Ask the author: “So Long, Earl”

The following is a series of questions prompted by the forthcoming publication of Michael Bobelian’s “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court” (Schaffner Press, 2019). As Bobelian reports, soon after President Lyndon Johnson nominated Justice Abe Fortas to replace Chief Justice Earl Warren, Fortas’ clerks began taking over some of the chief justice’s administrative tasks. Their confidence proved misplaced, as Fortas was forced to withdraw from consideration after opponents filibustered the nomination. “Unbeknownst to anyone at the time,” Bobelian continues, “the Fortas nomination would turn out to be the turning point of a historic transformation that revolutionized the confirmation process and the launching point for the conservative takeover of the Court.” Bobelian’s narrative gives a detailed account of the “monumental clashes over the Warren Court that pitted its greatest champions against its most vengeful enemies.”

Welcome, Michael, and thank you for participating in this question-and-answer exchange.

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“Have you got any candidates?”
“No, Mr. President, that’s your problem.”
“What do you think of Abe Fortas?”
“I think Abe would be a good Chief Justice.”
— President Lyndon Johnson and Chief Justice Earl Warren, Oval Office, June 13, 1968

QUESTION: Your subtitle refers to the “modern” Supreme Court. To provide some context for readers about the thrust of your narrative, could you differentiate today’s court from the pre-1968 institution?

BOBELIAN: Thank you, Andrew, for having me on SCOTUSblog. I’m looking forward to the discussion.

The Supreme Court has always been a political body. Chief Justice John Marshall’s tenure and the long reign of justices during the “Lochner Era” are a testament to this reality. But something has undoubtedly changed over the past 50 years. The court has become far more politicized, partisan and ideologically driven in that time period.

This trend is reflected in the nominees of the past 50 years compared to these earlier epochs. In 1910, William Howard Taft, a Republican, nominated two Democrats to the court. Harry Truman picked Harold Burton, a Republican, along with three centrists to the court who didn’t reflect the growing liberalism of the Democratic Party. Dwight Eisenhower picked two liberal titans — Earl Warren and William Brennan. John Kennedy selected Byron White, another centrist.

From today’s vantage point, these selections seem befuddling.

The fact is that presidents didn’t scrutinize potential nominees down to the granular level the way we do today. Ideological litmus tests were rare and the impact of a potential nominee on the ideological breakdown of the court wasn’t the type of calculation presidents obsessed over during most of the nation’s history.

The Senate, the media and special interest groups were far more cavalier as well. The Senate regularly confirmed nominees in days and weeks — not months — often without a hearing, and usually by voice vote.

Eisenhower’s recess appointment of William Brennan in October 1956 exemplified this outlook. Though the appointment came weeks before the election, Democratic senators didn’t cry foul or accuse Eisenhower of trying to circumvent the Senate. Imagine a president trying to fill up a court seat through a recess appointment in 2019. That would instigate a constitutional crisis.

After 1968, the Senate was far less willing to rubber-stamp a controversial or ideologically extreme nominee, especially if it was facing off against a weakened president. From 1894 to 1967, the Senate rejected only one of 46 nominees. The post-1968 failure rate (including withdrawn nominees like Harriet Miers and Douglas Ginsburg) is significantly higher.

Those are two ways in which the “modern” court differs from previous eras.

The types of people appointed to the court have also changed.

When Earl Warren became chief justice in 1953, only one of the justices had served as a judge before joining the court. Unlike today, many of the justices were former senators, cabinet officials or governors. Because Warren was repeatedly criticized for not having prior judicial experience, that became an unspoken requirement going forward. Since 1968, only three justices — Lewis Powell, William Rehnquist and Elena Kagan — have lacked judicial experience prior to joining the court.

Before 1968, justices were often close associates of presidents. A few years after appointing William Douglas, FDR nearly picked the justice, his poker partner, to be his running mate in 1944. Truman named cabinet officials and friends from his Senate days. Kennedy appointed a campaign manager and a cabinet secretary. Fortas was Johnson’s friend and close advisor. Because this close affiliation was heavily criticized, later presidents steered clear of nominating confidants and allies.

