KC Johnson

The Fortas Nomination through LBJ’s Eyes

The unsuccessful attempt to elevate Abe Fortas to chief justice and appoint Homer Thornberry in Fortas’ place represented one of Lyndon Johnson’s greatest failures as President. The most recent release of LBJ tapes from the Lyndon Johnson Presidential Library provides a behind-the-scenes perspective on what went wrong with the nomination, and how Johnson, once the “master of the Senate,” was outmaneuvered by a coalition of Southern conservatives and Republican partisans.

Chief Justice Earl Warren set the process in motion in June 1968, with a peculiarly worded resignation letter stating that he would depart the Court upon “qualification” of a successor. Johnson immediately decided to elevate Fortas, who he had appointed to the bench in 1965. In this excerpt, he discussed with Fortas possible candidates to replace Fortas as associate justice. Ironically, the very existence of such a call illustrated a problem that would later dog Fortas’ bid—his service as an informal advisor to the President.

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I. The Nomination

President Johnson and Abe Fortas, 21 June 1968, 3.48pm, ref. no. 13128

I want somebody that I’ll always be proud of his vote. That’s the first thing. I may not be proud of his opinion, but I want to be proud of the side he was on. He may not be as eloquent as Hugo Black, or you, or somebody. But I want to be damn sure he votes right.


President Johnson: Now, you’re not ever going to talk to anybody: I just want your judgment, your evaluation. Now, I know you won’t agree with this in the morning. But if you were in my place, and you had to do something in a minute; you couldn’t think anymore, [other] than what you know about their record and their background . . . and each one of ‘em’s got problems.

[Cyrus] Vance has got serious health [issues], more serious money, which is why he had to go back [to private service]. But very serious health, because he can’t button his shoes now—and you don’t know what that leads to, paralysis, with another operation, or what.

[Clark] Clifford: who shows his age more than any man I know of, at 60, just shows it in his talking.

Ramsey [Clark]: who is young, and liberal, and, I think, would give me a serious political problem for the Court, because I don’t know—I might not get him confirmed. And I might not get my chief justice. I sure want to get him. I’ve got to have somebody that can carry the moderate and the Republican a little bit—just have a little appeal to ‘em, just for old times’ sake, or something.

[Henry] Fowler: he could do that, without any trouble.

[Homer] Thornberry has some disadvantages. I think the fact he was a congressman, a city councilman, a state legislator. I think that would be awfully good on the Court, and knowing every department of this government.

But from the standpoint of the liberal press, that just will not give me a fair trial—hell, I’d be nominated by acclamation on my record for civil liberties and civil rights—but the Times and the Post are against me, because they’re just anti-Semitic, by God. They’re anti-South. Just because I live in Texas, I don’t have style. And that’s the only thing they’ve got against me. I’ve adopted their platform, but Kay [Graham] let Ben Bradlee get her off, and she wrecked me, and—

[Three seconds excised under deed of gift.]

President Johnson: This goddamned New York Times, it never was. They just couldn’t stand me. I told [Scotty] Reston the first week I was President, “The way you all are writing, you just never can take a Texan. I know it, and I got to get my mandate, and get it over with damn quick, get my program, because it won’t run over nine months.” And it didn’t run much longer.

But Homer’s got to bear all that, having been a politician from the South. Now, he was never a wheeler-dealer, or a manipulator, that I’m supposed to be, because he was quiet, and unassuming, and regarded as the one Southerner that they could always depend on, and that all the liberals liked him, the liberals in the Congress, the wildmen, the [Vito] Marcantonios. And he was the one that would always protect ‘em from old man [Sam] Rayburn, when he’d get ready to eat ‘em up, he would go and talk him out of it.

And he was on the Rules Committee, and he was always the swing man, and he always brought out the administration votes—I mean, the Kennedy votes; he was there during Kennedy’s period, and Rayburn’s period during Eisenhower.

But I think that’d hurt him—Texas, and particularly the legislative background, being a politician. I think the lawyers might raise some hell about it.

Fowler—I don’t know, I don’t believe they can find what’s wrong with Fowler. I’ve been trying to think of it. I haven’t mentioned Fowler to anybody but one of my staff. I asked him what he thought. He said, “God damn, I’d hate to have to listen to him argue the other side.”

Abe Fortas: Hmm.

President Johnson: The only thing anybody’s got against Fowler—they all think he’s got a good mind, that he’s a good liberal, that he’s really conscientious, he helps us with AID and everything else, he has not lost an international conference, he has rewritten things two or three times, he brought through his paper money the day before yesterday, his Export-Import money yesterday, his tax bill last night; he just does everything. He comes through fine. He runs one of the tightest departments in the government.

Fortas: Mm-hmm.

President Johnson: He’s as logical as Clark Clifford—one, two, three. But he’s awfully boring listening to.

Fortas: [Unclear.]

President Johnson: Huh?!

Fortas: He’ll drive Bill Douglas off the Court. [Chuckles.]

President Johnson: Well, I think that might be . . .

Fortas: Bill likes him, though. But he’s just so damn tedious.

President Johnson: Well, he is! He’s tedious and methodical.

I’ll tell you what he does, though, this: if you give him 10 minutes, he quits in 9½. I have never seen him run over what you tell him.

Fortas: Is that right?

President Johnson: That’s right! But the way he says it, there’s something about it. It’s not—he has no intonation, no inflections, no “Goddamnits.”

Fortas: Yeah, that’s right.

President Johnson: Well, I know you’ve got to go, and I just got to get some more . . .

How are you going to rate these people—one, two, three, four, five?

Fortas: I—

President Johnson: From the standpoint of my practical problem, and what I may want to do here on all the other things. I’ve got geography, I’ve got the Senate, I’ve got these philosophies, I’ve got to have sure votes.

I want continuity, I want a little age—look at this not from your standpoint.

Fortas: Well—

President Johnson: Look at it from my standpoint, of knowing me as you know me, and what I want. I want somebody that I’ll always be proud of his vote. That’s the first thing. I may not be proud of his opinion, but I want to be proud of the side he was on. He may not be as eloquent as Hugo Black, or you, or somebody. But I want to be damn sure he votes right. That’s the first thing.

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The next morning, Johnson solicited advice from his close friend, Senate Minority Leader Everett Dirksen (R-Illinois). Dirksen and Johnson had worked well together during their joint tenure in the Senate in the 1950s; and again in the 18 months after Johnson assumed the presidency.

President Johnson and Everett Dirksen, 22 June 1968, 8.02am, ref. no. 13132

I want somebody that would be a sure vote in that respect. I think that law and order—the whole Republic is going to be determined on that. And I think we’ve got to have someone that’s moderate.


Dirksen: Well first let me ask you: does political affiliation have any bearing on the nominee?

President Johnson: Not—

Everett Dirksen: By that I mean—

President Johnson: not, not—

Dirksen: —do you’ve got a Republican slot or a Democratic slot?

President Johnson: Not in the slightest; not in the slightest.

Here’s our problem. Here are the fellows that I’m considering. Now, I’m going to make Fortas chief justice.

Dirksen: Yeah.

President Johnson: [with Dirksen assenting] I think he’s the best lawyer on the court, and I think all of ‘em agree with that, every one of them. I couldn’t make White; and I couldn’t make Harlan—he’s blind. There are really three of ‘em that are in bad shape: [John] Harlan is blind, [William] Douglas has got a bad heart, they got a machine in it, [Hugo] Black is 83, and he’s up in years.

I could bring [Arthur] Goldberg back, but most lawyers say they oughtn’t to be leaving the Court and going back on the Court, and I oughtn’t to have two Jews—one as chief justice, and another one back on.

Dirksen: That’s right.

President Johnson: That area, and that would give us a problem.

[with Dirksen assenting] I could put Ramsey Clark on. He’s able and tough, but he’s very controversial, and the liberals . . . he’s awfully liberal for me and you. I have just been fighting with him, and I have to . . . I’ve ordered him now to take the case of the head of the Communist Party of Utah before the Subversive Board. And he hasn’t done that yet. And I may just have to fire him; and I don’t want to make an issue. But he is awfully stubborn that way.

I could take [Clark] Clifford. He’s a very exceptional man, about the best you could find in any legal circle. But I would wreck myself as secretary of defense, and those eight months are awfully important.

Dirksen: I agree.

