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tv   Lectures in History Johnson Nixon Supreme Court Nominations  CSPAN  January 12, 2021 5:54pm-7:12pm EST

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next on lectures in history. brooklyn college professor kc johnson teaches classes on lyndon johnson and richard nixon. this is an hour and 15 minutes. >> all right, what we will be
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looking at today is the development of controversial supreme court nominations in the late sixties and early seventies. the backdrop to this, remember last time, we're looking at the warren court, this increasing search of controversial decision from the court. two basic principles. remember the idea of a counter majority -- majority aryan isn't. that it was a particular job of the supreme court to stand up on behalf of people who may not have majority support whether it was a secret atheist or civil rights activists or criminal defendants throughout the 1960s. and second was the emergence of this philosophy that some historians have called rights -related liberalism. the idea that liberalism in the united states was primarily devoted to the protection of individual rights. as a result, the supreme court became a very important mechanism for this. one problem. if you're going to govern
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through the supreme court, you have to be able to appoint supreme court justices. we will see this becomes an increasingly fraught prospect for liberals. the backdrop. lbj. after 64 with the civil rights act, 65 with the voting rights act, he has a sense that the supreme court is going to be significant. unlike with kennedy, there are no openings on the court so johnson essentially creates one. the first one comes in 1965. it's a custom which dates back to the wilson administration with louis brandeis. there was one jewish member on the court. it was arthur goldberg in the sixties. he had been appointed by jfk. he cemented the liberal block on the court. johnson wants to appoint this man however, his longtime lawyer and fairly close personal friend and adviser, abe for this. who is jewish. he goes to goldberg and says,
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look arthur, it's very important. we have a problem in vietnam. it simply can be handled at the united nations. you're the best negotiator i know. what you need to do, for the good of the country, is to resign from the supreme court, except a job as un ambassador. goldberg believes it and goes to the un and is basically ignored by johnson for two years and abe will continue to advise johnson behind the scenes. he helps to draft johnson's speech is. remember -- think about if john roberts regularly consulted on trump's speeches. this is considered improper and will create problems for johnson down the road. in 1967, thurgood marshall, which is seen previously as the naacp's chief counsel, johnson had appointed to the circuit court right here in new york. johnson sees an opportunity to
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name the first african american to the court. but there's no vacancy. there is a vacancy for the petition -- position of attorney general. johnson decides lindsey clark, a liberal lawyer, would make the top attorney general. one small problem, clark's father is on the supreme court. johnson goes to ramsey clark and says, i would love to appoint you as attorney general but i cannot do it with your father on the supreme court. if he says -- if your father is prepared to resign as supreme court justice, i can appoint you as attorney general. johnson assumes he will run for reelection in 1968. he's going to be reelected in 1968. there are three fairly elderly members of the court, including two justices, black and harlan, who are not in good health in
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the late 1960s. he's under the assumption he will be able to appoint four or five justices by the time he leaves office. instead we all know the history, johnson's support begins to weaken. in march of 1968, johnson announces that he is not going to run for reelection. by the summer of 1968, it seems pretty clear that the democrats are going to have a tough time winning this election. that means that johnson's successor is likely going to nominate the replacement for chief justice earl warren. so warren in june of 1968 decides to preempt this possibility. he makes an announcement that he's going to retire as chief justice of the supreme court upon the confirmation of his replacement. what warren is basically telling conservative senators is, you have a choice. you can confirm whoever lbj nominates to take my place or i'm going to be there as the chief justice continuing to issue these liberal opinions.
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the expectation is that most members of the senate will more or less go along with that, even if they don't particularly like the idea of johnson naming a replacement. there is one other thing which is in the back of the minds of both warren and johnson. johnson is arguably the most gifted president in american history, if not the most gifted then the second or third most gifted and having a sense of what he could get through congress. as johnson names a replacement for warren, he's thinking of this chart. these are supreme court nominations in the last two political generations dating back to 1937. all the nominations from fdr, from truman, from eisenhower, from kennedy and from johnson. take a look at this middle column here. most of these nominations are
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confirmed with the letter in the. that means there is a voice vote in the senate. the senate does not even bother to hold a roll call vote, it automatically confirms the justice. almost all of the others are overwhelmingly confirmed by the senate. so by the late 1960s, there's become this expectation that yes in the constitution it says that the president nominates a supreme court justice and the senate has to confirm that selection. but in the real world, whoever the president nominates is going to get confirmed and this is what johnson issues is going to happen in 1968 as well. in june of 68, they will go inside the white -- the assumption is that johnson has out thought his opponents once again. he will get a liberal chief justice on the supreme court by late 1968 who will serve throughout the 1970s and ensure the supreme court will remain liberal. there is another chart that