Finally, justices of earlier eras certainly carried political agendas and biases, so I don’t want to characterize today’s court as something that represents a complete break from the past. It’s clear, however, that the court of the past few decades has become more partisan and ideologically minded. Scholars have shown that centrists have disappeared from the court. Democratic presidents are generally selecting more liberal justices; Republicans are appointing more conservative ones.

To me, all of these changes together constitute the “modern” Supreme Court.

QUESTION: Your prologue opens in July 1968 with Fortas sitting down for the third day of his confirmation hearing for promotion to chief justice. Why do you choose to begin at this point?

BOBELIAN: The Fortas confirmation fight in 1968 was a monumental event in the history of the court, yet it has largely been forgotten. Considering the stakes involved, I wanted to start with some fireworks and this scene definitely fit the bill. Between the jousts Fortas had with the senators, the tirades directed at him by members of the Judiciary Committee, and the unprecedented and unorthodox tactics deployed against him, the opening scene encapsulated both the themes and tenor of the book.

It also allowed me to introduce some of the main rivals in the story — Fortas, Lyndon Johnson, Strom Thurmond, James Eastland, etc. — to readers and to quickly present my central themes. Finally, that moment in the story symbolized some of the unique features of Fortas’ nomination and what set it apart from its predecessors. The interrogation he endured — which at times progressed more like an arraignment than a question-and-answer session — was like nothing the nation had seen before.

From a storytelling perspective, there were plenty of dramatic moments to pick from to begin the book. This happened to be the most dramatic — and most telling — of them all.

QUESTION: As you detail, Johnson knew that resistance to Fortas was brewing in the Senate before the official nomination. Why was Johnson, the “Master of the Senate,” so determined to nominate Fortas?

BOBELIAN: Johnson selected Fortas because he was his close friend, a brilliant lawyer, and a liberal jurist who would both perpetuate the Warren Court’s jurisprudential legacy and safeguard Johnson’s legislative accomplishments from constitutional scrutiny. He suspected that with a Republican likely to get elected in November 1968, this was the last chance to ensure liberal control of the court for many years to come. Johnson remembered how a conservative court struck down key features of the New Deal. He didn’t want his legacy — the civil rights bills along with the Great Society — torn apart by a conservative court.

QUESTION: In your section on Richard Nixon’s 1968 presidential campaign, you write that “[n]o presidential candidate other than [Sen. Barry] Goldwater had so closely tied his candidacy to the selection of justices.” Goldwater lost to Johnson in a landslide. What made Nixon’s result different?

BOBELIAN: Nixon was a better candidate in 1968 than Goldwater four years earlier. Goldwater’s blunt statements frightened a lot of Americans, while Nixon’s carefully crafted persona as a sensible and reliable conservative made him more appealing than Goldwater to centrists and liberal Republicans (who did exist at the time).

The bigger difference in Nixon’s favor was that liberalism had reached its ascendancy in the mid-1960s. Johnson trounced Goldwater in the 1964 presidential election; Democrats captured 37 seats in the House and two in the Senate, bringing their Senate total to 68. Under the circumstances, even a politician far defter than Goldwater probably would have lost to Johnson in 1964.

By 1968, the Vietnam War, endless riots, the rise of crime, and the omnipresent tumult of the era turned off many Americans from the Democratic Party. Nixon was able to benefit from this shift in voter sentiment.

Vowing to appoint “strict constructionists” who would undo the Warren Court’s liberal jurisprudence, Nixon successfully incorporated attacks on the Warren Court into his campaign.

In trying to woo southern voters — through what was called his “Southern Strategy” — Nixon promised to appoint justices who would be more amenable to their interests. This convinced Strom Thurmond, the Republican kingmaker in the South, to put his entire weight behind the candidate, helping Nixon secure the nomination at the 1968 GOP convention.

Nixon doubled down on the Southern Strategy during the general election, capturing six southern states compared to one for Democrat Hubert Humphrey.

The court wasn’t the only issue white southern voters cared about, but it was at the top their list.