President Johnson: I could take [California senator Thomas] Kuchel, but I don’t believe I could get him cleared at all.

Dirksen: No.

President Johnson: Too liberal, and I told him already that you had demanded that I appoint him to a circuit court, but I didn’t know whether I could get it through the Bar.

Dirksen: Yeah.

President Johnson: [with Dirksen assenting] But that you always looked after your crowd . . . I couldn’t resist your demand. And he cried, and he just . . . I said . . . when I talked to him yesterday, I told him to get you down here, if he demanded it, and I said he did, and I said the amount of Democrat lawyers, a lot of ‘em will raise hell, but I’m going to name you, so I’ve got that behind me.

I could name Dick Hughes. He’s the governor of New Jersey. It would give me two Catholics, though, from New Jersey. [Justice William] Brennan’s from New Jersey, and Hughes is from New Jersey.

I could name [Cyrus] Vance, who is an exceptional lawyer. I don’t know what party he belongs to; I think he’s strictly independent. He’s never shown any partisanship one way or the other. He gets along with everybody. He’s tough, able, one of the finest lawyers I’ve ever known. He was . . . But I sure do need him with [Averell] Harriman over there [in Paris]. I’m not making a damn bit of progress, but . . .

I talked to Mike [Mansfield] and Dick Russell. They both think very highly of Vance.

I could name [Homer] Thornberry; he’s the best judge. He’s Dick Russell’s first choice. And he was Abe Fortas’ first choice. He was a congressman. He was [Sam] Rayburn’s best advisor with young people, and he’s kind of his contact, kind of like [Nebraska senator Roman] Hruska helps you, or someone, when you need a little rounded up. He was Rayburn’s man.

He went on the federal bench, and made a hell of a record. He went on the circuit bench, and he’s regarded as just about the best judge in the circuit, and the Fifth Circuit has done a good job, generally considering.

Fortas thinks—and Tom Clark, both—that Thornberry is the best we have. I’ve not talked to Tom Clark about him on the Supreme Court, but he thinks he’s the best judge we have produced.

Henry Fowler is an awfully good lawyer, and has been here—given his life to the government. He’s broke, and poor, and got a gall bladder, and he just . . . He’s never lost a fight, though—he stays with ‘em till he wins them. He’s a prudent man, conservative man, but diligent and patriotic, and has got a quality that you and I got—he’s loyal to his friends. He’s not an extremist. As a matter of fact, he’s kind of a right-winger in my cabinet of them.

Now, those are the ones that I have thought of, that I have obligations to, that I have great respect for, that . . .

All of ‘em have something wrong with them, one way or the other. I mean, I don’t want to take Vance away; I’d have to get a new secretary of the treasury; I’d have a Republican governor of New Jersey. Things of that kind. I’d have two Catholics. Or I’d have two Jews. All of ‘em would give me problems, and I don’t want any problems. I don’t want . . .

I want a moderate man on the Court that wouldn’t tear up all that I have done; at the same time, would be a little bit stronger, would be kind of like Tom Clark was on law and order.

Now, [Thurgood] Marshall’s told me he would do that; I don’t know whether he will or not. I’m looking for him to hand down some.

Fortas is going in that direction. He’s put out a book on the [unclear]. He says a man can protest a segregated library, but he can’t throw himself in front of a car, burn a flag, or burn a draft card, or endanger somebody’s life. He’s been the strongest one that way.

But I want somebody that would be a sure vote in that respect. I think that law and order—the whole Republic is going to be determined on that. And I think we’ve got to have someone that’s moderate.

Of all of them, from that standpoint, it would be . . . I wouldn’t consider Kuchel much there, and I wouldn’t consider Ramsey much there. Thornberry and Vance and Fowler would be the three better ones.

[Break.]

President Johnson: What do you think of these folks—which one of these would you favor?

Dirksen: Well, I remember Homer, of course. And I was glad to note his progress through the judiciary over the years.

I like Cy Vance. He’s really a remarkable guy.

President Johnson: How would you rate the Vance, Thornberry, Fowler, in that group? I don’t much think I could take Clifford away.

Dirksen: No, I wouldn’t.

President Johnson: I don’t much think I could take Kuchel.

Dirksen: No, no.

President Johnson: Although California has a little call on it. We’re taking a Texas seat, and a California seat, you see? We gave up Clark—

Dirksen: Yeah.

President Johnson: —and we gave up Warren, and we’re taking those seats. But . . . Fowler would be from Virginia. Vance from New York. Thornberry from Texas.

Now, I guess I’d be charged with cronyism from Texas.

Dirksen: Oh?

President Johnson: Because Thornberry’s a friend. Just like you’re a friend.

Dirksen: Yeah.

President Johnson: [with Dirksen assenting] But they talk about wanting a trial judge on the Court. He’s been a trial judge for a good many years, he’s been a Circuit Court judge, and he has been a successful one. And all the Bar rates him—he’s on all their committees.

Vance is a superior lawyer. He’s one of the biggest firms, and one of the best in the country. Kind of the executive partner in it.

Dirksen: Yeah. Would he like it?

President Johnson: I have no idea. I have no idea whether either one of ‘em would take it. I haven’t talked to anybody but Mike Mansfield and Dick Russell and you.

Dirksen: Yeah. Well—

President Johnson: I want to just get the feel here, because I damn sure don’t want any trouble on confirmation.

Dirksen: I would rate them in this order: I think I would put Vance at the head of the parade, then Homer, and then Fowler.

President Johnson: [softly] Yeah, all right. Don’t say anything about it—

Dirksen: No.

President Johnson: –and if you think of anybody else, call me.

Dirksen: Yeah.

President Johnson: OK.

Dirksen: Fine.

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If the President remained at least nominally undecided as to whom he would select to accompany Fortas, he was very clear that one possible nominee he definitely didn’t want: future Watergate special prosecutor Leon Jaworski.

President Johnson and Abe Fortas, 21 June 1968, 3.48pm, ref. no. 13127

I really rather think that I’m for the people. And if I can find where it is, I think that’s where I go. But . . . [chuckling] Sometimes I get lost down the road, and get in the wrong pasture. But, I’m searching.


President Johnson: I don’t know anything about it, but everybody tells me he’s a helluva good lawyer. I don’t see it when he’s talking to me. He talks to me kind of like a puffed-up powder pigeon, looks like one.

Abe Fortas: Yeah.

President Johnson: I’d just like to stick a hat-pin in him and listen to him ooze.

But everybody tells me, that’s in the courtroom with him, that by God, when he goes in the courtroom, he takes the number, he just takes the match. And they say he is a real whiz in these commissions. I’ve had him on three or four, and everybody comes back and recommends him—the liberals so, all of ‘em do.

[Break.]

President Johnson: He’s a doer. God damn, he goes and gets it. He goes right with it. And he . . .

The one thing I don’t see about him—in my contacts, in my conservations with him; I had lunch with him yesterday—I do not see any depth of conviction.

Fortas: Yes.

President Johnson: I don’t see any liberal philosophy or any conservative philosophy.

Now, we had a race down there for attorney general [in 1966]. We had the goddamndest radical in the state, named Spears, Franklin Spears. His daddy was a goddamned Boll Weevil lawyer from South Carolina that came down there that had a year-long twang to his voice. Got elected to the state Senate, and he was a real wildman. Just liberal as a March hare. He was one vote in the Senate worse than Wayne Morse. He died of a heart attack.

And his brother Adrian became a damn good lawyer, and I named him federal judge. Then his boy—Franklin’s boy—became a state senator, and he was just the wildest thing. Much wilder than Ralph Yarborough, and so forth. And he took in after everybody. By God, do you know who financed him? Leon Jaworksi! [Fortas laughs.] And he lost it [in a runoff to Crawford Martin, who was supported by John Connally]. But by God . . .

I asked him one time why, and he said, why, he liked the boy, and the boy had great promise, and he believed the boy was doing what he thought was right, and said, “Then, besides, I have obligations to Adrian, the federal judge.” [Chuckles.]

Fortas: Oh.

President Johnson: He said, “I’ve always thought he was a good judge.”

Fortas: Ooooh! [Both laugh.] Yeah.

President Johnson: And he had worked with him in the Bar Association. He doesn’t practice—Adrian’s in the Western District that’s down there, and most of Jaworski’s in the circuit court, or in the Houston area, the Southern District.

