Appointments to Supreme Court Have a Long History of High Drama

Chief Justice Earl Warren swears in John F. Kennedy on the cover of the Jan. 27, 1961, edition of Time magazine. This copy, signed by Kennedy, sold for $1,135.25 at a December 2012 auction.

By Jim O’Neal

On June 25, 1968, President Lyndon B. Johnson announced Chief Justice Earl Warren’s intention to retire and the nomination of Associate Justice Abe Fortas to replace him. However, after three months of acrimonious, partisan debate, the Senate refused to vote on the Fortas nomination. When Fortas asked the president to withdraw his nomination, Chief Justice Warren withdrew his resignation. “Since they wouldn’t confirm Abe, then they will be stuck with me!”

And, true to his word, Chief Justice Warren did not retire until June 1969, when President Richard Nixon replaced him with U.S. Court of Appeals Judge Warren Earl Burger.

In a bizarre twist, Justice Fortas had come under intense scrutiny and it was revealed that he had a questionable relationship with Louis Wolfson, the first modern corporate raider, according to Time magazine. This led to the resignation of Fortas – the first Supreme Court Justice to do so under these ethical circumstances.

Nixon was ecstatic that he would get to make a second nomination and he carefully chose judge Clement Haynsworth from the U.S. Court of Appeals-Fourth Circuit as part of a “Southern Strategy.” Congress seemed supportive, but to the president’s anger, frustration and embarrassment, the Judicial Committee found clear evidence of financial improprieties. Like Fortas, nothing illegal, but he went down 55-45 in a display of principled equality.

The president quickly countered with Judge Harrold Carswell, an undistinguished ex-District Judge with only six months of experience on the U.S. Court of Appeals. It was clearly an act of vengeance, intended to teach the Senate a lesson and downgrade the Court. Then, suspicious reporters dug up a statement to the American Legion in 1948: “I yield to no man in the firm, vigorous belief in the principles of white supremacy.”

Oops, there went the Southern Strategy, and the Senate voted him down.

It was another bitter defeat for the president, so Nixon turned North and picked Harry Blackmun of Minnesota and an old friend of Chief Justice Burger. He sailed through 94-0 and there would be no further vacancies for 15 months, when Nixon found himself in yet another imbroglio.

In September 1971, terminal illness compelled the retirement of Justices Hugo Black and John Marshall Harlan II, the two most influential figures and veritable giants of the law. Rather than a diligent search, Nixon tried the trial-balloon strategy and floated the name of U.S. Representative Richard Poff of Virginia, but his civil rights skeletons were easy to uncover and he withdrew. Then Nixon sent six nominees to the American Bar Association for review, but they quickly criticized them as manifesting “a relentless pursuit of mediocrity” and urged the president to “add some people of stature.”

In a dramatic television broadcast, Nixon revealed his “formal nominees” … Lewis F. Powell Jr. and a youthful (47) William Rehnquist (approved after three months of wrangling), who would serve on the court for 33 years – 19 as Chief Justice.

Whew! Next stop: March 20, 2017. Good luck, Judge Neil Gorsuch. This is a tough crowd.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

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Hector Cantu

Hector Cantu is editor of The Intelligent Collector magazine.

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