close, but few had any idea quite how close. It would take years of oral histories and archival work to establish the full extent of the Johnson-Fortas association.

It was clear that the president’s allies would struggle to secure the 66 votes needed to break a filibuster. Their odds grew narrower when the committee learned that Fortas had accepted a payment of $15,000—equal to 40 percent of his government salary—to teach a seminar at American University, and that the funds associated with his lectureship had been provided by a private donor. Though not an explicit ethics violation, the revelation crystalized opposition to his appointment. The Judiciary Committee ultimately sent Fortas’ nomination to the full Senate by a vote of 11 to 6, but supporters failed to achieve cloture by a vote of 45 to 43.

Fortas returned to the Court as an associate justice; Thornberry remained on the appellate court; and Earl Warren delayed his retirement until 1969, when Richard Nixon nominated, and the Senate confirmed, Warren E. Burger as the new chief justice.

But more trouble loomed for Abe Fortas. In 1969, it emerged that, during his first year on the Court, he had entered into a legal engagement on behalf of the family foundation of a Wall Street banker who was now under federal indictment for securities fraud. The unusual arrangement came with a $20,000 annual retainer for life. Although justices then and now have accepted outside income in the form of lecture honoraria and book royalties, Fortas’ employment raised the possibility that he intended to intervene on the behalf of a wealthy benefactor. Facing the probability of impeachment hearings, he resigned from the Court and returned to private practice.

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Though they ultimately prevailed in naming their own chief justice, all did not end well for Senate conservatives. To fill the vacancy created by Fortas’ resignation, Nixon appointed Clement Haynsworth Jr., a judge on the Fourth Circuit Court. A native of Greenville, South Carolina, Haynsworth had a poor record on civil rights and judicial ethics, which led Northern Democrats and moderate Republicans in the Senate to join in shooting down his nomination. In no small way, they were delivering payback for what the conservative coalition had done to Abe Fortas.

In return, Nixon instructed his Southern political strategist, Harry Dent, to “go out this time and find a good federal judge even further south and further to the right.” Dent obliged, and in January 1970 Nixon named Judge Harold Carswell to the vacancy. As a candidate for the Georgia state legislature in 1948, Carswell had asserted that the “segregation of the races is proper and the only practical and correct way of life. … I have always so believed and shall always so act.” If that were not enough, he was seriously deficient as a federal judge: He had a reversal rate of 40 percent, which led 200 former Supreme Court clerks, including Dean Acheson, to protest his selection.

Bryce Harlow, Nixon’s legislative director, noted that many senators viewed Carswell as “a boob, a dummy. And what counter is there to that? He is.” The best that Republicans could muster was Nebraska Sen. Roman Hruska’s plea—“even if [Carswell] were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Frankfurters and Cardozos and stuff like that there.” Conveniently, he named three Jewish justices.

In the end, the Senate rejected Carswell’s nomination. From the date of Fortas’ resignation, the seat stood vacant for 13 months until Nixon nominated a compromise candidate, Harry Blackmun. Blackmun, in turn, went on to pen the court’s decision in Roe v Wade.

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If the current Republican majority wishes to cite the example of Abe Fortas as precedent for denying an outgoing president the right to fill a vacant seat on the Supreme Court, they should do so under strong advisement.

First, Fortas’ opponents did not deny the right of an outgoing chief executive to fill a vacant seat. In so doing, today’s Republicans are inventing a new precedent, not adhering to an old one.

Second, the Senate Judiciary Committee swiftly held confirmation hearings for Fortas and sent his nomination to the floor; there is no modern precedent for the Senate’s refusal to take any action—not in 1916, when Woodrow Wilson appointed and the Senate confirmed both Louis Brandeis and John Clarke in an election year; not in 1932, when Herbert Hoover nominated Cardozo; not in 1940, when FDR nominated Murphy; not in 1968, and not in 1988, when the Senate Democratic majority confirmed the appointment of Anthony Kennedy with only 11 months left in Ronald Reagan’s term.

Third, though Abe Fortas was an imperfect nominee, at the time, few senators knew the full extent of his relationship with LBJ or of his extra-governmental consulting. Historians today credit his failure to earn confirmation to a venomous combination of racism, anti-Semitism and obstructionism. That’s one way to go down in the annals of history, though not the best way to earn the esteem of one’s grandchildren.

Fourth, when liberals had a chance to repay the favor, they seized it. Fortas’ seat sat vacant for over a year, and ultimately, Nixon was compelled to place a moderate jurist on the bench. That jurist, in turn, delivered the modern conservative movement one of its greatest blows.

The object lesson: Be careful what you wish for.