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johnson might have wanted to examine but did not. that is the chart of his declining public support. the chart on the left is his approach -- approval measured by gallup throughout his presidency. he goes up and down a little, but there's a pattern here. it goes from quite high in 63 in 64 and drops. but early 1968, johnson's approval rating is hovering around 35%. for comparison's sake, that is seven or eight points below what trump's approval rating currently is. so this is a very low approval rating for lbj. along with this, the fact that he's not terribly popular, he's not running for reelection. the last time there had been a supreme court justice confirmed by the senate who had been nominated by a president who had announced he was not running for reelection was 1893. this charming looking man here,
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howell jackson. he was a grover cleveland nominee. he served for a few years, got ill and died in the mid 1890s. from the standpoint, there's a good precedent for johnson. basically any one who is nominated gets confirmed. but you look here and johnson might have some problems here. he's not a popular president. the senate did not have much of a precedent in terms of confirming late nominees by the president. johnson is looking at one other vote. he fails to anticipate where the key opposition is going to come from in 1968. this is the chart the johnson is looking at as he's making his election in 1968. this is the roll call vote for thurgood marshall's confirmation in 1967. you will notice that this is not a unanimous vote, like many of the other thirties, forties
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and fifties nominees had been. there are 11 senators who vote against thurgood marshall's confirmation. the 11 are up top on the chart. if you see quite closely, you can pretty much identify where these people are coming from. they are all from the south. ten of them are democrats. this is a period where segregationist democrats remain in place in the south and the 11th is a former democrat who is at this point a republican senator from south carolina. so in johnson's mind, as he's thinking about who would be a good replacement for warren, what he is saying is the people that he needs to sort of preempt is southern opposition. if i can come up with a nominee that will appeal to the southerners, and the nominee will sail through without any problem. johnson however makes this a little too complicated. he concludes that he does not want to name a new replacement for warren. when he instead wants to do is
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elevate his friend, justice fortas, from associate justice to be chief justice. so he wants to come up with a replacement for fortas as associate justice. so he's going to have to make two nominations rather than one. he goes through a number of lists. the man he's most interested in looking at is home or thorn burr. he knows him very well. he had succeeded him in the house of representatives when johnson was elected to the senate johnson and then appointed homer thornberry to the fifth circuit based in new orleans. he's a court judge nominated by johnson. he's a former congressman. he's very friendly with southern politicians. he's particularly friendly with richard russell, with the most powerful of the southern democrats. so johnson senses that thornbury -- that homer thornberry will
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peace the southerners who did not like thurgood marshall. he will ensure that fortas will be confirmed. before johnson announces homer thornberry, he gets on the phone with several key figures to sort of feel them out on what they were thinking. generally, when johnson would call you this was not a two-way conversation. johnson was not soliciting information, he was basically encouraging you to think as he did. his first call goes to justice fortas. the call is ostensibly to get feedback from fortas about who would be a good replacement for fortas as associate justice. but as will become clear, johnson has already made up his mind and fortas job here is to basically say yes. >> thornberry has some disadvantages. he's congressman, a city councilman, a state legislature.
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i think it would be awfully good on the court. but from the standpoint of the liberal press, this will not give me a fair trial. heck, i would be nominated back with a nomination on my record. for civil liberties and civil rights. but the times and the folks who are against me because they are anti-semitic. because i live in texas, i don't have style. that's the only thing they have against me. i have adopted their platform. i know you've got to go. how you gonna rate these people? one, two, three, four, five? from the standpoint of my practical problem and wet i may want to do here and all the other things. [inaudible]
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i look at this not from your standpoint. look at it from my standpoint of knowing me, as you know me, of what i want. i want somebody who i can always count on his vote. i won't be necessarily proud of his opinion, but i want to be proud of the side he is on. >> these are private conversations. fortas it's not aware he's being recorded. johnson does know. and he's perfectly candid here about what he wants. if you get a brilliant justice, that would be great. but the chief goal here is to get someone who will vote the way the johnson wants. one suspects that every conversation from the president after johnson had a similar line, i'm sure it did with trump's two nominations as well. but there's an obvious play here. johnson's goal is to ensure a liberal majority on the court. he thinks he can do that with
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fortas and thornberry. and then johnson reaches out to key senators. johnson understood how the senate understood -- operated in the fifties exceptionally well. his problem will be that the senate in the sixties operated quite differently. johnson in the fifties believe he could kind of filter through key senate leaders. he reaches out to this man, richard russell. a democratic senator from georgia, a segregationist. the most prestigious of the southern democrats. johnson likes thornberry a lot. johnson reaches out to the minority leader, head of the senate republicans, every jerks and. a republican senator from illinois. he and johnson had worked very closely on the voting rights act. he was a supporter of african american civil rights.