But he said that he had to work with Adrian in the Bar, and had obligations to him, and friendship, and said that “I have to stay with my people.” He didn’t do it from conviction—but he’s the wildest man—so it shows that liberal stuff’s not anathema. He’s not afraid of ‘em. He’ll appoint ‘em. He’ll want to make ‘em attorney general, and then, by God, want to make him governor. He just . . .

But what worries me is he doesn’t seem to have either philosophy.

Fortas: Yeah.

President Johnson: Now, I think a lot of people are worried that I’m the same way. But I really rather think that I’m for the people. And if I can find where it is, I think that’s where I go. But . . . [chuckling] Sometimes I get lost down the road, and get in the wrong pasture. But, I’m searching.

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With only a few days of even superficial consideration, Johnson confirmed to Dirksen he had selected Thornberry. The President’s lame-duck status would have made any appointment difficult—but, in retrospect, the decision to accompany Fortas with a former Texas congressman doomed both nominations. At the time, however, Johnson believed that Thornberry’s nomination would ensure Southern support for both picks.

President Johnson and Everett Dirksen, 25 June 1968, 4.53pm, ref. no. 13140

Of course, they’ll say I’m a crony. But am I supposed to nominate somebody the St. Louis Post-Dispatch says is a great man that I don’t know?


President Johnson: I’ll tell you what I think we’ll do. I think I will accept [Earl] Warren’s resignation, upon the qualification of his successor.

Everett Dirksen: Yeah.

President Johnson: I will name Fortas to succeed him, if the American Bar clears him, and they think it’ll be exceptional, and they’ll be pleased. We’ve got to talk to them. I’m going to name Thornberry, then, to be associate justice.

Dirksen: You’re going to name Homer?

President Johnson: Yeah. I’ve got two problems here with the others. I’ve got [Joe] Fowler has got all of his travel, his tourist stuff pending, but the main thing—he’s got his tax bill, he’s got his International conference thing, that he’s been working on. I can’t get a . . . I don’t want a new secretary—

Dirksen: Yeah.

President Johnson: —with all the tax reform that’s coming up—

Dirksen: Of course not.

President Johnson: Under the law, I’ve got to prepare the tax reform.

Dirksen: Yeah.

President Johnson: [with Dirksen assenting] And I’ve got to get into oil and depletion, and all these other things, and I just can’t bring a new man like [former CEA chairman] Walter Heller or somebody into that job on four months. They will say “cronyism.” But Fowler is a bigger crony, and I’ve known him much longer than I have Thornberry. I’ve known Fowler since Roosevelt’s day. He sits with me every week, four or five times a week; I haven’t seen Thornberry in eight years.

Thornberry practiced 18 years, tried cases every day. And the Bar says they want somebody that has judicial experience. He acted a prosecutor, elected by the people, for many years. Then he belonged to the best law firm in the state for many years. Then he came to Congress, six terms, had no opponent. And I think he is friendly with nearly every member of the Senate. Dick Russell told Eddie Weisl this morning (who’s Cy Vance’s partner) that in his judgment, Thornberry had more friends in the Senate than anybody else.

He has served as a federal district judge—not by my appointment, by Kennedy’s appointment. I haven’t seen him—I’ve never been in a courtroom with him. I haven’t spent two hours with him since he was appointed.

Then he served on the circuit court; there wasn’t a single opponent against him when his name come up; he’s now on the circuit court. Justice Brennan told the Chief Justice, according to the Chief Justice, that when he went to the Law Institute, the university they operate for judges in New York, that Thornberry was one of the instructors, and that he was shocked to find that he was the ablest instructor in the school.

Now, the Bar says they want lawyers with judicial experience. They’ve got one with federal law court experience, they got one with circuit court experience, and damned if I believe the Congress is just going to say because a man served in Congress, he’s no good.

And they got not one thing against him. They’ve confirmed him for the federal district court, and for the circuit court—

Dirksen: That’s right.

President Johnson: —without any question. Now, if—I don’t know what they can find with him. His character’s all right.

Dirksen: Yeah. Oh, yeah.

President Johnson: They like him. And, of course, they’ll say I’m a crony. But am I supposed to nominate somebody the St. Louis Post-Dispatch says is a great man that I don’t know?

Dirksen: Yeah.

President Johnson: Am I supposed to nominate somebody for Tom Clark or Warren’s place, those two have gone, and go out and name somebody from New England that I don’t know?

Dirksen: Yeah.

President Johnson: I think I’m in a hell of a lot better shape nominating somebody like you or Homer than I would be, by God, with somebody I didn’t know.

Dirksen: Oh, it’s easily defended.

President Johnson: It sure is.

Dirksen: OK.

President Johnson: And if you—will you go with me on Fortas and on Thornberry?

Dirksen: Yeah.

President Johnson: OK. We’re gone. Good-bye.

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II. Problems

Problems emerged for the President almost immediately: the Senate of 1968 was not the upper chamber that LBJ had known—and mastered—so well. The 1966 elections brought to the Senate a new cohort of aggressive Republican partisans, including Michigan senator Robert Griffin and Tennessee senator Howard Baker (Dirksen’s son-in-law). Newly elected Republicans saw Dirksen as overly inclined to compromise; and the Illinois senator, in ill health (he would die in 1969), increasingly lost power over his caucus.

The tumultuous battle for the Democratic presidential nomination—which remained undecided at this point, following the assassination of Robert Kennedy—left Republicans confident of victory in the 1968 presidential election. Accordingly, Griffin demanded that Johnson make no nomination for chief justice, and instead allow the winner of the 1968 election—likely Richard Nixon, of course—to make the choice. He issued a public letter making the point signed by 17 GOP colleagues, prompting LBJ to call Dirksen.

President Johnson and Everett Dirksen, 27 June 1968, 3.57pm, ref. no. 13147

I can’t understand [Howard] Baker, though. That Tennesseean is strong with us, and the Commercial Appeal’s with us, and Tennessee is Fortas’ [native] state, and all of his family and folks live there, and every Jew. He’s a young man, going to be running the rest of his life, and voting against the first Jewish chief justice. I can’t understand that.

President Johnson: Now, you see, what I could do to show you how unfair these folks are—[Robert] Griffin and them—all I have to do is tell Warren to go on to California until August, and send in your resignation then. Then I’ll just make a recess appointment.

Dirksen: I told them that.

President Johnson: And Fortas would be there. Now, Fortas is going to be on that Court. John McClellan and them are not going to change him. Whether he sits on the right side of the table or the left, he’s going to be there. The only question we’re talking about is whether you’ve got Thornberry or Warren.

Dirksen: Yeah.

President Johnson: And I don’t think I’m liberalizing the Court with Thornberry, trading him for Warren; I think I’m improving the damn Court.

Dirksen: [answering earlier LBJ comment] No . . .

President Johnson: Fortas is going to be there anyway.

Dirksen: Yeah.

President Johnson: Now, they tell me that they’ve canvassed this thing pretty well, that we don’t have a man that’s out of the South that’s not for us.

Dirksen: No.

President Johnson: And enthusiastically for us—

Dirksen: Right.

President Johnson: –except one or two that we haven’t been able to contact.

[Break.]

President Johnson: Who has signed that damn letter [of Griffin]?

Dirksen: Huh?

President Johnson: Who has signed it?

Dirksen: I don’t know who. [Unclear.]

President Johnson: Well, somebody told me [Frank] Carlson was on it.

Dirksen: Yeah? Well, that I don’t know. But if he was, I will certainly go and see him and take it off. After all, he’s not going to be around here [in 1969].

President Johnson: Not at all, and I have been with him on everything that, by gosh, a human ever could, from his prayer breakfasts on.

Dirksen: Yeah.

President Johnson: [with Dirksen assenting] I can’t understand [Howard] Baker, though. That Tennesseean is strong with us, and the Commercial Appeal’s with us, and Tennessee is Fortas’ [native] state, and all of his family and folks live there, and every Jew. He’s a young man, going to be running the rest of his life, and voting against the first Jewish chief justice. I can’t understand that.

Dirksen: Yeah, that’s right. Well, Hickenlooper, of course, was much of an instigator of all this. Because I had a session with him yesterday afternoon. But he’s not going to be here [in 1969] either!