QUESTION: “Neither of the two most contentious nominations of the twentieth century prior to Fortas—Louis Brandeis’s drawn-out confirmation in 1916 and John Parker’s rejection in 1930—had left a lasting imprint,” as you write. “In both instances, all the key players in the confirmation process reverted back to their traditional roles.” What did Nixon do as president that “cemented and built upon this metamorphosis, forging a template for modern judicial politics to be fine-tuned by future generations”?

BOBELIAN: Prior to Nixon, presidents paid scant attention to the electoral ramifications of their nominations. They did take into account the court’s geographic balance by trying to appoint justices from across the country. Religious identity also played a role in the selection of justices. But the electoral considerations in past selections were only one aspect — and often very far down the list of factors — in vetting potential justices. As a result, many of the picks from the 1940s and ‘50s — Sherman Minton, Tom Clark, Fred Vinson, Charles Whittaker, Potter Stewart, John Harlan and Byron White, for instance — added little to a president’s electoral prospects. Harold Burton, a Republican appointed by Truman, was even from the opposing party.

While Johnson focused on ideology, Nixon looked at the selection of justices through an electoral lens far more than his predecessors. In order to get re-elected in 1972, Nixon continued his “Southern Strategy” during his first term. He appointed southerners to federal posts, slowed down the federal government’s integration efforts and presented a far friendlier image to the region. The biggest element of this strategy involved the Supreme Court, which had become a primary villain in the eyes of many southerners. Three of Nixon’s picks in particular — Clement Haynsworth, G. Harrold Carswell and Lewis Powell — were picked first and foremost because they were from the South.

Even when two of these nominees were defeated, Nixon used these setbacks to further curry favor with southerners. His aides repeatedly noted how the nominations boosted Nixon’s prospects in the region. Anchored by these nominations, Nixon swept the South in 1972.

It wasn’t only the southern vote that Nixon took into consideration, however. In the fall of 1971, two openings on the court came up at the same time. Though he ended up choosing Powell and Rehnquist, he considered selecting a woman and an Italian-American for one of the openings in order to attract female or Italian-American voters.

Nixon made his thinking clear during his deliberations. “In a political sense, it comes right down to cold turkey,” he told Attorney General John Mitchell. “I lean to a woman only because … we got to pick up every half a percentage point we can.”

At the end, he went in a different direction. It’s no coincidence, however, that Ronald Reagan eventually appointed Sandra Day O’Connor and Antonin Scalia to the court to the satisfaction of the two groups that had lobbied Nixon back in 1971.

Fast forward about 50 years and we saw Donald Trump providing a list of potential nominees during his campaign to appeal to certain voters. Like Nixon, Trump continued the strategy into his first term by appointing justices who would excite his base.

QUESTION: Even after Nixon, some nominees still sailed through the Senate. Scalia’s vote was 98-0. Justice Ruth Bader Ginsburg’s was 96-3. Do these examples weaken your argument?

BOBELIAN: It’s important to note that neither the president nor the Senate evolved into their current roles immediately after 1968. Most trends don’t progress in a perfect, straight-line trajectory. There were exceptions and hiccups along the way.

Johnson and Nixon and the senators they faced off against established the template for future generations. It took a couple of more decades for their successors to fully embrace the roles they established.

Future presidents made mistakes along the way: John Paul Stevens and David Souter, for instance, turned out to be far more liberal than expected.

Likewise, the Senate wasn’t as universally assertive as it is today. I can confidently state, however, that the Senate changed its standing within the confirmation process in 1968. Michigan’s Robert Griffin, one of the leading figures opposing Fortas, told his colleagues that the president “has only half the power and we have the other half, and we ought to assert ourselves.”

They certainly listened. After decades of rubber-stamping nominees, the Senate rejected Fortas and Homer Thornberry, who was nominated to take Fortas’ seat when the former became chief justice. It also rejected two of Nixon’s nominees. Since then, whenever a large number of senators have been confronted with a distasteful nominee — usually for ideological reasons — and had the numbers to prevail, they have launched a full-scale attack. Robert Bork, Clarence Thomas, Harriet Miers and the more recent candidates nominated by Barack Obama and Donald Trump personify this trend.