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he knows and likes fortas. he also knows and likes thornberry. he commits to support. johnson also bridges out to the majority leader of the senate. man's field is not thrilled about fortas as a nominee, but says he's willing to go along with johnson's plan. so it looks like is if this is a done deal. fortas has been nominated. thornberry is the associate. the three most powerful members of the senate, johnson believes, are already on board and willing to support both confirmations. this is just going to be a done deal. johnson's problem is that he essentially lost a decent amount of power by the fact that he's not running for reelection. but he has not conceptualized that. he will admit very quickly in the summer of 1968. two things happen almost immediately. the first is that 19 republican
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senators signed on to a public statement prepared by this man, robert griffin. a republican senator from michigan. it comes to be known as the round robin. it articulates a view that will reappear in american life in 2016 this is essentially the same argument that thornberry mitch mcconnell makes against the garland nomination. we have a vacancy for the supreme court. there is a presidential election going on. we are going to withhold our support from any nominee on the grounds that the new president should be able to make this choice. johnson at this point had been elected 64. what griffin is doing here is that he's seen the polls. by june of 1968, nixon has assumed a fairly healthy lead
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over hubert humphrey, who's going to be the democratic nominee. griffin is saying he's confident that nixon is going to win. what he's basically saying is that i want a republican to make this nomination rather than a democrat. if the polls were flipped. let's say we are in an alternative world and hubert humphrey was somehow ahead of nixon by 15 points in the polls. i suspect that griffin would have said let's go along with this. but he does not. he gets a significant chunk of senate republicans. 19 senators who are signing on to this statement. remember, we have 11 senators, ten of whom are democrats, who oppose thurgood marshall. so at least on paper we have at least almost 30 senators who seem to be skeptical about a possible johnson llama nation. but the johnson white house staff does not detect this. just at the time of the griffin round robin is coming out, johnson's legislative liaison
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team, the office in the white house that basically counts votes in congress, they prepare these documents for lbj. what they say is this is the issue. we have roughly 70% of the support in the senate. we have a handful of opponents. you don't need to worry for this -- , fortas it's going to get confirmed. from the president standpoint, this nomination appears to have gone very well, but there are big problems emerging in reality that they do not seem to be detecting. privately, johnson in late june and early july of 1968, he's telling his aides that griffin is bluffing. yes there are 19 republicans have signed this letter, but in reality all of them are not going to vote against fortas and thornberry. they will back down once the nominees make it to the floor. they are just trying to sort of provide a show. this is not what happens, but
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johnson does not quite understand. then there is a second problem. dating back to louis brandeis, supreme court nominees had gone before the senate judiciary committee. and dating from the thirties, there had been a fairly normal practice where senate -- supreme court nominees will testify before the senate judiciary committee, get asked their opinions on constitutional issues and offer some feedback. these tended to be quite routine hearings. nothing like what we saw in the last few weeks. nothing like we've seen before, but sending aside the garland hearings, nothing like that would be a television spectacle. nonetheless, he would have to go through the motions. the problem for johnson is that the judiciary committee in 1968 is probably the single most hostile committee to the
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president and two liberal philosophy that exists in the senate. think back a few weeks ago to the kavanaugh hearings. the kavanaugh hearings basically we have 19 member committee with ten fairly consecutive -- conservative republicans, nine fairly liberal democrats. it's an ideologically split committee. but the democrats are liberals who are on the committee. that is not the case in 1968. the chairman of the committee is this man, jim eastland. a democratic senator from mississippi. ardent segregationist. he had voted against thurgood marshall's confirmation. he had voted against the civil rights act. he had voted against the voting rights act. the second ranking democrat on the committee, john mcclelland, democratic senator from arkansas. he had been absent from the marshall confirmation, but had made clear he opposed marshall.
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he had voted against the voting rights act and voted against the civil rights act. some irving, democratic senator from north carolina, voted against the marshall confirmation and voted against the voting rights act. voted against the civil rights act. these are the three most senior democrats on the judiciary committee. these are senators who today would be among the most conservative members of the senate. they are bitter critics of the warren court and the worn courts key decisions. and so essentially what they decide among themselves, and eastland is the chair of the committee, the chair of the committee controls how the process operates. think back to the examples of the last few weeks. the key person in the cabinet hearings was chuck grassley, the republican chairman who sort of presided over the hearings. what eastman, mcclelland, and urban design is that they are
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going to use this opportunity to put the war in court on trial. to bring abe fortas before their committee and grill him on a variety of warren court decisions. so instead of a routine hearing, what fortas gets is very detailed questions about specific warren court decisions. he does not give consistent answers some type. sometimes he says he will defend these decisions, sometimes he says he can't talk about these decisions because he suggests this, the committee also starts asking questions about fortas advice to johnson. it's highly improper. a supreme court justice should not be providing political advice to a sitting president. everyone knew that fortas was doing it fortas says he cannot give this advice because that would be an improper intrusion into the courts freedom of action.
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the three consecutive -- conservative democrats say that does not make sense. you're willing to talk to the president but not to the senate? that does not seem to respect the authority of the senate. fortas, this is always a problem with fortas and lbj. fortas thought michael lawyer. he gave these specific legal list take answers that sounded very defensive. he was not a particularly good witness. but the star of the hearing is not any of the democrats. the start of the hearing is this man, strong thurmond. republican senator from south carolina. former democrat. independent presidential candidate in 1948. he flipped to the republicans in 1964. thurmond was a demagogue. he understood how to prosper in politics. he was a sharp opponent of civil rights. in his mind, the questions
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coming from fortas and mclellan and eastland were to legalize stick. -- legalistic. he goes over fortas judicial record. it's not very robust, he's only been on the court for three years. what thurman noticed is that fortas had frequently been in five and four majorities. on paper the decisive vote, on a series of decisions that the warren court had made over pornography issues. where the court had struck down state laws restricting the stale -- sale or dissemination of pornography on the grounds that this piloted the first amendment. thurmond sensed this could be a vulnerability, to portray fortas as a pro pornography justice, someone outside of the ideological mainstream. he welcomes as a witness, as a member of the minority they get
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to invite a handful of witnesses. james clancy, who is head of citizens for decent literature, an anti pornography organization. clancy describes in quite robust detail the plot lines of various films and books that fortas had upheld as non obscene. in this line of attack that fortas is essentially a pro pornography justice, that starts to resonate. a lot of conservative members of the senate begin to distance themselves. both russell and dirksen retreat a bit. johnson is trying to figure out what is going on. the problem here is that he does not have any close allies
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in the judiciary committee. he finally turns to georgia's matters, who is a democratic senator from florida. a low ranking member of the judiciary committee, but it put close personal friend both jfk and lbj. he's trying to get a sense from him why is this committee taking -- this committee process taking so long? what smathers tells him is that these senators are very interested in the pornographic films. indeed, he suggests they formerly want extra time to view these films in person to determine their level of pornography. as we will see, he's telling johnson that eastland is using procedures to delay things. if it's delayed after the election, it looks as if fortas it's going to have little chance of nomination.
