Meredith Hindley: The Transformation of "Advice and Consent"

Roundup: Talking About History

[Meredith Hindley is senior writer for HUMANITIES.]

In the aftermath of the Senate hearings to consider the president’s nominee to become the next U.S. Supreme Court justice, it’s hard to remember that the process wasn’t always like this. There weren’t always weeks of media coverage, and there weren’t always hearings. Nor did individual senators spend hours calling witnesses, making statements, or cross-examining the nominee. In fact, the first nominee didn’t testify before the Senate Judiciary Committee until 1925, when Harlan Stone proposed an appearance to answer questions about his ties to Wall Street. It would be another fourteen years and five justices until nominee Felix Frankfurter appeared before the committee to address rumors that he was secretly a Communist. Starting with John Harlan in 1955, all nominees appeared before the Senate Judiciary Committee. Southern senators, unhappy with the 1954 Brown v. Board of Education decision, wanted the opportunity to question nominees about their judicial philosophy. Even so, subsequent hearings lasted three days at most.

The short-and-sweet approach became a thing of the past in the late sixties, as the vetting of Abe Fortas, Homer Thornberry, Clement Haynsworth, and G. Harrold Carswell turned into extended brawls. At issue was the legacy of the Warren Court. But the changes in political process were also important, as they proved long-lasting and transformed the way the Senate provides “advice and consent” to the president on Supreme Court nominees.

At the end of June 1968, President Lyndon Johnson announced that Chief Justice Earl Warren intended to retire. Warren had presided over the Court since 1953. During his tenure, the Court handed down a series of rulings that expanded civil liberties and protected the rights of individuals. Brown v. Board of Education and subsequent civil rights rulings uprooted Jim Crow laws in the South and challenged long-standing racial mores. The Court also expanded First Amendment rights, rolling back laws that barred Communists from jobs and targeted pornography. Prayer and Bible reading were also banned in public schools. The rights of the accused were expanded as well, including the 1966 Miranda v. Arizona decision, which required police officers to inform criminal suspects of their Constitutional rights prior to questioning.

The news of Warren’s retirement came as a relief to Southerners, states’ rights advocates, social conservatives, and law-and-order proponents. In their eyes, the Warren Court had corroded the fabric of American society.

Warren’s retirement, however, came with strings: His resignation would not become effective until “such time as a successor is qualified.” To replace Warren, Johnson wanted to elevate Associate Justice Abe Fortas to chief justice and appoint Homer Thornberry to fill the empty associate justice chair. Both men were liberal and would carry on the work of the Warren Court.

Fortas had served on the Supreme Court since 1965 when he replaced Arthur Goldberg as the Court’s only Jewish justice. Born and raised in Memphis, Fortas put himself through Southwestern College (now Rhodes College) by playing the violin at school dances. A stellar turn at Yale Law earned him an appointment as assistant professor upon graduation in 1933. Four years later, Fortas headed to Washington to work for the Roosevelt administration, becoming undersecretary of the Interior in 1942. In 1948, he cofounded one of Washington’s leading law firms, Arnold, Fortas & Porter (now Arnold & Porter).

Thornberry was a dear friend of Johnson’s from their early days in Texas politics. The product of a dirt-poor upbringing by deaf parents, Thornberry worked his way through the University of Texas and its law school as a deputy sheriff. While still in law school, he was elected to the Texas legislature. A stint as district attorney followed, along with service in naval intelligence in World War II. The friendship continued in Washington, when both men were elected to Congress in 1948, Johnson as a senator and Thornberry as a representative. In 1963, Thornberry left Congress to become a federal district judge and was named by Johnson to the Fifth Circuit Court of Appeals two years later.

Howls of outrage rose from Capitol Hill about Chief Justice Warren’s retirement, which shocked Johnson. Senators on both sides of the aisle bristled at his conditions, regarding them as an affront to the chamber’s Constitutional right to advise the president on nominees. Republicans howled the loudest. They believed that Johnson and Warren were conspiring to prevent the next president—which, if the polls held, would be Republican—from picking a new chief justice. Robert Griffin, an ambitious junior senator from Michigan, circulated a petition demanding Johnson be denied the right to appoint anyone to the bench for the remainder of his term. Nineteen Republican senators signed on. Georgia Democrat Richard Russell privately told Griffin that while he and other Southern Democrats would not make any public statements against Fortas, they would vote against him when the time came...