President Johnson: [softly] I’ll be damned.

[Break.]

President Johnson: Well, you see, if he [Warren] hasn’t resigned, and he resigns, and they don’t act on Fortas, I would imagine I could just name Thornberry Chief Justice.

Dirksen: You sure could, if you wanted to.

President Johnson: And Fortas would just stay where he is, and then where would they be?

Dirksen: Exactly.

President Johnson: I don’t think Thornberry would be as brilliant a chief justice—

Dirksen: No.

President Johnson: –but he’d be a damn good one. Now, don’t you think he’s a dumbbell.

Dirksen: He isn’t.

President Johnson: OK. Fine. Good-bye.

Dirksen: [answering earlier LBJ comment] I won’t.

President Johnson: All right. Stay with me.

Dirksen: I will.

——————————————

GOP partisans weren’t the only senators opposed to Fortas’ selection. The rulings of the Warren Court—to which Fortas had consistently joined after 1965—enraged Southern conservatives. Southern Democrats exercised disproportionate influence on the Senate Judiciary Committee, beginning with chairman Jim Eastland (Mississippi) and including senior members Sam Ervin (North Carolina) and John McClellan (Arkansas).

Johnson had hoped the Thornberry nomination would assuage Southern concerns with Fortas. In this call, he urged the FBI’s congressional liaison, Deke DeLoach, to woo Eastland and McCllelan on the matter.

President Johnson and Deke DeLoach, 1 July 1968, 5.02pm, ref. no. 13202-3

Fortas is going to be there one way or the other; he’s just going to sit on one side of the table or the other. He can’t be changed—he’s going to be there as long as he lives.


President Johnson: Fortas is going to be there one way or the other; he’s just going to sit on one side of the table or the other. He can’t be changed—he’s going to be there as long as he lives.

Deke DeLoach: That’s right.

President Johnson: Now, the question is whether Warren goes and Thornberry comes on. Now, between Warren and Thornberry, you can’t tell me that Thornberry ain’t a hell of a lot better for Dick Russell and John McClellan and Sam Ervin than Warren is.

DeLoach: That’s right.

President Johnson: Russell told me that he was going to support Thornberry enthusiastically. But I think if they knew Edgar [Hoover] thought well of him, and what he did there, if you look at that decision, Miranda—why, he goes a little bit further than some of ‘em thought he ought to go, and I sure think you ought to call that to McClellan’s attention, and tell him that he’s an old deputy sheriff, that he’s an old prosecuting attorney—

DeLoach: Yes, sir.

President Johnson: –that he’s a trial judge, and he’s never shown any leniency on it.

DeLoach: Right.

President Johnson: See if you can’t do some good there, and let me know what results you can get out of those three.

DeLoach: I’ll do it.

I talked with the Justice about 30 minutes this morning. I wanted to mention to him some dirt that some of the journalists around Washington are trying to dig up on him, trying to indicate that he paid Walter’s expenses when Walter [Jenkins] was over at George Washington hospital [in October 1964]. [The President chuckles ruefully.] And also that he tried to cloud over the situation involving Walter. I told him I could fix that up, where they mentioned that, because it was a lie anyhow, and I’ve been successful in doing that.

I’ve also made an appointment with John McClellan—

President Johnson: Who is this—Fortas or Thornberry?

DeLoach: That’s Justice Fortas.

President Johnson: Yeah.

DeLoach: Yes, sir. I talked to him this morning.

I’ve made an appointment to see John McClellan tomorrow, and I’m also going to handle [California GOP senator] George Murphy and [South Dakota GOP senator] Karl Mundt.

President Johnson: Do that, and for God’s sakes, really work on Ervin and McClellan. You all got any influence with Ervin?

DeLoach: No, sir; none at all, to tell you the truth.

President Johnson: Well . . .

DeLoach: But I’m certainly not afraid to tackle him.

President Johnson: No, no. If you haven’t got it, don’t do it. But just work on it with McClellan.

——————————————

III. The Committee

Breaking with precedent, Fortas personally testified before the Judiciary Committee; conservatives treated him with open hostility, sharply questioning him both on the warren Court’s decisions and on his allegedly improper ties to Johnson after he came onto the Court.

But Fortas encountered even more problems after committee renegade Strom Thurmond, the South Carolina Republican and the Senate’s most vitriolic foe of the Warren Court, invited a figure named James Clancy, head of “Citizens for Decent Literature,” to testify. Clancy criticized Fortas’ votes against laws outlawing pornography as part of “a set of decisions by the U.S. Supreme Court which completely throws caution to the winds, and is an open invitation to every pornographer to come into the area and distribute millions of copies—and I am not exaggerating—millions and millions of copies of what historically had been regarded in France as hardcore pornography.”

Clancy highlighted one ruling, a one-sentence 5-4 decision, Schackman v. California, which overturned the decision of a lower court denying 1st amendment protection to a film called 0-7. Clancy shared with interested senators the film in question—prompting this concerned, and occasionally hilarious, call between the President and Florida senator George Smathers (one of only three Southern senators to back the Fortas nomination).

President Johnson and George Smathers, 25 July 1968, 11.30pm, ref. no. 13218

Now, you get a real nut like Strom Thurmond, who up until this point hadn’t really made much sense . . . there are just enough people that will fall for a line like this, that it worries me, very much.


George Smathers: The Supreme Court, by a 5-4 decision, which they did not write an opinion, but the Court itself—it’s what they call per curiam, by the Court. They just ruled 5-4 that it was all right. And they, apparently, looked at the film.

Now, that was all right till the damn thing—Strom Thurmond, and this Committee for Decent Literature, and so on, decency—got hold of the damn thing and began to circulate it around. Strom Thurmond got a hold of it. And he invited (Strom did) the newspaper people to come in and look at it with him. And it’s one of those things.

So, here it is, Fortas is lined up having voted for this circulation, or the allowance of the circulation of this thing, pornographic movie. So what happened is a lot of guys that don’t want to be recorded as for, that are looking for some reason to be against him . . . I’ve seen a number of fellows who have been talking about it –a number of senators are talking about it: “You know, God, I can’t be for a fella that let this kind of literature out on the newsstand, and be showing it.” As usual, they are making a lot of exaggerated statements in connection with it—such as, that it was being shown in public movies, and it’s your mother and your sister and your daughters, and everybody to go see this damn thing.

Well, because there was no real opinion written by the Court, it’s really, it’s difficult to know exactly what they were saying. There are five cases in this area, having to do with obscenity and pornographic stuff. And, frankly, Abe had voted in each instance that it was a violation of free speech to limit this.

Now, you get a real nut like Strom Thurmond, who up until this point hadn’t really made much sense . . . there are just enough people who will fall for a line like this, that it worries me, very much. And they’ve invited Abe back to talk about it, and I just think that—frankly, my first reaction is that he just ought not to come. And just see . . .

And my other reaction is at the moment—[Michigan senator] Phil [Hart] went to see the movie. I said, “I’m not going to see the damn movie, because I want to be in a position to say, as far as I’m concerned, I don’t look at any kind of goddamned pornographic stuff. It’s all over the streets, and always has been. And it’s a man’s choice. And I choose not to look at it. But others may choose to look at it. And if a fella wants to look at it, why, the Court’s voted that he can. That’s a matter of choice.

I don’t look at it. I haven’t seen it, so I’m not passing judgment on whether or not this is the kind of thing that should be shown around, or shouldn’t. Now, Phil’s view was that probably you should see it. And he didn’t think it was so bad, although when he told me that, “I’ve seen many just like that, and I’m sure most every fella just has, everyone belonging to sort of a man’s club.”

President Johnson: [The President chuckles.] Mm.

Smathers: But they’re really making a big thing out of it. Now, of course, a poor fellow like Bob Byrd of West Virginia, and [Virginia senator William] Spong hasn’t said what he’s going to do, but I heard him agonizing about it. It’s sort of a marginal thing. And I really think it’s pretty dangerous, insofar as Abe’s concerned.

President Johnson: Well, you ought to tell him that. You ought to tell Paul [Potter] that.

Smathers: Well, I tried to reach Paul today; I couldn’t get him. Just to tell him, my God, they better think hard as to what the answer is, because this is a really tough one. John McClellan, who heretofore had not opened his mouth pretty much about Abe, has now come out very strongly; and in the meeting yesterday, when Phil [Hart] made the motion that we take up for consideration Fortas, and Eastland just shot it real quick, well, God damn, he did say, “John, Senator McClellan has asked that it go over for a couple of weeks.”