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to contextual items for this clip. the u.s. first lyndon johnson reference is this film, it's called a graduate. justin huffman is the star. it's seen as a very racy film in the contest except in 1968. often is seduced by the mother of one of his friends. smathers we'll be talking about his own views on pornography here. smathers had a reputation for a very active social life. that's not the portrayal that smathers gives of himself in this conversation. >> [inaudible]
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[inaudible] >> i choose not to look at it, others may choose to look at it. i've not seen it. [inaudible]
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>> will you vote on it next wednesday? >> we will do the vote on it next wednesday. >> in the committee? >> in the committee. with the cooperation of eastman, i don't know how you're going to stop it. >> what smathers is referring to is a role in the judiciary committee that allows any member of the committee to delay the vote by one week. if you are dealing with a president who's running out of time in office, this repeated delays of one week are going to cause significant problems. the pornography argument resonates with the public. the fortas confirmation is the first supreme court confirmation in american history that all of us would be at least somewhat familiar with. that is that the public is engaged with the confirmation. they are reaching out to members of the senate. the letters that senators are getting, and of course this is the pre-internet age, you
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contact your senator's office by typing at a letter. the letters that senators are getting are overwhelmingly opposed. these are a couple of photos of letters sent to an deters. these are letters from north dakota from average people worried about what they are hearing about fortas. there's been too many compromises relating to pornography and you cannot compromise with the devil. let's say you are a undecided senator, you're getting these letters opposing fortas. johnson won't be there around next year to protect you. there will be a new president. you might be coming up for reelection in 1970. you don't have strong opinions about this. you might say i'm inclined to vote no and avoid this problem. so fortas support starts to erode quite significantly.
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johnson is furious. he can't figure out what is going on. he gets on the phone with ramsey clark and start saying that the problem here that griffin, thurman and mclellan had been spreading too many unfounded rumors about fortas. so it's time for the democrats to start the founding rumors about -- to even the score. >> griffin is having a big press conference this morning. they make allegations and we just get tried and convicted every day. >> get somebody who can write some mean spat is that allege some things that they have to deny. let them do some research. that's what you've got to do. you've got to employ their resources and talents. doing research instead of attacking you. we don't ever keep them busy.
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i would find some reason that griffin is in this thing. i don't think anybody he was against anybody's point. griffin was not worried about pornography. anyone can look at his face and tell that does not bother him. he was just worried that he could not make a political deal out of the chief justice. the republican chief justice had delayed it and played politics with it till he could get in. that is what he said. he said it days before we even decided to name it. >> this is desperation. when your tactic forgetting you supreme court nominee confirmed is to say nasty things about senate republicans, you're probably going to lose. griffin delivers the final nail in the coffin for fortas in the early fall of 1968. griffin was a talented senator.
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he made clear that he had heard rumors about fortas being fortas being unethical. if people had information, he says call my office. when he finds out is that fortas have been given a substantial cash bonus, 15,000 dollars. in 1968, it's not an insignificant sum of money, to teach a very short seminar at american university law school. that's in d.c., less than a couple of weeks. that this money had not come from american university. it had instead come from a handful of private donors who were friends of fortas. this sounds uncomfortably close to being a bribe. that these people are paying fortas to do a token amount of work. the dean of american university law school says 15,000 dollars sounds like a lot of money, but fortas was doing more than just
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teaching a class. he had to prepare a syllabus. as we know, preparing isil abyss is expensive work. this is not a credible allegation. the committee invites fortas to come back before it and explain what exactly he did for this 15,000 dollars. fortas says no. at that point, the southern democrats and senate republicans jointly announced that they are going to filibuster the nomination. they will not allow it to come to a vote. the filibuster can only be breached if two thirds of the members of the senate vote to and debate. it's clear that isn't going to happen. october 1st, the senate votes. by this point, fortas is reduced to hoping for a kind of symbolic victory. he's hoping that a majority of the senate will vote to impose and he can basically say a majority of the senate wanted me on the supreme court. these conservatives blocked me. instead, the final vote is 45
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to 43. can't even get to 50 to impose coach or. he would've needed 67 to impose coach or. at that point he very clearly -- at that point, the nomination is very clearly dead. this is october of 1968. johnson is still in office for a couple of months. he does not quite give up, although this amounted to his last chance. fortas withdraws from the nomination the next day after spending 24 hours hoping that he might find a way to revive himself. so warren is still on the court, but he's made clear that he does not want to stay on the court. as all of this is occurring, we have a presidential election that is going on. and a presidential election in which the supreme court has emerged as a major issue for both of the challengers. george wallace, we've encountered him before. a civil rights opponent,
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governor of alabama. 1968, he runs as a candidate of the america independent party. strong opponent of civil rights. he argues that the warren court has exulted the power of african americans, he of course does not use the term african american. exulted the pot of criminals. exalted the power of atheist and communists at the expense of real americans whose positions he's going to take. and he gets strong support in the south, but also fairly strong support in some white ethnic areas in the north. very late in the 68 campaign, wallace is pulling in double digits in brooklyn, in staten island, that's his best throw in new york city in queens. in upstate new york. so he's not just a southern candidate. he indeed poses a problem to the republican nominee, richard nixon. because if nixon is not -- if wallace siphons to many
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conservative votes away from nixon, hubert humphrey might win with a minority of the vote. so nixon in 1968 embarks on this quite clever strategy of, at the time it's called a southern strategy, but it's much broader than that. it's about challenging the precedents of the warren court. appealing to what we would now call a racial backlash vote, but doing so in code. you don't hear anything 1968 from nixon that the civil rights act was bad or that i'm opposed to equal rights for black people. he wants to leave impressions in the mind. the issue that nixon seizes on is crime. the argument that nixon makes is that the warren court has made too many decisions in favor of the rights of criminals and that this has created dangerous situations for society as a whole. here's an example of a tv ad
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the nixon runs in 1968 on the issue of crime. it's a very cleverly constructed and. as we will see, there's only one person in this and. we are less to imagine who the person pursuing this woman actually is. >> crimes of violence in the united states have almost doubled in recent years. today, a violent crime is committed every 60 seconds. a robbery every two and a half minutes. a mugging every six minutes. a murder every 43 minutes. and it will get worse unless we take the offensive. freedom from fear is a basic right of every american.
