In a private meeting at the White House on June 13, 1968, Earl Warren told Lyndon Johnson that after 15 years the time had come for him to leave the Supreme Court.
For the Chief Justice the issue was not health — at 77 he was as fit as a fiddle — but politics. The assassination eight days earlier of Robert F. Kennedy had wrapped up the Democratic nomination for Hubert Humphrey, and Warren believed the vice-president did not have a snowball’s chance of beating the Republican in the fall.
If he waited until the votes were counted in November, Richard Nixon would pick the next Chief Justice. To avoid that unpalatable possibility, Warren wanted to give President Johnson the opportunity to select his successor.
The unpopularity of the Vietnam War had forced LBJ to cancel his campaign for a second full term in a nationally televised announcement on March 31. To protect and preserve the domestic accomplishments of his Great Society programs, he needed to leave behind a sympathetic Supreme Court.
Johnson had just the men for the job. He would promote Associate Justice Abe Fortas and fill his vacated chair with Judge Homer Thornberry of Texas. Both were in their fifties and could be counted on for 20 or more years of loyal service. LBJ and Fortas went way back. They
LBJ and Fortas went way back. They had met in Washington in 1937, when Johnson was a first-term congressman from the Hill Country and Fortas was a Jewish lawyer from Memphis going to work for the Interior Department.
The two became fast friends and close political allies. Lyndon believed Fortas had the sharpest legal mind in the country and retained him as his personal attorney. As president, he made room for him on the Supreme Court by persuading Justice Arthur Goldberg to take the post of United Nations ambassador after the death of Adlai Stevenson.
The Johnson-Thornberry friendship was even older, dating back to the 1920s when LBJ’s father was a member of the Texas house of representatives and young Homer was a page. Thornberry inherited Johnson’s congressional seat after his election to the U.S. Senate in 1948 and was appointed by him to the federal bench in 1965.
Although aides doubted the wisdom of the Fortas and Thornberry nominations, which smacked of cronyism in some quarters, the president was confident that his influence in the senate would carry the day. Privately promised support by Sen. Richard Russell of Georgia, leader of the southern Democrats, and Sen. Everett Dirksen, Republican minority leader, LBJ went public with his decision in late June.
Dirksen, however, had his work cut out for him. Eighteen GOP senators, including Texas’ John Tower, declared their opposition to anybody Johnson chose on the grounds that a lame-duck president did not have the right to tinker with the high court.
White House staffer Joseph Califano suggested that maybe the best way to win confirmation for Fortas was to emphasize his liberal credentials. The president shook his head and reminded him of the unemployed schoolteacher, one of his favorite stories.
“Do you teach that the world is flat or do you teach that the world is round?” the chairman of the rural school board asked the nervous applicant. He thought it over and answered, “I can teach it either way.” That, drawled LBJ, was how to sell Fortas to the senate.
But by the middle of July, the Fortas nomination was in serious trouble. Sen. Russell had withdrawn his support in a fit of temper over alleged foot-dragging by the Johnson Administration in regard to his own candidate for a lower court. Far worse were newspaper reports of a conflict of interest with Fortas continuing to advise the president on everything under the sun after donning the black robe.
In an attempt to save his nomination, Fortas testified before the Senate Judiciary Committee — something no prospective Chief Justice had ever done. Grilled by the senators for three grueling days, Fortas played fast and loose with the facts and even flat out lied, according to one biographer.
He seemed to have survived the ordeal when the committee voted 11-6 to send the nomination onto the full senate. But as soon as the question came up for debate, the Republicans began a filibuster.
As Johnson and his crew scrambled for the necessary two-thirds vote to stop the talkathon, a scandalous bombshell blew Fortas out of the water. That very summer he had accepted $15,000 in cash from former clients to teach a seminar, a clear and inexcusable ethics violation.
“We won’t withdraw the nomination. I won’t do that to Abe,” a solemn Johnson said.
To save face for Fortas and enable him “to stay on the court with his head up,” the disappointed president urged staffers to shoot for a majority on cloture.
But on Oct. 1, 1968, only 45 senators voted in favor of ending the filibuster. Later that day at Abe Fortas’ request, President Johnson formally withdrew his nomination for Chief Justice of the Supreme Court.