With Justice Anthony Kennedy’s decision to retire, attention will shift to the ferocious confirmation fight that looms. With an absent John McCain giving the Republicans a mere 50-49 Senate majority, Kennedy’s timing seems obvious. No guarantee exists that the GOP will retain control of the Senate after November’s elections, and a Democratic Senate is unlikely confirm any nominee of Donald Trump’s — just as, two years ago, a Republican Senate refused to give Barack Obama’s nominee a hearing, let alone a vote.
How did we reach this situation? Fifty years ago this month, the modern judicial wars began. On June 21, 1968, the White House released a letter from Chief Justice Earl Warren announcing his retirement. To replace Warren, Lyndon Johnson nominated Abe Fortas, shifting him from associate justice to chief justice. In an effort to pacify Southern Democrats, he selected former Texas congressman Homer Thornberry to replace Fortas.
Johnson had no reason to believe that his move would encounter difficulty. In the years since 1930, the Senate had easily confirmed the previous 22 Supreme Court nominees. And these political norms — that the Senate showed extraordinary deference to the president’s selection, eschewing any close examination of the nominee’s judicial philosophy or the court’s ideological balance — perhaps made Johnson overconfident.
The president made no pretense that he had selected the most qualified candidates. Fortas was a longtime friend, who continued to serve as an informal adviser even after joining the court in 1965. Johnson’s secretary of defense, Clark Clifford, urged him to accompany Fortas’s nomination with that of a Republican, with an eye toward current political realities. But Johnson rejected the idea and instead chose a figure that he privately admitted could be described as a “crony.”
Johnson, assuming the Fortas nomination would go smoothly, turned his attention to Fortas’s replacement. In a private conversation, he made clear to Fortas what he wanted for his replacement: “I want somebody that I’ll always be proud of his vote. … He may not be as eloquent as Hugo Black, or you, or somebody. But I want to be damn sure he votes right.” With the support of Senate Majority Leader Mike Mansfield, Senate Minority Leader Everett Dirksen and (it seemed) Southern Democratic leader Richard Russell (a hunting buddy of Thornberry), Johnson seemed assured of victory. The Economist raved that by choosing Thornberry, an “old-style Texas politician” with “a host of friends and absolutely no enemies,” Johnson had neutralized any possible Senate opposition.
But this assessment badly misread the situation.
Senator Robert Griffin (R-Mich.) led a group of 18 Republicans in opposing Johnson’s nominations. In rhetoric that would echo Senate Majority Leader Mitch McConnell’s approach in 2016, Griffin denied any partisan motivation. Instead, he pointed to Johnson’s decision not to run for reelection, and cited a previously non-articulated principle to claim that it would “break faith with our system” for the nomination not be made by the “next president,” after “the people have an opportunity to speak in November.” One of Griffin’s colleagues, however, bluntly exposed the GOP senators’ real motive: “I believe a Republican should be appointed.”
As political scientist Kevin McMahon has noted, Johnson’s choice of Fortas effectively invited Senate conservatives to use the confirmation fight to put the Warren Court on trial. Led by Chairman James Eastland (D-Miss.), a bipartisan coalition of conservatives controlled Fortas’s confirmation hearings. These senators focused on pornography cases, where the court’s free speech principles were legally appropriate but difficult to defend politically, and criminal cases, including one decided before Fortas even joined the court.
Eastland dragged out the hearings throughout the summer of 1968. By the time the committee voted in September, opponents had dug up damaging information about Fortas’s personal finances.
As Fortas’s appointment grew more unlikely, Johnson lashed out to aides about Senate opponents outmaneuvering the administration: “We’re a bunch of dupes down here. They’re whipsawing us to death because they’re dragging their feet. We’ve got to do something.”
There was, however, nothing to be done. In the end, the Senate never formally voted on either nomination. Conservatives announced that they would — for the first time in history — filibuster a Supreme Court nomination. A cloture vote to break the filibuster failed to even receive majority support. Because Fortas was not confirmed as chief justice, there was no vacancy for Thornberry to occupy, and so his nomination never came before the Senate.
A September 1968 editorial in The Washington Post presciently warned, “If a minority can now block Fortas,” then “there will be a standing temptation to make every judicial appointment in the future into a political tug-of-war.”
Not every subsequent nomination devolved into such a fight. But from the Fortas battle emerged patterns familiar to us today. It featured a president interested in securing his political legacy, searching for a nominee who would be a reliable ideological vote, arrayed against Senate opponents willing to mask ideological opposition to the nominee in self-serving, hypocritical procedural claims.
Committee hearings and public commentary debated the prospective justice’s legal philosophy. Critics of the court’s recent decisions stirred unprecedented popular mobilization. And both sides had unclean hands: Johnson’s efforts to nominate an ideologically predictable crony left him open to criticism, while many of the Senate Republicans who did everything they could to block Johnson’s choice would champion utmost deference to Richard Nixon’s nominations over the next few years.
The biggest difference between 1968 and today: In the era before ideological polarization of the parties, the Senate vote on the cloture motion didn’t fall strictly on party lines.
As the parties polarized in the years since the Fortas fight, we have seen increasingly charged nomination fights. Senate Democrats blocked two Nixon nominees, Clement Haynsworth and G. Harrold Carswell, who generated intense opposition from civil rights groups. After a period of quiescence, passions resurfaced in the mid-1980s. Democrats failed to prevent William Rehnquist from being elevated to chief justice, but succeeded in blocking Robert Bork. GOP hardball tactics put Clarence Thomas on the court and blocked several Clinton appellate court nominees. During the George W. Bush era, Senate Democrats extended the filibuster to lower-court nominees, such as Miguel Estrada, who they expected might eventually be Republican Supreme Court nominees.
In a Senate controlled by Republicans, Obama nominee Merrick Garland did not even receive consideration (and even if he had, it seems inconceivable that he would have received the 14 Republican votes necessary for cloture), after a Senate session that confirmed fewer judicial nominees than any other in decades. Then, when Senate Democrats, still in the minority, filibustered Neil Gorsuch, Senate Republicans simply eliminated the filibuster for Supreme Court nominees. From a one-time fight over Fortas, we now have essentially permanent resistance to appellate judicial nominees from the other party.
Perhaps the central lesson of the Fortas nomination was the fragility of Senate norms, and the willingness of political leaders to abandon those norms in pursuit of short-term goals. And so we have reached a new equilibrium. Supreme Court confirmation fights are essentially parliamentary, with scant chance of a successful nomination if a single party doesn’t control the presidency and the Senate, and a clear sense on both sides that ideological concerns are paramount.