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we must restore it. >> the actual text of that video, the ad is not appeal to racial sentiments at all. we are seeing a woman walking down the street. if you are a viewer in 1968 and happen to imagine that an african american man is following that women, that might be just what is in your mind. that is not what nixon says. the nixon strategy in 1968 is plausible deniability on the issue of race. he's not stimulating aback lash sentiment. he seems to be talking a lot about crime and there seems to be an emphasis on the idea that african americans are criminal, but he does not really push the issue in the way that wallace does. there's a lot of overt racist rhetoric that we see from wallace. so these are perfectly accurate figures. in the late sixties and early seventies, there is a crime
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wave. there are riots in most urban areas in the u.s. starting in 64 and continuing through 68. every summer there are major riots. one time in new york. one time in l.a.. in newark, in rochester, so nixon is not inventing the crime issue. but the answer that he's giving is a kind of simplistic answer. >> you know how that compares to now in terms of a historic low? >> we will talk more about this when we get to the eighties and nineties. violent crime rate is way down from the sixties and seventies. the severity of these crimes as increased because the power of weapons has increased in some respects, but murder is down, armed robbery is down, muggings is down. this is a period which is a much more dangerous period if you want to use that. nixon is not inventing the
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issue, but he's presenting it in a particular frame. >> they did cause a problem? >> the other policy backdrop here is that after the assassination of king and the assassination of robert kennedy, congress pass is a crime control act. but the primary thrust of this act is a gun control measure, fairly weak gun control measure, but nonetheless a gun control measure. so from nixon standpoint, the underlying argument is johnson and liberals in washington are interested not in protecting this woman walking down the street. they are interested in protecting, they are interested in taking away or limiting the rights of guns for americans. nixon overwhelmingly winds. so johnson in 1968 had carried 44 of 50 states. but by 1968, nixon basically
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sweeps the country. wallace carries a handful of states in the south. the only southern state that humphrey carries was texas. all of this -- as all of this is going on, johnson is still trying to come up with a scheme to put a replacement on the supreme court. what he thinks is a possibility is to use the recess appointments power. this very obscure constitutional clause that was commonly used in the 19th century. it had started to fall out of fashion in the 20th century. it said that when there was a federal vacancy and congress was out of session on a recess, that the president could name a replacement that would serve until the end of the next congressional term. so what johnson is thinking in late october and early november of 68 for this vote is that maybe what i will do is congress is in recess, i will name a recess appointment as
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chief justice. it won't be fortas. we won't come up with a complicated scheme of a two for one replacement, but name a liberal. the liberal he seizes on is arthur goldberg, the former justice who had been driven out of the supreme court in 65. the hope was that if he named goldberg as a recess appointment and goldberg was in place when nixon became president, that nixon might be somehow pressured to nominate goldberg for a full term. the chances of that happening were not high. nixon figures out what he's doing. so almost immediately after nixon wins the election, nixon issues a public statement inviting earl warren to remain in place for the remainder of the term. basically saying he does not want a recess appointment. johnson concedes the game is up. he calls warren to complain about the situation. like his conversations with fortas, it's a quite improper
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call. we basically have johnson and weren't trying to come up with a scheme to replace him. this conversation is from november of 1968. this is the last time that lbj thinks of the possibility of a supreme court nominee. >> well, the press will be asking us what right does nixon have to say that we have committed that we will not name anyone. that leave me in a bad shape with goldberg. what we have said to goldberg is this. people have talked to me on his behalf. i don't think you could get confirmed, and i think it would be tragic for his life. but also, if there were evidence that i was wrong, i would certainly want to preserve the court if i could. and i would certainly regard him as a good appointment. >> so what i. >> that's my problem with him. so i don't think there's much
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chance, but i'm praying he's not going to understand what is happened here. he's going to be thinking that i've been playing knowing the whole time this might happen. so i hope you explain to him what did take place. >> again, a typical johnson call. the other person just not really getting much. but warren gets the message, he calls goldberg, he says we tried for this recess appointment but it did not work out. remain in place for the remainder of the term. he finally resigns in june of 1969, at which point nixon dominates this man, warren burger. a fairly consecutive judge from the eighth circuit which is based in the midwest, he becomes chief justice of the supreme court. so we replace a very liberal chief justice with a fairly conservative chief justice. so that creates a more conservative court. this is only nixon's first appointment.
