Excerpts from a 33-minute conversation in which President Johnson–unsuccessfully, as it turned out, attempted to employ a version of the Johnson Treatment on Jim Eastland, in the run-up to the Fortas/Thornberry nominations.
President Johnson: Jim, I called you about the Court thing, and about Warren. Warren has indicated that he wants to get off the Court. And I haven’t accepted his resignation, because I wanted to see where I was before I go into—
James Eastland: Well, I don’t blame you.
President Johnson: –a dozen jams. And I want to talk to you about the problem I have. My guess is I would recommend acceptance of his resignation, and naming Fortas as the chief justice.
Goldberg would like to go back on the Court. I think that that would give us problems with two uh . . . uh . . .
Eastland: I know it would!
President Johnson: And I just get that.
President Johnson: He [Richard Russell] called me the other day, he’s got a judge [Alexander Lawrence] down there, and I had Fortas examine him, to see whether the attorney general [Ramsey Clark] wouldn’t recommend him—he’s fighting. So I called [Clark] Clifford and Fortas in—both of ‘em are good judges, and both of ‘em are fair, Fortas is from Memphis, and Clifford is from St. Louis. And I figured they could be fair.
And they looked at it and studied it for a day or two, and came back and said Russell’s right and the Attorney General’s wrong. The lawyer [chuckles slightly] had said that the judges were “tyrants in black robes.” This was back in the ‘50s. And that’s all he’d said. All of them admitted they’d said more than that. Hugo Black had said more than that. They claim he’s one of the best lawyers in Georgia.
Eastland: He is. I—
President Johnson: So Fortas recommended that we appoint him and the Attorney General recommended against it, and I just had a fight about it. I got the FBI looking back into it now, and . . .
President Johnson: The question, I think, would be—I believe Dirksen will be for Fortas. He’s always been strong for him. I believe Hruska would be. I believe most of the Democrats would be. I think Russell will be. The question is: Where do I go from there?
Eastland: [unclear] Dirksen and Hruska.
President Johnson: Well, I haven’t got ‘em; I just believe that. But question, I think, is the associate justice who would take his place.
President Johnson: I’ve got to get somebody that I think would be satisfactory to all of ‘em, that wouldn’t make the Democrats too mad, and would be satisfactory to the Republicans. That’s a key vote, and you got to be a key man.
Or I could just refuse to accept Warren’s resignation, and let him go on. If Humphrey’s elected, Humphrey can name him; if Nixon’s elected, why, Warren could go on and serve it out. I don’t think I’d like to do that, but I could do it.
Eastland: No, do it yourself.
Eastland: And I think you can settle any kind of fight by appointing the right kind of man as associate. I think there’s a helluva lot of sense in that.
President Johnson: Now, we’ve got three or four that we are thinking of, and I want to talk to you about ‘em.
If we—it’s a California vacancy, and Tom Clark gave up the Texas vacancy. So we’ve got Texas and California.
There’s a guy on the circuit court from California named [Bejamin] Duniway. I don’t know anything about him, I don’t know if he’s any good. But he is a possibility. There’s a guy that used to be Hugo Black’s law clerk that they say is pretty extreme—a fella named [J.P.] Frank in Arizona that’s been recommended by a lot of the Bar as a brilliant fella. I don’t think I’d want to get him.
There’s a fella that they recommend from Alabama named [Frank] Johnson. I think he’s—
Eastland: I would oppose Johnson.
President Johnson: President Johnson: He’s . . . he’s—I don’t think you ought to have two from Alabama.
Eastland: I’d be—hell, he wants to go.
President Johnson: President Johnson: There’s Homer Thornberry from my state. He’s been on the trial bench, and circuit court. I think that he would make a good, reasonable justice, but I would prefer to go somewhere else—
Eastland: Well, I like Homer.
President Johnson: President Johnson: –if I could. He’s got a good repu—Dick told me he’d be his first choice, but he . . .
I could go with Cy Vance, who’s a helluva good lawyer, I’d have to pull him out of Paris. He’s 50 years old. He’s from this part of the country. I hate to take a Texas seat or a California seat and move it East.
President Johnson: I know that Homer would be very much like Tom Clark. I don’t think he’d be brilliant. I don’t think he’d be exceptionally outstanding. But they tell me that the lawyers like him on the court. He made a helluva good trial judge—
Eastland: Well, I like him.
President Johnson: And they say he’s got one of the best records in the Fifth Circuit. So—he could get by, I don’t think the liberal Democrats would get too mad at him. And Dirksen likes him very much—they used to . . . But I would be charged with cronyism.
President Johnson: Now, I could go to Vance . . .
President Johnson: His [Clark Clifford’s] first choice, I think, would be Vance. Fortas’ first choice would be Thornberry. Fortas says the Court is badly in need of somebody that has legislative experience. He’d like to have somebody that’d been in the legislature, somebody that’d been a judge, somebody that had been in Congress. He thinks that there’s nobody over there except Hugo that’s ever had any legislative experience at all, and he says most of the Court’s work is trying to figure out what the hell Congress wanted, and intended. That’s what Fortas told Clifford yesterday, in a meeting we had yesterday morning.