... When Congress returned to session, Eastland opened the hearings for another two days. Thurmond and Griffin had planned to focus on Fortas’s record on pornography and his friendship with Johnson, but an anonymous phone call pointed them in the direction of a nine-week summer seminar Fortas had taught for American University Law School. Fortas received $15,000 for the seminar, roughly 40 percent of his regular salary. Previous teachers had been paid $2,000. B. J. Tennery, the dean of the law school, explained to the committee that Fortas was also being compensated for developing teaching materials. Private donations solicited by Paul Porter, Fortas’s old law partner, paid for his salary. The donors consisted of two directors for Braniff Airways, two department store magnets, along with the chairman of the New York Stock Exchange. Fortas now had a possible conflict-of-interest problem, since it was inevitable that issues important to those entities would come before the Court. After a lurid examination of Fortas’s record on pornography by Thurmond, which included a screening of two explicit films deemed to be free speech by the Warren Court, the hearings were gaveled to a close.

The hearings had run for eleven days. The hearing three years earlier to confirm Fortas as associate justice had run for three hours.

At the beginning of October, Fortas’s nomination went to the full Senate for a vote. For four days straight, senators defended or lambasted Fortas until a cloture petition to end the debate was introduced. The vote, 45-43 in favor of cloture, was a harbinger of Fortas’s confirmation prospects. It was fourteen votes short of the two-thirds majority needed to end the debate and compel a vote on the nomination. Fortas asked Johnson to withdraw his name, a move that also spelled the end of Thornberry’s nomination as well.

Elected the next president of the United States in November 1968, Nixon feared that Johnson might try to make a lame duck appointment. Remaking the Supreme Court had been a battle cry of his campaign, and he had no intention of losing out on the chance to appoint a new chief justice. To foil Johnson, Nixon asked Warren to stay on through the Court’s spring term. In May 1969, Nixon picked Warren Earl Burger to be the next chief justice. Appointed by Eisenhower to preside over the Court of Appeals for the District of Columbia Circuit, the conservative Burger had a sterling reputation. Republicans and Democrats volunteered to testify on his behalf, as did six past presidents of the American Bar Association. His confirmation hearing lasted one hour and forty-five minutes...

... Charging the Senate with prejudice against the South was a convenient way for Nixon to explain the defeat of his two nominees. The reality was far more complex. The Senate rejected Haynsworth and Carswell, the Congressional Record makes clear, because of their ethical problems and civil rights records. They were also victims of the tactics their supporters used on Fortas. The dissection of Fortas made possible the dissection of Haynsworth and Carswell.

The hearings also created a template for dealing with a controversial nominee that extended beyond the Nixon administration. Critics of Robert Bork, nominated by Ronald Reagan in 1987, deployed the same tactics used against Fortas. The Senate Judiciary Committee questioned Bork for a record five days—one day longer than Fortas—and heard from more than one hundred witnesses. While Bork’s nomination failed, it generated a new word: to bork someone is to deny them a judicial appointment.

Nixon abandoned his quest to appoint a Southerner and nominated Harry Blackmun, a conservative appellate judge from Minnesota, in April 1970. Blackmun’s hearing lasted three hours and five minutes. The Senate confirmed his appointment 94-0. As for the men whose defeats served to change the nature of the nomination hearings, Fortas started his own law firm, Fortas and Koven. Thornberry served as Fifth Circuit judge until one month before his death at age eighty-six, acquiring a reputation as an advocate for racial justice. Haynsworth continued to serve as chief justice for the U.S. Court of Appeals for the Fourth Circuit until he retired in 1981. Carswell resigned from the bench and threw his hat into the Florida Senate race, with a campaign cry of “This time the people decide!” He was defeated in the primary and entered private practice.

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