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nixon will get to make for supreme court appointments in his first term. a significant turnover. the second is in unexpected one. justice fortas. so one of the great ironies is that by trying to promote fortas from associate justice to chief justice, johnson paves the way for fortas to collapse entirely and be removed from the court. we are late 68. the public has been exposed to this idea that it fortas is a little ethically challenged. we have this 15,000 dollar deal at american university. he seemed to be consulting with lbj inappropriately. it was clear this guy was not a paragon of ethics. and the press starts looking into fortas background. they have been rumors around fortas, that he was a very high priced lawyer. before he went on to the supreme court, so being a public servant cost him a decent amount in terms of
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finances. his friends would try to prop him up. and in 1969, it comes out that fortas had been accepting a retainer every year. a 20,000 dollar payment from a financier who was under criminal investigation. for those of you planning careers as supreme court justices, it's not a good idea to be accepting an annual payment from someone who is subject to criminal investigations. it is highly unethical conduct. but the irony is that this probably never would have come out but for the fact that the press had been prompted to look into fortas as a result of the 1968 fight. nixon starts sending out rumors that if he fortas does not resign, that republicans and conservative democrats will seek to impeach him. it seems not implausible that fortas would move from office.
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fortas could move that the integrity of the court is such that -- so nixon gets a wholly unexpected vacancy. this guy was appointed in 1965 who everyone assumed would stay on the court at least until the 1970s and now is out after four years. nixon goes to the justice department. in 1968, nixon had used the southern strategy. this idea of approaching racial backlash as a way of getting southern votes. but let me go back to the map. nixon doesn't carry some southern states. he loses texas to humphrey, he loses, and from arkansas, louisiana mississippi and georgia to george wallace he loses. so nixon's advisers say
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look, why don't we try to use this vacant supreme court appointment as a way of appealing to southern voters. showing them if they appeal to the republican already, the war in court was not popular in the south. so if they get a southern conservative out of the court, nixon believes that will be a way of bolstering southern support. and there seems to be quite a good judge from north carolina on a fourth circuit, which is an appellate court in the mid-atlantic states named -- . conservative judge, very pro business, very popular among north carolina republican types. republican nominee at a time when there were not many republican judges in the south. remember the south had basically been a one party democratic state area. the problem was that haynesworth actually has a pretty good judicial record, not a great judicial record. there are some
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rumors of ethical improprieties. he had a couple of votes on civil rights issues that civil rights groups perceived as not particularly supportive. a group of young liberals in the senate kind of embittered by what happened to abe fortas in 1968 decide they are gonna fight against haynesworth. ted kennedy, democratic senator from massachusetts, a very young ted kennedy. he had been elected to the senate in 1962 to take the seat that his brother had once occupied. kennedy is named to the judiciary committee, becomes a prominent figure on civil rights issues, one of the democrats point people for civil rights issues during the sixties. birchby, his son will later be a senator from indiana, governor as well from indiana.
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he served three terms from indiana, which is a very conservative state then and now. he was narrowly elected in 62, narrowly reelected in 68, narrowly reelected in 74, and finally gets crushed in 1980 by dunn died quail, who later pops up his george h. w. bush is vice president. but he was a very freethinker, even though he was a conservative state, he basically took liberal positions. he was a democratic activist on constitutional issues, and he is critical of haynesworth as well. so when haynesworth gets on the court, the result will be a string of anti-civil rights decisions. the striking thing about -- is not the kennedy and by oppose haynesworth, that is in some
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ways to be expected. it's that we have all of these red dots on the roll call. these are senate republicans who passed votes on haynesworth's confirmation. remember, it's still a time when we have common conservative republicans and liberal republicans. the last republican to get elected to the u.s. senate for new jersey, his last election was 1972, very liberal republican, more liberal than most democrats. jacob and the last of the new york liberal republicans, will stay on the setup for new york until 1980. margaret chase smith, republican senator from maine, declaration of conscious against joseph mccarthy, a fairly moderate republican as well. charles matthews, republican senator from maryland. basically, every liberal or moderate republican in the senate, and even a couple of conservatives. robert griffin, the guy who led the opposition to fortas. charles
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bedel, short term interim senator from new york state, his son is now commissioner of the nfl. the father was a more prestigious figure than the son. goodell had been appointed to the seat after -- assassination. his opening as a full turn to be elected in 1970, so haynesworth goes down in defeat 55 to 45. and nixon is astonished. nixon assumed that this was going to be a safe in, the fortas confirmation was a one-off. but it seemed that before this happened, they change the rules of the game. the senate became more willing to look at supreme court nominees with a degree of skepticism as we see over the next several weeks, that pattern continues at several points in the future. so nixon at this point has two options.