QUESTION: Justices and presidents are not the only powerful public figures in your narrative. Key senators also waged war, including Thurmond. Because the final day of Justice Brett Kavanaugh’s confirmation hearing happened in the Dirksen Senate Office Building, one senator whose role interested me was Republican Minority Leader Sen. Everett Dirksen of Illinois.

Could one say this battle forged a “modern” Senate in a similar way that it did the court?

BOBELIAN: Yes and no. The Senate was a far more bipartisan and collegial institution back then. In my research, I found many instances of political rivals being personal friends and working across party lines. Johnson and Dirksen exemplified this reality. When Johnson was Senate majority leader, he had a close working relationship with Dirksen. They publicly praised each other and shared drinks on a regular basis. That friendship continued into Johnson’s presidency.

Imagine Barack Obama regularly dining with Mitch McConnell or Donald Trump chumming around with Chuck Schumer. Those relationships would be inconceivable today.

In some ways, the Fortas confirmation fight contributed to the eventual breakdown of that old order. Younger senators such as Griffin resented Dirksen’s cozy ties with Johnson. And Senate liberals, infuriated by the attacks upon Fortas, exacted their revenge on Nixon’s nominees.

But I don’t want to overstate the long-term impact on the Senate of the events that took place in 1968. I think that changes in the nation’s demographics, how campaigns are financed and the ideological purification of the parties — all fueled by a divisive press — played a far bigger role in forging the “modern” Senate than anything that took place in 1968.

QUESTION: In your preface, you acknowledge a “widely-held impression that [Bork’s] experience established a new paradigm for Supreme Court nominations, giving birth to the term ‘Borked’ to describe the unorthodox tactics used to defeat him.” However, in your discussion of Bork’s nomination, you write that “the parallels between the two aborted nominations were clear to anyone who was witness to both historic battles.” For example, multiple Democratic senators invoked Thurmond’s 1968 words against Fortas’ confirmation in their arguments against Bork’s.

Why did the “widely-held impression” develop around Bork more than around Fortas?

BOBELIAN: That’s a great question and the answer remains clouded in mystery. I think the primary reason that Bork is remembered far more than Fortas is that Fortas’ demise took place in 1968, a year bursting with enough drama to generate a film festival worth of documentaries. Weeks into the new year, the Tet Offensive demolished the prevailing notion of impending victory in Vietnam. Before the shock wore off, Johnson did the unthinkable — declining to run for re-election. Less than a week later, on April 4, an assassin’s bullet silenced the most iconic spokesman of the civil rights movement. Dr. Martin Luther King Jr.’s death ignited riots in more than 100 cities, subsuming a dozen of them in fire and mayhem, which even for a decade of unparalleled turmoil surpassed all previous conflagrations. Another gunman murdered Robert Kennedy two months later. The summer of carnage continued at the Democratic convention in Chicago and the bombshells continued into the election. Running on a platform of segregation, economic populism and tough-on-crime rhetoric, George Wallace captured the most electoral votes for a third-party candidate since Theodore Roosevelt in 1912. If that wasn’t enough to crown 1968 as one of the most consequential years in the nation’s history, sprinkled among these highlights were Huey Newton’s trial, the My Lai massacre, the near downfall of the French republic, the Soviet Union’s suppression of the Prague Spring and the memorable image of Tommie Smith and John Carlos raising their fists in protest at the Mexico City Games.

As consequential as the Fortas nomination may have been, it was crowded out by this surfeit of spectacle.

One other factor probably played a role. Unlike Fortas’ testimony, Bork’s hearings were televised. We shouldn’t underestimate the power of this visual medium to etch Bork into our collective memory.

QUESTION: One point about Warren that caught my attention was that he considered the 1962 case Baker v. Carr to be the “most important case of my tenure.” “Few now mark the establishment of the one-person, one-vote principle as his greatest achievement,” as you write, yet the decision “spawned an assault on the justices,” with three proposed constitutional amendments, including one creating a “Court of the Union” of chief justices from state supreme courts to review Supreme Court rulings in federal-state matters. The amendments gained enough traction to prompt Warren to speak out.