So, then . . . I’m sitting there, I’m the junior member on that committee; and I finally got into it, and said, “Now, I want to understand; we’re using up the week, the courtesy week, is this what John’s asking for?” Well, John starts preaching about this movie, that he had seen, with Phil Hart, and with [Nebraska senator Roman] Hruska, I guess it was. (Oh, it wasn’t Hruska; it was [Hawai’i senator Hiram] Fong, I guess it was.)

But anyway, they were all, seemed to be pretty well shook up by it—not all of ‘em. John was, but Phil Hart wasn’t. John was preaching, and ranting and raving about how this kind of thing was ruining the life of his grandchildren, and everybody else. He wanted a long time to look into this, and he was going to look into it very deeply.

President Johnson: He ought to go see this Graduates [sic]. [Chuckles.]

Smathers: That’s right. Well, anyway, the only thing I was able to get, the contribution I was able to make, was that this was technically the use of the one week, so that could not be asked for again. And I finally got that established that John was really . . .

President Johnson: Well, will you vote on it next Wednesday?

Smathers: So, we’re due to vote on it next Wednesday.

President Johnson: Well, won’t they filibuster it?

Smathers: Yeah. They’re going to filibuster it again.

President Johnson: In the committee?!

Smathers: In the committee. That’s what I think is going to happen—they’re going to filibuster it in the committee.

President Johnson: Well, can you just do that, constantly?

Smathers: Well, with the cooperation of [Jim] Eastland, I don’t know how you’re going to stop it. If [Mike] Mansfield would just let us meet, and then just agree that this—have the Senate go out right away, so that they can’t make a point of order, we could just sit there. I’m prepared to sit there, and I think others are.

President Johnson: Well, wouldn’t he just adjourn the committee, then?

Smathers: I don’t think that he can just summarily adjourn the committee. I don’t . . .

President Johnson: You better talk to Hart, and get some strategy, and I’ll talk to you tomorrow.

Smathers: All right. OK, sir.

—————————–

As the committee filibuster persisted, Johnson tried to up the pressure on Dirksen to deliver Senate Republicans. But while he remained a Fortas supporter, the Minority Leader was beginning to distance himself from the nomination.

President Johnson and Everett Dirksen, 27 August 1968, 11.15am, ref. no. 13323

I can’t take charge against Jim [Eastland] and Sam Ervin and John McClellan, because they’re all—and Strom Thurmond—they’re hostile.


President Johnson: So what’s this I hear about you pilling in your horns on Fortas? I thought we were going to confirm him.

Everett Dirksen: I didn’t pull my horns.

President Johnson: Well, they said your staff said that you were going to be gone, and that you couldn’t do much more, that that—

Dirksen: Oh, no.

President Johnson: –Fortas wouldn’t be confirmed, and—

Dirksen: I’ve just got a few days set for September, but I’ll be here.

President Johnson: I told Fortas and these folks that you were going to see he’s confirmed, and, by God, I want you to stand up there and slug it out.

Dirksen: Yeah. I don’t know what the hell Jim’s intentions are—

President Johnson: Well, why don’t you take charge and find out?

Dirksen: [Chuckles.] I can’t take charge against Jim and Sam Ervin and John McClellan, because they’re all—and Strom Thurmond—they’re hostile. And, of course, Fong is hostile too, as you know. So, I just take it in the stride. By the way, while you’re on—

President Johnson: Well, are you less optimistic than you were?

Dirksen: Huh?

President Johnson: Are you less optimistic about Fortas than you were?

Dirksen: Well . . .

President Johnson: Do you think these folks want [Earl] Warren to go back on that bench?

Dirksen: Huh?

President Johnson: Do you think they want Warren to go back?

Dirksen: Oh, Christ, I don’t want him to go back.

President Johnson: Now, you think they do?

Dirksen: I don’t know. I don’t know. That’d be the greater evil, God knows. And I’m going to stay, and I’ll do my best.

President Johnson: OK. All right.

—————————————-

After more than two months, the committee finally reported the nomination to the floor, where Griffin and Southern Democrats promptly promised a filibuster. Republicans, meanwhile, were continuing to hammer Fortas over his status as a Johnson advisor, prompting Eastland to request testimony from various White House advisors.

In this conversation with Ramsey Clark, the President and the AG go over strategy on how the staffers should invoke executive privilege, and Johnson begins to realize the nomination is doomed—although Clark continues to hold out hopes of a victory.

President Johnson and Ramsey Clark, 12 September 1968, 5.16pm, ref. no. 13413-4

I’d find some reason that Griffin’s in this thing. I don’t think that anybody’s ever pointed out that Griffin said a week before the appointment that he was against anybody that was appointed. He wasn’t worried about pornography. Anybody’d look at his face and tell he’s not—that doesn’t bother him!


Ramsey Clark: Now, Abe feels very strongly that the way to do it is not by these individual letters, but by you to write one letter, in which you say, in effect, that this is outrageous, and no President ever lets his special assistants come up there, and you guys know that—and I’m not going to let these men, period.

That has some, you know, some strength about it, some historic value in the long-range sense. But strategically, in the short-range sense, it hurts, I think. Hell, we’re trying to get a confirmation. And the reason it hurts is basically they want to tie him to you. You’re old buddies, and cronies, you’re the big cover-up man, and here you’re covering up.

[Break.]

President Johnson: But I just hear every 30 minutes, these fellows, they have press conferences—you know, [Robert] Griffin’s on all the time. He’s having a big press conference this morning. And they make 40 allegations, and we just get tried and convicted every day, and our side—the other side—doesn’t get in. But . . .

Like old [New York GOP senator Jacob] Javits got up there yesterday and said there’s not anything anti-Semitic in here, nobody’s ever said anything about it. [Sighs.] God almighty, when they called him a Red communist Jew, I don’t know what that is.

Clark: Marquis Childs hit that pretty hard yesterday.

President Johnson: They ought to play that damn record—some halfway irresponsible, like [Oregon senator Wayne] Morse, ought to get up and play that record. Demand that—if they want to look at some of these damn movies, that they just read this record, read it aloud. Let one of ‘em read a paragraph or two of it. That’s the only way you’re ever going to get ‘em agitated. We might have an outside chance of confirming him if we’d had had something like—

Clark: Well, I think we’ve got a good chance. Hell—

President Johnson: I just think if Morse would get back here, and start moving—put a little backbone in [Mike] Mansfield . . .

Clark: Well, the time we really want to start beating the drums is toward next weekend, a week from Monday. You know.

President Johnson: Mm.

Clark: We really want to peak hard, and just hit ‘em with everything we can, over the weekend, and Monday and Tuesday.

President Johnson: Of next week?

Clark: The 23rd and 24th.

President Johnson: Yeah.

Clark: They’re going to have their rounds. Hell, we’ve got a one-party press, and they’re going to get—you know, that’s all right. Let ‘em shoot now, and let’s get the damn thing out of committee, and . . . I feel pretty good about it. You know, we got a chance.

President Johnson: I don’t see any two-thirds vote [for cloture] much.

[Break.]

President Johnson: What worries me is [Everett] Dirksen’s quit us. He’s just not giving us the support he ought to.

Clark: I agree. He hasn’t had the strength—I mean, there’s been an appearance of strength and succeeding strength for years, so, and . . .

This is a tough situation for him.

President Johnson: That’s right. It’s funny: he always starts out one way and winds up the other, doesn’t he?

Clark: He really does.

President Johnson: And he never gets into any problem about it.

Clark: He rarely does.

President Johnson: If I had—

Clark: On every civil rights bill—

President Johnson: Yeah, if I had a flip flop like that, I don’t know . . .

Clark: Everybody says he’s a great man.

President Johnson: Well, let’s be careful what we do. And keep your boys reined in. Don’t be indicting, or suing, or locking up any of our folks for the next few days, anyway. We haven’t got many more hours here, and I’m just afraid that you got all those damn professors, and there ain’t no telling what they’ll do. I’m just afraid that—I want to turn it over to Nixon the quicker the better, as far as I’m concerned.

So let’s stay pretty close in touch with each other, and . . .