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the first is to take a look at this roll call and to conclude that this is a dramatically-controlled senate, the republicans are not in the majority. there are some liberal republicans, and to conclude that in that kind of senate, there's simply not the majority for a very conservative southern judge who might be perceived as hostile to civil rights. so nixon has to look elsewhere. that would've been a reasonable response to this vote. nixon of often did not take the reasonable response to votes, and this was an occasion where he did not. he goes to his aides where he says i want another southerner. if he's more conservative and haynesworth, that is fine. i don't particularly care, but it has to be another southerner if at all possible. so the justice department takes a look at appeals court judges from the south, the level below the supreme court. they don't find anyone who would be appropriate,
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who would be a republican, who's a southerner. and who would seem to be of a sufficient age to be in the supreme court. but they see there is a district court judge, the lowest level of the federal judiciary. from florida, the northern district of florida, jeanne harold was this man's name. they tell nixon, he's not perfect, he's not an appeals court judge, the traditional path for supreme court nominations. even at this point he would move from the appeals court to the supreme court. but they say he is a republican, he's very conservative. if you want to go with a southern conservative nominee, he is your man. nixon says that sounds great, we will nominate him. there are two problems with the nomination. the first is that haynesworth did have a couple of votes that were
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hostile to civil rights, but there was no indication that haynesworth was racist or personally hostile to african americans in any respect. and indeed he would stay on the circuit court after his defeat for several years and was well liked by both parties. you might have liked or disliked his votes, but he was not personally problematic. he on the other hand, before entering the do the judiciary had run for public office, not in florida, but in georgia. nixon's people hadn't pick this up, and in 1948, running for state legislature, he had delivered a speech saying that he was in favor of segregation forever. he disparaged the idea of racial equality for african americans. so if haynesworth is unacceptable because of his
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civil right positions, carswell will be worse. but nixon pushes senate republicans. he says you can't let the democrats do that to us twice. he said they blocked us with haynesworth, you have to stay with me on carswell. so he nominates he hopes that the votes for cars will might make it through. but then a second problem emerges. the district court opinions get appealed to the appellate courts. for the most part, district court judges get it right. you don't see tons of decisions that are overturned by the appeals court. sometimes it might be 15 or 20%. carswell on the other hand had seen his appeals overturned at a higher ratio than any other district court judge in the country as of 1969. and a lot of these were not cases where carswell was making an anti civil rights decision or ideological's decision and the court saying
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you can't do that. these were technical decisions where he seemed to be not understanding the basics of the law. there quickly emerged a consensus among both parties that quite apart from his beliefs, this was a man who was not particularly smart, and whether that was a particularly good nominee to be on the supreme court. this becomes crystallized in senate debate. the republican point person is a republican senator from nebraska named horaska.. his argument is that the mediocre people of the united states deserve representation on the court as well. this is a very peculiar argument for a supreme court justice. for senate republicans who had been inclined to go along with nixon, even though they didn't like
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carswell, swallowing this as an argument, that the mediocre are entitled to representation and that was a reason to nominate carswell, that was a bridge too far, and carswell goes down to defeat by a narrow margin. 45 to 51. carswell is gone. and if confirming the argument that critics made about his intelligence or lack thereof, carswell decides he will give up his life, tenured position on the judiciary, to run for the u.s. senate, from florida the following year in 1970. he is absolutely certain that he will become elected and he will become a prominent national figure, doesn't even get the republican nomination, and he's never heard again in political life. at that point, nixon concludes that, we're not gonna get a southern conservative in this particular environment. he goes to the justice department
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and he says get me a conservative who will be unacceptable nominee. so the justice department turns to harry blackmon. close friend of harry. he assures him that blackmon is a conservative, and will vote on the nixon way. he's the author of the roe v. wade decision. by the time he leaves in the 1990s, he's the most liberal member of the supreme court. so it's a reminder that these battles cannot lasting impacts. the country gets blackmon, a very liberal nominee and nixon's part. so nixon gets a second justice but it does not go as well as he had hoped. there are two final nixon confirmations. both come in 1971, almost back to back. justice john marshall
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harlan the second, grandson of the great justice harlan falls ill in the summer of 1971, resigns from the court and dies a couple of months there after. justice hugo black, appointed to the court by fdr in the 1930s, suffers a stroke in september, 1931 and dies a few weeks later. so just nixon all of us and has to vacancies. the justice department has found a southerner who would be acceptable. this man, louis powell. he's from virginia, a early conservative but establishment type, -- of the american bar association, so acceptable to senate democrats. he is easily confirmed. but nixon goes to justice and says look, what i want is a strong
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conservative. a principled conservative, someone who will fight for cover conservative ideas on the board. that is the first obligation. but the second obligation nixon says, ideally what we would like is someone who will help us for the 1972 campaign. this is late 1971, 72 campaign is gearing up. and republican poll suggests that a particularly soft area for democrats in 1972 are northern white ethnic voters who are concerned with issues like crime, the vietnam war, and what they see as the democrats being too friendly to hippies and to radical students and not concern enough with hardworking union voters. in particular, ethnic voters, polish voters, irish american, italian american, in new york city and chicago, in cleveland, in detroit and all these northern areas. so nixon presses the justice department to see if they can find a good,
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conservative ethnic nominee. and the problem here is that this is a point where for the most part, democratic voters catholic voters tended to be democrat. dwight eisenhower had nominated a day a catholic in -- some mixing gets on the phone to sort of press the justice department here is john mitchell, attorney general to see if there is an alternative to rank with, someone who might be very conservative but might satisfy ethnic political design. >> now the other thing, can i heard you [inaudible] oh cry snow, that's what i mean. >> [inaudible]
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>> [inaudible] you [inaudible] politically i got a lot more than a catholic. the protestants, if he's a conservative a catholic conservative is better than a protestant conservative. the point is it all mean more to
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he concludes there is no acceptable conservative catholics to nominate. and so rehnquist elected. rehnquist most closely fulfills is requirements, a good catholic, is very smart, he worked for very goldwater, he will remain on the court or the bush two years. he will eventually be elevated to chief justice by reagan. we will encounter him later -- over and over again over the course of the semester. what we essentially have is a transformation of the court from a very liberal court to a much more closely divided court with a strong conservative. rehnquist a fairly conservative chief justice. a moderate conservative in powell. blackmon will become liberal, but in the 70 sees more centrist or center right. they will drift left and then
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beginning of the mid seventies. they had assumed in the sixties that they controlled the court for another generation and the court could issue a series of definition -- decisions that would guard individual rights regardless of where the public was saying. but if you do not control the supreme court, you can't really rely on that as an approach. we will see that next time when we look at some of the social controversies of the 19 seventies. liberals struggle, once they no longer have the court, to figure out a way to advance their cause politically. any questions about this material? yes. >> johnson had obviously predicted that once he passed the civil rights bill's, that they would lose the south for 100 years. was that an open discussion? where did you just basically think that privately?