As we await potentially major rulings on partisan gerrymandering and as presidential candidates propose various changes to the current court, can you elaborate a bit on this historical moment?

BOBELIAN: The malapportioned nature of legislative districts at the time had made a mockery of American democracy.

The political branches were ideally suited to solve the problem but they had no inclination to do so. That’s what led the Warren Court to reluctantly step in. It’s also what convinced one of the court’s centrists — Tom Clark — to change his mind and finally concede to allowing judicial intervention in an arena long considered nonjudiciable.

Warren was convinced that a fairer political system would be more reflective of the electorate and therefore resolve many social and political problems through the democratic process rather than relying on the courts to do so.

Not everyone thought so. The reapportionment rulings induced a great deal of outrage. Many of the politicians who owed their seats to these warped legislative districts were naturally upset. Others were angry that the court had overstepped its authority. Until the court homed in on the one-person, one-vote principle a couple of years after Baker, there was great deal of litigation over the standards that should be used to determine what constituted a fair legislative district under the Constitution.

Eventually, the court’s critics tried to amend the Constitution to override these cases. The Court of the Union, a new judicial body that would sit atop the federal judicial hierarchy on certain types of cases, was the most radical measure proposed. A couple of dozen states approved milder measures limiting the court’s jurisdiction in apportionment cases. Eventually, they fizzled out, but they were another example of the animosity directed at the Warren Court that’s been lost to history.

Some of the same legal and political concerns surrounding gerrymandering are around today. Shouldn’t voters and elected officials — not judges — institute the reforms necessary to curb gerrymandering? And if the court does step in, just what standards should it apply to determine the constitutional contours of legislative districts?

As in 1962, there are no easy answers. But the Roberts Court doesn’t have to decide all these matters right now. In Baker, the court only ruled that apportionment was a justiciable issue. It didn’t set any standards at the time. But just the fact that federal courts could scrutinize legislative districts induced many states to institute reforms and inspired a great deal of litigation. It was messy for a couple of years until the court determined what standards it would apply. Within a few years, however, nearly every state had altered its legislative districts and the nation quickly moved on.

The same could be done now. The court could make it clear that gerrymandering is a justiciable issue. It will undoubtedly induce a lot of lawsuits and inundate the lower courts with cases. But there are some benefits to this approach. As different litigants come up with their own standards, and federal judges have a chance to review these various methodologies, it will allow the nation to have a debate over which of these alternatives might work best. It will also give the justices a couple of years to take these different approaches into consideration before coming up with a more concrete set of guidelines. A great deal of uncertainty in the short run could lead to one of the most important reforms the nation has seen in decades in the long run.

QUESTION: What would you most want readers to remember from 1968 for the 2020 campaign?

BOBELIAN: I would urge readers to look at the parallels between these two time periods. Calling Obama a lame duck, McConnell refused to consider Merrick Garland’s nomination. Just as they had retaliated against Nixon’s nominees, Senate liberals sought to stymie Neil Gorsuch through a filibuster — the very mechanism used to thwart Fortas. The heated exchanges between Kavanaugh and Senate Democrats were eerily similar to the testy duels between Fortas and Thurmond.

Like Nixon during his presidential run, Trump also made overt promises to appoint certain types of justices.

None of this was good for the court back in 1968 and the same holds true today. It’s naïve to think that the justices were Platonic guardians free of partisan interests or ideological biases earlier in the nation’s history. But if the justices are little more than representatives of their respective political parties — which they have increasingly turned out to be in recent close, controversial cases — then it’s fair to ask whether we as a nation should entrust nine people operating a nondemocratic institution to make these kinds of decisions. The primary reason the justices have been safeguarded from the political process is so that they can remain above politics. A large number of Americans don’t look at the court that way, and that undermines the court’s legitimacy. It’s up to the justices to change that perception — and I give credit for the chief justice for trying to do so to some extent — and it’s up to future presidents and senators to work together to find more mutually acceptable nominees to fill the seats of the nation’s highest court rather than repeatedly maximizing their political advantages at the expense of their political rivals. That seems unlikely now, but if the two parties engage in a war of attrition over the Supreme Court, they may have no choice but to turn back the clock to a more collegial time.