[Break.]

President Johnson: Well, I think that this way [individual letters on executive privilege] would probably be better. I don’t care; I’d do it either way you say.

Clark: Well, I believe we’ll do it this way—

President Johnson: Yeah.

Clark: –but I’ll talk to Abe once more, and—

President Johnson: You do it. I want to be sure that he don’t think we’re running out on him, or take his life and play with it. Just tell him I’m ready to do anything, all the way, even if I thought it was wrong.

And I have no strong convictions one way or the other on most of this—except I just wish we had some talkers and hell-raisers on our side. We’ve got three or four of the best in the Senate, but we don’t use ‘em.

We’ve got to bribe ‘em a little bit. We’ve got to tell Morse we’ll help him [in his reelection bid]. Humphrey was in pleading with me last night to go out and dedicate a dam, and pull all the stops out, and help Morse. Show ‘em how they’re going to remake the Columbia [River] Basin, and stuff like that.

I said, “That’s asking a lot of me to go and ask Morse to do something.” [Sighs.] But he has been right on all of our domestic [issues].

[Break.]

President Johnson: If we could get him tuned up—labor said they would do it—[and] if we could ever get somebody like Javits or [Massachusetts senator Ed] Brooke working on ‘em from the other side . . . And then we get old Albert Gore, a spoke in the rules up there. Let him be a floor leader. He wanted to be something all of his life, he never has commanded over three people. He starts out with 80 and he’ll lose ‘em. By the second day, he’ll be down to three.

Clark: I didn’t know he ever had three.

President Johnson: Well, he just usually winds up with Mike Monroney, but Mike’s busy now. He’s going to get beat if we don’t do something. We better keep a Democratic Senate.

Clark: We’ll be cranking hard with all those guys—

President Johnson: Get somebody that can write some mean damn speeches that allege some things that they’ve got to deny. Let them do some research.

Senator [Alvin] Wirtz said—he told me one time that he was [unclear] alleging old John Carpenter. “He was alleging a bunch of things, and I just kept saying, ‘Well, senator, is that true? Is that true?’ He said, ‘Well, did you hear about the boy sleeping with the hog?’ He said no. Well, did they charge him with it in the campaign? He said, ‘God, that’s not so.’ But make the son of a bitch spend the afternoon denying it, at the barbecue.” He said that’s what you got to do: you’ve got to employ their resources and their talents doing research instead of attacking you.

Now, we don’t ever keep ‘em busy. I’d find some reason that Griffin’s in this thing. I don’t think that anybody’s ever pointed out that Griffin said a week before the appointment that he was against anybody that was appointed. He wasn’t worried about pornography. Anybody’d look at his face and tell he’s not—that doesn’t bother him! [Clark chuckles.] Pornography!

He was just worried that, by God, he couldn’t make a partisan, political deal out of the Chief Justice [nomination]. And the Republican Chief Justice hadn’t delayed it and played politics with it till he could get in.

Now, that’s what he said! He said it days before we even decided to name Fortas. Somebody ought to point that out. It’s not pornography, and it’s not reading the Secret Service amendment. It’s just one damn thing.

I heard you say it on the radio. I don’t know how they got the statement out of you, but somebody got a corkscrew and worked on you. And they said, “Ramsey Clark admitted this morning there’s two things: that the civil rights boys didn’t like the way things were going, and they were practically solid—20 out of 22 down there. And the others were political!”

And they were not against Fortas—they were just against anybody. That’s what Griffin and his 18 men were. Didn’t they come out against anybody before Fortas was named?

Clark: Sure. Nixon, too.

President Johnson: And Nixon, too.

Clark: He said the next President ought to name—

President Johnson: That’s right!

Clark: He said it just about an hour before Fortas was named.

President Johnson: And that’s just cheap politics. Now, somebody ought to make that thing. Let the people see that’s what this fight’s about. And now, don’t let ‘em get covered up with a red herring here. Camouflage. And a lot of falses. Let’s get down there, get underneath and see what’s there.

————————————-

IV. Defeat

On October 1, an attempt to impose cloture on the filibuster and bring Fortas’ nomination to a vote overwhelmingly failed. Needing a two-thirds vote, Johnson managed only 45 senators.

In the hours after the vote, the President struggled to understand the scope of his defeat. He first reached out to Dirksen, suggesting that he might turn around and nominate recently retired Associate Justice Tom Clark to replace Warren.

President Johnson and Everett Dirksen, 1 October 1968, 10.31am, ref. no. 13501

He wouldn’t serve too long, you see. But I think it would unify the country, and it wouldn’t look like you all are playing politics, trying to get a Justice.

President Johnson: All right—I gather you’re not going to get your votes; you’re not going to cut off cloture.

Everett Dirksen: No, no.

President Johnson: All right, then: what are we going to do?

Dirksen: Well, I don’t know. [Chuckles.] Then it’s up to Mike.

President Johnson: Well, I mean, though . . . what, can you . . . you think it ought to go on over then, until January?

Dirksen: Yeah, I don’t think you’ve got a show now. [Pauses for several seconds.] So the matter will just be a stalemate.

President Johnson: Well, suppose Warren doesn’t serve? Suppose you just send another name up?

Dirksen: Well, then you’ve got that problem.

President Johnson: Well . . . If you got a good man, you wouldn’t have the problem, would you?

Dirksen: Why, I wouldn’t think so.

President Johnson: Let me ask you this—now, I don’t want you to mention this to another human. Can I talk to you that way about it?

Dirksen: Yes, sir.

President Johnson: What if we sent Tom Clark up there to act as Chief Justice?

Dirksen: Well, he’s served before. There was no heat on him at any time, as far as I know. And the very fact that he’s off doesn’t make any difference. He just goes right back on.

President Johnson: [with Dirksen assenting] What I thought was—you see, I don’t know that this would ever work out, but if the Republicans . . . he wouldn’t serve too long, you see. But I think it would unify the country, and it wouldn’t look like you all are playing politics, trying to get a Justice. You’re going to get [Hugo] Black—he’s 84, and he can’t go on. And nobody on the Court really wants him to act [as chief justice], because they don’t know the stability there. They got a problem.

You’ve got [William] Douglas, who’s got a bad heart. You’ve got [John] Harlan, who’s got eye troubles. So you’ve got three right there.

Dirksen: That’s right.

President Johnson: But a lot of the folks feel that the Griffin effort was a pure political effort, particularly in the light of what you said, and he said that nobody should serve, the lame duck shouldn’t appoint anybody.

Dirksen: Yeah. Yeah.

President Johnson: Now, if we took Clark, who had just retired on account of his son [being appointed AG], and sent him up there as Chief, instead of letting Warren go on acting—the Southerners all urged me to name Clark as Chief, because of his crime record, and so on and so forth. [John] McClellan and [Jim] Eastland and them thought that he would be good.

Dirksen: Yeah.

President Johnson: I would have to get me a new attorney general.

Dirksen: Well, I think so.

President Johnson: But I could do that for a month, two months.

Dirksen: Right.

President Johnson: But . . . I would not want Clark to get butchered. But he served with great distinction, and I think all the conservatives liked him. It would be pretty hard for a Democrat to be against him.

Dirksen: Yeah, that’s right.

President Johnson: Because he’s really on the Court now. He just stepped aside—

Dirksen: That’s right.

President Johnson: –on account of his son.

Dirksen: Yeah. He’s still subject to call.

President Johnson: Could you support Clark?

Dirksen: I could.

President Johnson: Don’t say that to a human.

Dirksen: I won’t.

President Johnson: I have to talk to [Mike] Mansfield, but I’ll talk to you later about it.

Dirksen: All right.

President Johnson: And I’d think that that would be better than us messing around here, and letting them think we’re playing politics with the Court.

Dirksen: Yeah.

———————————————

A few minutes after hanging up with Dirksen, LBJ turned to longtime advisor and current defense secretary Clark Clifford. The duo considered the options, with Johnson increasingly turning toward the possibility of nominating Rhode Island senator John Pastore, a moderate Democrat, as chief justice.

President Johnson and Clark Clifford, 1 October 1968, 5.40pm, ref. no. 13507

Is there a sound, distinguished, liberal Republican lawyer of national standing that they just couldn’t find anything the matter with, and the Republicans couldn’t claim that it was some kind of last-minute effort to prevent Nixon? But at least we’d end up with a good, strong liberal.