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>> that's a conversation that seems to have occurred with bill lawyers. but he never said it publicly. in fact, what johnson does, especially in the 64 election, continuing at least three 66, to try to come up with a new southern coalition. yes assumes correctly that democrats are going to struggle with white rural southerners. most of these people were critical of the civil rights movement in the sixties and these are people who vote for wallace in 68 and will vote overwhelmingly for nixon in 1972. george mcgovern, who was the democratic nominee for president in 1972, doesn't get 25% of the vote in mississippi, louisiana and alabama. but johnson does not think it is impossible that the south will remain democratic. instead, would you shopping for is to create a new coalition of african americans who now have the right to votes. he wants them to register and
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get out to vote. better educated urban whites, especially from prices like atlanta or charlotte or new orleans. he thinks they might be moderate, pro business, but he thinks they will be open. that is the coalition that has started to form to some extent in the last few years, especially in a state like virginia or north carolina. but in the late sixties and seventies, that coalition never quite forms. we will talk about this more next time, in part because urban conservatives, white conservatives in the south are just conservative. but also because there are tensions within this movement in the south, especially over issues around public schools, where african americans in the south are saying we want to go to integrated schools. if we have to have busing to achieve that, we will have busing to achieve that. you have well educated urban whites in the south who say, we
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want our kids to go to good schools. we don't want them bust halfway across town. so it turns out that johnson's hope that he might be able to create a narrow majority of whites and blacks to compensate for civil rights activism does not come to fruition. if johnson had been able to somehow run in 68, he probably would have been a stronger candidate than humphrey. he might have carried a few southern states. but the democrats are on their way out in the south. the only democrats who do anything in the south after lbj are jimmy carter in 1976 and bill clinton in 1992. these are both white democratic governors from the south, and they both are running during a typical years sort of. >> we saw a lot of clips today from the phone calls and everything.
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wow, i misstep. why did you give me this? we know the controversy around the nixon recordings. i was unaware that lbj was recording his phone calls as well. was there any backlash to that at all, maybe not to the nixon extent, but anything at all? >> this was unknown. kennedy also had recordings. kennedy, johnson and nixon where the president to extensively record. these are brilliant political minds. neither kennedy nor johnson or nixon realized that they are creating a record that could be subpoenaed. at this time, this is pre-watergate, these are the president's personal property to do with as they saw fit. so in theory, nixon could have destroyed the tapes. what johnson was taping for, kennedy taped for historical posterity. he wanted to use the recordings to serve as the basis for his
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memoirs. johnson recorded because johnson did deals on the phone. he was basically wanted commitments from people, so he wanted a record in case people would pack on him on his deals. he could say, look, you told me on september 22nd you would be with me. i have a recording of this. but no one else knew. so when the watergate hearings break and the nixon tapes are revealed, the assumption at the time is that the only person who -- the only president who had ever recorded was nixon. then it sheepishly comes out that johnson and kennedy had also taped. there's a small amount of taping of eisenhower, roosevelt and fdr, but it's in significant. for our purposes, these are incredible historical sources because they bring us inside the oval office. there are no president to take after nixon because they understand they could be subpoenaed.
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you could imagine other technologies. email in the late eighties and early nineties, apparently the bush administration did a lot with email because it's a new technology then and did not realize they were creating a permanent record. text messages in the clinton administration. again, you have this idea of creating permanent records. but we have no other tape. >> would you argue that nixon was a politician first and the president second? based off this argument, it seems like he was just trying to find out how can i get elected next? >> nixon is a foreign policy person. nixon's goal is to deal with foreign policy, foreign policy issues. in his mind, domestic matters, the goal of a domestic matter is to get him reelected. so he would not have done deals like this with domestic actors on china or the soviet union. that he cares about. who's on the supreme court? he doesn't particularly care as long as it will serve his
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political purposes. that is a pattern you see with nixon on a whole bunch of domestic issues, not just the supreme court. sure. >> isn't it interesting to see the integrity with the whole chief justices, the sitting justice being able to have a conversation about, he's basically being swayed in his decision. i guess that goes back to hamilton as well, what he thought the justices were supposed to be. it's kind of going far left. >> right. one of the things with the tapes, this is highly inappropriate behavior. fortas should not be having private conversations with lbj. rehnquist should not be cooperating to the degree with nixon, although rehnquist he does recuse himself from watergate. and you have to assume that these kinds of conversations occurred with truman and fdr and probably with eisenhower.
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it's just that we don't have recordings of these conversations. so to some extent we have moved towards a more ethical supreme court. it's highly unlikely for instance that in 2015, elena kagan would head to the naval office -- oval office and chat with president obama. but neither fortas or johnson see anything wrong with this kind of conduct in the 1960s. you have to assume, let's say there was a constitutional challenge to a johnson bill, could any of us really be confident that you fortas look at that dispassionately and say i think this is unconstitutional? so i'm going to vote against lbj even though i really like him. it does raise questions of partiality. >> this then comes tumbling down, this issue of judicial ethics, the next time with watergate. that is where we are at. quizzes and a couple of the midterms are up front.
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next on real america, president lyndon johnson delivers an oval office address to the american people on july 27th, 1967, to announce the formation of a national advisory commission on civil disorders, to investigate the causes of uprisings in many cities that summer. he also outlined his legislative efforts to address poverty and discrimination. >> my fellow americans, we have endured a week such as no nation should live through. a time of violence and tragedy. for a few minutes tonight, i want to talk about that tragedy. i want to talk about the deeper questions that it raises for us all. i am tonight appointing a special advisory commissio


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