President Barack Obama has faced many trials during his turbulent presidency, but few as consequential as the raging debate over the appointment of the successor to the late Supreme Court Justice Antonin Scalia.
“Delay, delay, delay,” Donald Trump advised as a tactic to derail an Obama nomination, as Ted Cruz threatened a filibuster in the Senate, claiming the next president should decide who takes Scalia’s seat. As Obama braces for the battle ahead, he can look to a similar trial faced by Lyndon Johnson—the last president to be presented with a Supreme Court vacancy in his final year in office—as a warning.
When it came to getting things done in Washington, few, if any, were the equal of LBJ. Part of it was Johnson’s savvy. Here’s an example: When he wanted to further the cause of civil rights by appointing the first African-American to the Supreme Court, he created a vacancy by naming Ramsey Clark, the son of Supreme Court Justice Tom Clark, as his attorney general in 1967, thereby creating a conflict of interest for Justice Clark. Clark resigned his post so that his son could become the nation’s top lawyer, paving the way for Thurgood Marshall to make history as the nation’s first black Justice.
But another Supreme Court vacancy during the waning days of Johnson’s presidency shows a rare example of LBJ on the losing side of a crucial battle with Congress.
In 1968, Earl Warren, the court’s liberal-minded chief justice, resigned, putting the choice of his successor in LBJ’s hands. The president quickly nominated his longtime friend and adviser, Abe Fortas. From the start, the prospects of Fortas, a Johnson appointee as an associate justice in 1965, were tenuous. Fortas’s liberal voting record, including his majority vote in the landmark Miranda v. Arizona case, was at issue with an increasingly conservative Senate.
Still, Johnson went forward with the nomination after securing the support of Senate Minority Leader Everett Dirksen, who would bring crucial GOP support with him. But Johnson knew he would have to move the nomination through quickly at the risk of losing Dirksen’s backing. “Just take my word for it,” he told an aide presciently, “If they get this thing drug out very long, we’re going to get beat." The nomination quickly hit a snag when Robert Griffin, a Republican freshman senator from Michigan with big ambitions, announced his refusal to entertain nominees put forth by a lame duck president.
After enlisting 18 Senate colleagues, Griffin threatened a filibuster, successfully dragging out the process as LBJ had feared. As it did, opposition to Fortas grew. Senators held that Fortas, as an adviser to Johnson, had in principle violated the separation of powers inherent in the Constitution. Never mind that members of the high court had been consulted by presidents and even called on to establish policy, as the first president, George Washington, did in 1794, when he tapped John Jay, the first chief justice, to negotiate a treaty with England to avert the threat of war. A second charge was more damaging: assertions that Fortas had accepted $15,000 to teach a nine-week course at American University Law School, which had come indirectly through a former law partner who, it was argued, could have business before the court.
The speed bumps were sufficient enough that Johnson’s prediction came true: He lost Dirksen’s support. After the Senate Judiciary Committee approved Fortas’ nomination by an 11-4 vote, Sen. Griffin began his filibuster. When Johnson called for its end, a vote in the Senate for Fortas’s appointment came up 14 votes short. The writing clearly on the wall, Fortas withdrew his name from consideration. As the clock ran out on his administration, Johnson lost his chance to further make his mark on the court and extend his presidential legacy.
Richard Nixon, elected president later in 1968, would go on to successfully nominate conservative judge Warren Burger as chief justice. Burger presided over the court for 17 years. Lady Bird Johnson chalked up her husband’s uncharacteristic loss to “the rising anger against Lyndon and mostly the rising anger against liberalism.”
The past, clearly, offers a feasible prologue, as the din of rising anger clamors around the 2016 presidential race. If Obama is to avoid the lame-duck fate of LBJ, savvy and speed will be the orders of the day.
— Mark K. Updegrove is a presidential historian and author of “Indomitable Will: LBJ in the Presidency”