President Johnson: Yeah, now, here’s what the thing is. There’s maybe one man in the 45 that would vote against him. There are several in the 43 [who opposed cloture] that would vote for him. There are 10 absent that would vote for him. There are two absent that would vote against him. So, just rough take, and you’d be off one or two, it would be 55-45.

Clark Clifford: Correct.

President Johnson: You would still be 12 votes off, if you could force every man to come in. You can’t always do that.

Clifford: No.

President Johnson: A fellow like [Missouri senator Edward] Long, that’s been defeated, doesn’t like to come in, and stuff. So, it’s impossible to get it taken up if they filibuster it.

Clifford: That’s true.

President Johnson: They are going to filibuster it—the Southerners and the others. And [Mike] Mansfield will not, really will not fight. And if he did fight, I can’t see that, at this stage, that you could win it. They’re getting just barrels full of mail.

Clifford: And it’s probably all against Abe . . .

President Johnson: Yeah, it’s all right-wing. They’ve got about 19 right-wing organizations—Billy Hargess, and Owen Roberts of Oklahoma, and Gerald L.K. Smith, and old man Hunt’s Liberty Lobby, and the Klan, and the Nazis, and just everybody.

Now the question is: do we, does Fortas say withdraw your name by letter? He’s got a letter written. He hasn’t talked to me. But he just called here at 5.40, and said, “Justice Fortas called to say he very much wanted to talk to the President, but he does not want to place a call to him directly. Fortas is at his chambers until 6.00.”

The Attorney General says he’s got a letter, and it’s draft number eight. He said they’ve all been emotional and excitable, and denouncing the Senate. He said he’s very impatient, he’s jumping from one post to the other . . .

Clifford: Abe is?

President Johnson: Yeah. And he said in raw terms, he’s a very proud man, and he’s very emotional about this. And that fellas, it’s awfully easy for him to help other people, but when it comes to when they involve themselves, they have a problem. Ramsey’s just looking at it cold. He thinks—he, Ramsey, thinks—that Abe really doesn’t want us to submit another name, just let it die there on the vine. But he says he’s got a letter he wants to send to us.

Ramsey thinks that we ought to wait till about Thursday (tomorrow’s a holiday, a Jewish holiday, some . . .), that Abe ought to send a letter that just meets it head-on, just saying that “I appreciate—

Clifford: To whom should he send a letter?

President Johnson: To the President. Say, “I appreciate your confidence in me, and your selecting me. But the Court’s about to begin, and a majority of the Senate has indicated they’re ready to vote on my nomination, but a substantial minority won’t permit ‘em to, and therefore, I don’t want to be sitting there while this thing’s being debated, and I ask you to withdraw my name.” Something about like that. I think that’s about what’s in his letter now.

They’ve got . . . He had a lot of denunciations in it, but Porter has taken some of ‘em out, and Ramsey’s taken some of ‘em out this morning. He thinks that ought to be done.

Then the question is: whether we should just sit there until January and not send a man, or whether we should send a man up right away. Or whether we should wait a day or two and canvass it pretty carefully, and try to send somebody. Or wait till they leave, and name a recess [appointment]. Or what. That is the next question. And that’s what I’d like to have your thinking on.

I haven’t got any thinking on it—I don’t care much. I would assume the Republicans would want to . . . I assume the Republicans would want to hold it for Nixon.

On the other hand, the Southerners, and [Everett] Dirksen, and some of ‘em indicated to me, a good many times—Dirksen indicated to me today he’d be strong for Tom Clark. He said, “Let him go and serve three or four years; he’s been on the Court.” They just want somebody that won’t be—this crime stuff.

I don’t know what they would do with that. I think it’d probably be Texas, and be too old, and the liberals might fuss. Ramsey’d have to leave as attorney general. And that’ll look like Clark got off the Court, and then Ramsey went on; and now Ramsey went off and Clark got on. A lot of Texas maneuvering.

I guess he would be most popular with the opponents [of Fortas]—I mean, the Republicans and the Southerners. That’s what make up the group.

There’s hardly any other person you could get, unless it’s a senator. You could get [Kentucky GOP senator John Sherman] Cooper, but he’s deaf. And . . .

Clifford: Is there any—

President Johnson: You could get [Phil] Hart, but the Republicans wouldn’t vote for him, because he’s liberal and extreme, and very McCarthyish. His wife’s running around over the country, and his daughter.

You might get [Rhode Island senator John] Pastore. They’d say that’s cute.

Clifford: Well, I have two reactions. On the present situation, I have read in the press from time to time that [Mike] Mansfield contemplated trying cloture twice. He was going to bring it up the first time—

President Johnson: No, he wants to abandon it now.

Clifford: Oh, he does.

President Johnson: Yeah.

Clifford: I see. Would you think there’s any value from your standpoint, and Abe’s, in letting them debate it for another couple of days, and having them try cloture—

President Johnson: No, they won’t do that. They’ve already set it aside.

Clifford: Oh, they have.

President Johnson: Yeah. They’re on your defense appropriations bill now.

Clifford: Yeah, I get you. Well, then that takes care of that. I think that they have indicated, then, that’s it’s not going to—

President Johnson: Yeah, that’s definite. You can be just as sure of that as you are that Marni loves you. [Clifford chuckles.]

[Break.]

Clifford: All right. I’ll be thinking about this.

Is there a sound, distinguished, liberal Republican lawyer of national standing that they just couldn’t find anything the matter with, and the Republicans couldn’t claim that it was some kind of last-minute effort to prevent Nixon? But at least we’d end up with a good, strong liberal.

I keep having the feeling that something in that direction just absolutely defuses the opposition. I think we might think something about that. If there is a man, I would like you to send a man up there—another name up. I just wouldn’t like to take this as though, “Well, hell, they’ve won, and now we can’t do anything.” Because you still have three months and 20 days to be President of the United States.

President Johnson: Yes, but they won’t vote for a Republican liberal, because they’re not Repub—the 10 of ‘em will. But there are 37 of ‘em [in the GOP caucus]; the [conservative] 27 of ‘em won’t. And the Southerners won’t.

You’re dealing with roughly 20 Southerners, and 27 [anti-administration] Republicans. Now, you take the three we had—we’ve got two of them. Smathers dodged me. So we got Yarborough and Gore. That’s the only Southerners out of the 11 Confederate states. So out of 22 [senators], we’ve got two.

Now, they’re a bloc. And they’re going to vote for anybody that they think will go along with the [opinion they have on] Mallory and Escondido, the Arizona case [Miranda]—what do they call it?

Clifford: Yeah. One of those other ones.

President Johnson: Yeah. Yeah. And they are just hell-bent on it. So you’ve got to get somebody that they’ll go with. Now, they might go with a senator. Cooper is a liberal. Of course . . .

Clifford: I don’t . . . I never thought he was very bright.

President Johnson: He’s not. He’s not. He’s not at all. He’s not at all. But they might go with him.

They might go with Pastore. I think Pastore would put ‘em in a helluva shape. He’s a damned able lawyer who was attorney general of his state. He’s a governor. He’s a helluva speaker. He’s a well-informed fella.

Clifford: Would his heart attack?

President Johnson: What?

Clifford: Would his heart attack give them anything?

President Johnson: Well, it didn’t bother mine.

Clifford: It sure didn’t bother you.

President Johnson: And he’s there all the time.

——————————–

Finally, Johnson accepted a call from his old friend, in which both Fortas and the President conceded defeat—although they disagreed on the best approach to move forward.

President Johnson and Abe Fortas, 1 October 1968, 6.06pm, ref. no. 13509

I haven’t talked to a human about Pastore. But I’ve looked at the Senate, and I think that puts them on a helluva spot. And I think that that keeps Nixon from getting that vote, and getting that leader. I think the new man would be sympathetic with us, and help us, if we can put him in there. And I think we ought to have somebody helping us, and working there, and voting right.

Fortas: I wonder whether we could just bury it, and let it stand?

President Johnson: What do you mean, “Bury it?”

Fortas: Well, take it up again. Let Mansfield go ahead and do his business, [unclear].

President Johnson: Well, I don’t think he can do that, unless we—he’s dependent on our guidance. He’ll wait, and he’ll ask us what do we want to do about it.

