1968 - Mark Kurlansky [209]
But cronyism was not the main issue; it was the right of Johnson to appoint Supreme Court justices. Republicans, who had been in the White House only eight of the past thirty-six years, felt they had a good chance of taking over in 1968, and some Republicans wanted their own judges. Robert Griffin, Republican from Michigan, got nineteen Republican senators to sign a petition saying that Johnson, with only seven months left in office, should not get to pick two judges. There was absolutely nothing in law or tradition to back up this position. At that point in the twentieth century, Supreme Court judges had been appointed in election years six times. William Brennan had been named by Eisenhower one month before the election. John Adams picked his friend John Marshall, one of the most respected appointments in history, only weeks before Jefferson was to take office. Griffin simply wished to deny Johnson his appointments. “Of course, a lame duck president has the constitutional power to submit nominations for the Supreme Court,” argued Griffin, “but the Senate need not confirm them.” But Griffin and his coalition of right-wing Republicans and southern Democrats were not doing this completely on their own. According to John Dean, who later served as special counsel to President Nixon, candidate Nixon kept in regular contact with Griffin through John Ehrlichman, later the president’s chief adviser on domestic affairs.
But the Democrats had an almost two-to-one majority and supported the appointments, and a great deal of the Republican leadership, including the minority leader, Everett Dirksen, did as well.
At his hearings Fortas was submitted to a grilling unprecedented in the history of chief justice appointees. He was attacked by a coalition of right-wing Republicans and southern Democrats. Among his chief inquisitors were Strom Thurmond of South Carolina and John Stennis of Mississippi, who denounced him for being a liberal in “decisions by which the Court has asserted its assumed role of rewriting the Constitution.” It was a new kind of coalition, and in carefully coded language they were attacking Fortas and the Warren Court in general for desegregation and other pro–civil rights decisions as well as for protection for defendants and rulings tolerating pornography. Fifty-two cases were brought up in which it was claimed that in forty-nine of them Fortas’s vote had prevented material from being ruled pornography; this was followed by a private, closed-door session in which the senators reviewed slides of the allegedly offensive material. Strom Thurmond even attacked Fortas for a decision made by the Warren Court before Fortas was on the bench. In October they managed to defeat the nomination with a filibuster, which requires a two-thirds majority to break. The pro-Fortas senators lacked fourteen votes, so the appointment was successfully tied up until the end of the congressional session—the first time in American history that a filibuster was used to try to block a Supreme Court appointment. Since Fortas would not be vacating his associate justice seat, Thornberry’s nomination was dead also.
When Nixon came to power, he began to attack the Supreme Court, attempting to destroy liberal judges and replace them with judges, preferably from the South, who had an anti–civil rights record. The first target was Fortas, who was driven from the bench by a White House–created scandal for accepting fees in a manner that was common practice for Supreme Court justices. Fortas resigned. The next target was William O. Douglas, the seventy-year-old Roosevelt-appointed liberal. Gerald Ford spearheaded the impeachment drive for the White House but it failed. The attempt to place southerners with anti–civil rights records in the court failed. The first, Clement Haynsworth, was rejected by the Democratic majority still angry over the attack on Fortas. The second, G. Harrold Carswell, was found embarrassingly incompetent. But the Fortas attack plus