I think Warren would prefer Goldberg. As a matter of fact, he told me he would. I just don’t believe I could have Fortas as chief justice and bring Goldberg back.
Eastland: I don’t think so.
President Johnson: I just think that the Republicans would raise hell, and the Southern Democrats would raise hell. Of course, Goldberg will raise hell if I don’t do it, and—
Eastland: Not only that, I don’t believe the Jews would want that.
President Johnson: It would put ‘em under fire, wouldn’t it?
Eastland: Yes. That’s the reason made that this fella from Connecticut [Abraham Ribicoff] wasn’t attorney general.
President Johnson: I’ve got to find an associate justice that will suit you, and will suit Dirksen, and suit Mansfield, and suit Russell, and suit me—and the liberals won’t be mad enough to fight. Now, that’s about what it adds up to.
President Johnson: Somebody that we’re sure of. Now, there are not many of ‘em that I know what opinions they’ll render.
Eastland: If I was you, I’d get a good man [unclear] district judge.
President Johnson: You mean, get a district judge and put him on the Court?
Eastland: I mean, the associate judge.
President Johnson: Yeah! Well, that’s what I’d do. If I had my druthers, I didn’t have to bother with you, and Dirksen, and Mansfield, and all the liberals, and all the newspapers, and the New York Times, and all of ‘em, I’d name Homer Thornberry. Because I know goddamned well what he would do for the next 25 years.
And he’s been a trial judge, and he’s on the circuit court. And of course that’d give me hell with Yarborough; I’d have to have another fight over the circuit courtship down there. And . . . But that’s what I would do.
Eastland: Well, he’s a good man.
President Johnson: But won’t they holler “cronyism” and “Texas”?
Eastland: Yeah, of course they would.
President Johnson: I don’t know—[John] Tower made a speech that he wouldn’t support a lame duck President naming a Justice. [Robert] Griffin made a speech saying that, and Strom Thurmond made a speech saying that. And . . .
Eastland: It’s going to depend on Dirksen, though, and Hruska.
And I see in the paper that [Hiram] Fong said that.
President Johnson: I didn’t know that Fong had said it; I’m sorry to hear that.
Eastland: Well, it was in the paper this morning.
President Johnson: Well . . .
Eastland: You know, after all, in 1960, we approved damn few Republican judges.
President Johnson: Well, you think it’s better for us to try to get ours confirmed, or just not name ‘em? I’ve got all these circuit judges that they’re working up a list now.
Eastland: I think we ought to name ‘em. I know the Republicans are raising up except about the chief justice.
President Johnson: Mm-hmm.
Eastland: And that’s just [unclear]. Try to name ‘em, of course. I think you can name ‘em.
President Johnson: Well, as I see it, there’s about three things that look like to me are satisfactory, unless I take Clifford and mess up this Defense Department, unless I take Vance and mess up my Paris negotiations.
President Johnson: That I can see that we could do. One, I could refuse to take Warren’s resignation. Just say, “You just stay, and if Nixon’s elected, why, you just serve it out.” If Humphrey’s elected, you can get a new man. I don’t give a damn. I’m not a lawyer.
And I can do that, and I don’t know what he would do. They tried to get him—Hugo Black just begged him to stay, and he said no, he thought he ought to get off, and he was . . . He didn’t know how his health would be after—he’s 77, and he thought he ought to get off now.
President Johnson: And he wrote me a letter and said it’s his health. So it might be he wouldn’t want to do that.
The second thing, I think, the alternative to that, I think I could appoint Goldberg and just try to bull it through the Senate with . . . I don’t much want to do that.
Eastland: I don’t blame you; I wouldn’t want to do that, either.
President Johnson: The third thing I think I could do is try to get Tom Clark to come back and serve, and tell Ramsay to go on and practice law, you’ve just got six months. I don’t much believe Tom would do that, and I believe the country might look on it as a kind of Texas trick or something.
Eastland: I don’t think that—
President Johnson: A man would leave the Court and then come back on the Court. And that might be bad.
The fourth thing I could do: I could promote a man that’s been on the trial court and on the circuit court and been in the Congress for 15 years, never even opposed. And I think respected by everybody that knows him. I haven’t heard anybody say that they didn’t.
Eastland: I think so.
President Johnson: Homer Thornberry!
Eastland: I think so.
President Johnson: I think they’d just raise hell about being a crony, but . . . Those are the four choices that I’d see. I could go out and get somebody else I don’t know about, but I don’t want to get Dunaway, who I don’t know at all, or Frank Johnson, from . . . where they already got a justice. Or Scoop Jackson, where they got a justice from Washington.
You can’t have two justices from a little state, can you?
Eastland: No, I wouldn’t think so.
President Johnson: What would you do if you were me?
Eastland: [chuckling] Hell, I haven’t thought about this thing; I don’t know. I’d appoint the one I thought was best qualified and the closest friend of mine.