Republicans, Beware the Abe Fortas Precedent

by Josh Zeitz

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 hostileCongress 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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