Fortas: Yeah, but I say—suppose he does that?

President Johnson: Well, I think that we have to go one of two things. We have to say, “Well, let’s take it up, and talk about it, and vote some more.” Or we want to withdraw it.

Fortas: So you don’t think we could just let it lie?

President Johnson: [sharply] No, and I don’t think that . . . No, I know it won’t! He was going to announce it this afternoon, you know. We had to go up there and stop him and ask him to give us a day or two to figure this thing out. And kind of draft this statement where it would look like that a majority was for us, that if this outfit would let ‘em vote, and so forth.

But no, he’s not going to take it and just leave it there, just dangling. Some overt act’s got to take place. We’ve either got to shove it, and move it, and say, “Go out and get these fellas, and bring ‘em in here”—which I think would probably do us more harm; I mean, I think we’d lose some by it—or, we’ve got to withdraw it and send some other name up there. Unless we just say well, we’re incompetent; we’re going to let Nixon name the man. Because Nixon is going to—my judgment, name him. I think that we can admit that—just say we’re through fighting, and we’re not going to fight. But I don’t like to do that; I’d rather send the toughest guy I could to ‘em, that they couldn’t turn down, if I could get anybody. But I don’t know whether—I imagine that the Republicans would filibuster anybody. But I’d make them filibuster somebody, to make them look bad. I’d like to get somebody, if I could—the ablest Republican liberal I could, that would vote right, but would make it impossible for them to go against.

I wouldn’t send [Arthur] Goldberg at all, because . . . a lot of reasons. And he’d just get murdered. But if I could find, if I knew a real progressive—if Cy Vance were a Republican, or I had a McNamara Republican type, of that’s type, that’s liberal. That seems to me would be the best one, but then I think probably the Southerners would filibuster him. They’re going to want Nixon to take all of it, you see.

Mansfield has felt that Warren would go on. We’d told him Warren would go on. He was very shocked today when he found out that Warren wouldn’t go on. They showed him this article that had been written by Graham on his 15th anniversary [as Chief Justice]. And he had thought up till that time that it would either be Warren or that.

But now he sees that Warren won’t go on. The question is—he wants to know whether we want to abdicate, or whether we want to try to perform our constitutional functions. That’s about what we’ve got to do, and I think we’ve got to think about it, and take a little time. Tomorrow’s a holiday, and they won’t be doing much. I don’t think he’ll say anything until Thursday. And I thought I’d talk to you, and then I thought I’d talk to Clark [Clifford], maybe talk to the Attorney General, maybe talk to Mansfield and Dirksen tomorrow afternoon. Probably we ought to talk to some of your friends up there tonight or in the morning.

Fortas: Talk to my friends where? Hmm?

President Johnson: The Chief.

Fortas: Oh, I have been talking—

President Johnson: And kind of get his thinking, their ideas. Then maybe come by here and talk to me in the morning, after we sleep it over and think about it a little bit. I’m kind of addled.

Our people thought we’d get about 52 votes; we had 55 counted a week ago. A lot of ‘em just didn’t come back. Those that are back now are just made as hell, because they say they’ve got all these damn movies, and they’ve got 3000 prints of ‘em, and they send ‘em out to every little county that’s showing ‘em, showing ‘em over at the Press Club this afternoon.

These right-wingers, you see, nobody knows—they’ve gone untouched, they’ve never been exposed. This Spivak exposed them in his column, but he’s not run with anybody but Oveta [Culp Hobby, of the Houston Chronicle] and a few of them.

Fortas: Mm-hmm.

President Johnson: They’re just having reprints made, and carrying them around, and every old man in the country, you know, that’s still got a little ambition, and he’d like to see a naked woman, he’s looking at it.

Fortas: Mm.

President Johnson: So, I think we’ve got to find out what we do, how we put it to rest there, and put them behind the eight-ball again, just as quick as we can.

Fortas: Mm-hmm. Well, my—the one thing from my point of view, subject, of course, to your own requirements, but from my point of view: (a) I think this is over; that is, it’s not possible to accomplish anything; (b) what I want to do is to put it to rest, insofar as I am concerned, in the most honorable and the best way that can be done.

And absent reference to your position, and what you can do, and what you ought to do, I would think that from my point of view, the best thing to do would be to forget it. Let it stay up there. That may not be peaceful, and it may not be right from your point of view—

President Johnson: You don’t mean we just say well, we’re going to leave it up to Nixon—voluntarily?

Fortas: Yeah, in effect. Because I don’t think you can get anybody through there that’s better than what he’d get through, do you?

President Johnson: Well, I don’t know, but I damn sure wouldn’t want my record to show that in the year of our lord—

Fortas: [Unclear interjection.]

President Johnson: –year of our lord, with nearly four months to go, that I wouldn’t send another name. I’d just send one in, if they didn’t like it, I’d just say, “Hell, no, I won’t send another one.” Unless they told me that they wouldn’t seat it or something.

Fortas: Mm-hmm.

President Johnson: I think we ought to be thinking about who the—but I think that would just kind of be admitting, just walking off and letting them off with the easy end of it. I want to fight ‘em! I think we have a bunch of sons of bitches.

Fortas: The only way to fight ‘em is to send up a good man, and not one—

President Johnson: That’s what I’m going to [unclear]; I’m not going to send a bad one. I’m just trying to find one; that’s the point I’m making.

Fortas: But . . . Well—

President Johnson: I think that we’ve got to be satisfied with less than the best, because we’ve tried the best, and that hasn’t gone with ‘em. But I don’t think we have to take the worst. That’s my feeling, and I think that—I’m not determined on it at all, that’s just my reaction.

My reaction was, first, Warren ought to go on, just say, “OK, you can’t qualify a successor, and I told you I’d stay till my successor is qualified, so I withdraw it.” That’s out.

Fortas: Mm-hmm.

President Johnson: Now, that changes the whole ball game. That changes the whole strategy. That was a turn I didn’t expect. I thought he would stay until hell froze over. But he did change abruptly.

Now, then, the Senate has refused, and turned us down. I agree with you (a) it is over. I agree with you (b) that we ought to put it in end, just as quick as we can. Tomorrow, I’d think. (c) I think we ought to say, “All right, what are we going to do?” That can be do nothing, just withdraw it, and say we’ll wait till Nixon. Or, say we’ll fill it, and you write the President a letter, just stand up like men to each other and I write you back, and say, “I’m very sorry.” And then send another name up.

[Break.]

President Johnson: I think this is going to be a pretty important decision. We’ve made a lot of important ones, but I don’t know of any that are more vital than this one. I want to try to be sure we’re right. I wish you’d get all the judgment you can, from the Chief and all that you can think of overnight. And I will try to think about it some, and . . .

But I think we’re in agreement now that all we need is a name—a good name. And I don’t know any good ones. I just . . .

Fortas: Well, unless we can find a good name, I’d just as soon go with Nixon.

President Johnson: I don’t think I can do that: I’ve got to be President. Hell, I’ve got other people to name every day. And I just can’t say that I just know one man in America that I would recommend as chief justice. I mean, that’s the position I think I’d be in. I think I’ve got to act if . . . If I live, and the Senate . . . But otherwise . . .

I don’t think it can be anybody from the Court, and I rather think it oughtn’t to be anybody from any other Court. I think we—and I rather think it ought to be a progressive Republican. If Cooper hadn’t have had said this, and could hear, I’d give some consideration to him. I’d give some consideration to hart; he’s awful pro-McCarthy.

Pastore appeals to me a good deal. I haven’t talked to a human about Pastore. But I’ve looked at the Senate, and I think that puts them on a helluva spot. And I think that that keeps Nixon from getting that vote, and getting that leader. I think the new man would be sympathetic with us, and help us, if we can put him in there. And I think we ought to have somebody helping us, and working there, and voting right, and . . .

I don’t know what the Republicans would do to Pastore; I don’t know what they’d do to Hart.

In the end, after canvassing the Senate leadership, Johnson realized that no nomination would move forward. Warren agreed to remain in an interim capacity, and eventually would be replaced as chief justice by conservative Warren Burger.

For the first time since 1930, the President’s choice had not made it to the Supreme Court. And the ideological and partisan swirls that destroyed the Fortas nomination would come to be the norm, rather than the exception, for Supreme Court nominations after 1968.

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