Earl Warren – The Intelligent Collector Magazine

Selecting a justice has always been a messy, partisan process

This photograph, circa 1968, autographed by Chief Justice Earl Warren and the eight associate justices, sold for $2,031 at a June 2010 Heritage auction.

By Jim O’Neal

The Senate Judiciary Committee began hearings this week to consider the nomination of Judge Brett Kavanaugh to the Supreme Court in their “advise and consent” role to the president of the United States. Once considered a formality in the justice system, it has devolved into a high-stakes political process and is a vivid example of how partisanship has divided governance, especially in the Senate.

Fifty years ago, President Nixon provided a preview of politics gone awry as he attempted to reshape the Supreme Court to fit his vision of a judiciary. His problems actually started during the final year of Lyndon Johnson’s presidency. On June 26, 1968, LBJ announced that Chief Justice Earl Warren intended to resign the seat he had held since 1953. He also said that he intended to nominate Associate Justice Abe Fortas as his successor.

For the next three months, the Senate engaged in an acrimonious debate over the Fortas nomination. Finally, Justice Fortas asked the president to withdraw his nomination to stop the bitter partisan wrangling. Chief Justice Warren, who had been a keen observer of the Senate’s squabbling, decided to end the controversy in a different way. He withdrew his resignation and in a moment of pique said, “Since they won’t take Abe, they will have me!” True to his promise, Warren served another full term until May 1969.

By then, there was another new president – Richard Nixon – and he picked Warren Burger to be Warren’s replacement. Burger was a 61-year-old judge on the U.S. Court of Appeals with impeccable Republican credentials, just as candidate Nixon had promised during the 1968 presidential election campaign. As expected, Burger’s confirmation was speedy and decisive … 74-3.

Jubilant over his first nomination confirmation to the court, Nixon had also received a surprise bonus earlier in 1969. In May, Justice Fortas had decided to resign his seat on the court. In addition to the bitter debate the prior year, the intense scrutiny of his record had uncovered a dubious relationship with Louis Wolfson, a Wall Street financier sent to prison for securities violations. To avoid another Senate imbroglio over some shady financial dealings, Fortas decided to resign. In stepping down, Fortas became the first Supreme Court justice to resign under threat of impeachment.

So President Nixon had a second opportunity to add a justice. After repeating his criteria for Supreme Court nominees, Nixon chose Judge Clement Haynsworth Jr. of the U.S. Court of Appeals, Fourth Circuit, to replace Fortas. Attorney General John Mitchell had encouraged the nomination since Haynsworth was a Harvard Law alumnus and a Southern jurist with conservative judicial views. He seemed like an ideal candidate since Nixon had a plan to gradually reshape the court.

However, to the president’s anger and embarrassment, Judiciary Committee hearings exposed clear evidence of financial and conflict-of-interest improprieties. There were no actual legal implications, but how could the Senate force Fortas to resign and then essentially just overlook basically the same issues now? Finally, the Judiciary Committee approved Haynsworth 10-7, but on Nov. 21, 1969, the full Senate rejected the nomination 55-45. A livid Nixon blamed anti-Southern, anti-conservative partisans for the defeat.

The president – perhaps in a vengeful mood – quickly countered by nominating Judge G. Harold Carswell of Florida, a little-known undistinguished ex-U.S. District Court judge with only six months experience on the Court of Appeals. The Senate was clearly now hoping to approve him until suspicious reporters discovered a statement in a speech he had made to the American Legion 20-plus years before in 1948: “I yield to no man as a fellow candidate or as a citizen in the firm, vigorous belief in the principles of White Supremacy and I shall always be so governed!”

Oops.

Even allowing for his youth and other small acts of racial bias, the worst was yet to come. It turned out that he was a lousy judge with a poor grasp of the law. His floor manager, U.S. Senator Roman Hruska, a Nebraska Republican, then made a fumbling inept attempt to convert Carswell’s mediocrity into an asset. “Even if he is mediocre, there are lots of mediocre judges, people and lawyers. They are entitled to a little representation aren’t they, and a little chance?” This astonishing assertion was then compounded when it was seconded by Senator Russell Long, a Democrat from Louisiana! When the confirmation vote was taken on April 9, 1970, Judge Carswell’s nomination was defeated 51-45.

A bitter President Nixon, with two nominees rejected in less than six months, continued to blame it on sectional prejudice and philosophical hypocrisy. So he turned to the North and selected Judge Harry Blackmun, a close friend of Chief Justice Burger who urged his nomination. Bingo … he was easily confirmed by a vote of 94-0. At long last, the vacant seat of Abe Fortas was filled.

There would be no further vacancies for 15 months, but in September 1971, justices Hugo Black and John Harlan announced they were terminally ill and compelled to resign from the court. Nixon was finally able to develop a strategy to replace these two distinguished jurors, but it was only after a complicated and convoluted process. It would ultimately take Nixon eight tries to fill four seats, and the process has only become more difficult.

Before Judge Kavanaugh is able to join the court, as is widely predicted, expect the opposing party to throw up every possible roadblock they have in their bag of tricks. This process is now strictly political and dependent on partisan voting advantages. The next big event will probably involve Justice Ruth Bader Ginsburg, a 25-year court member (1993) and only the second woman on the court after Sandra Day O’Connor. At age 85, you can be sure that Democrats are wishing her good health until they regain control of the Oval Office and the Senate. If not, stay tuned for the Battle of the Century!

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

Kennedy’s Court Appointments Kept World of Judiciary at Peace

This copy of *PT 109*, signed by John F. Kennedy, author Robert J. Donovan and surviving crew members, sold for $13,750 at a December 2016 Heritage auction. The book tells the story of one of the most important episodes in Kennedy’s life.

By Jim O’Neal

When war broke out in 1939, all the Rhodes Scholars in England were sent home and this included Byron “Whizzer” White. He went back to Yale and graduated from its law school with honors. Then, in 1942, he enlisted in the Navy, as so many others did. He was serving in the Solomon Islands as PT boat squadron skipper and intelligence officer when John F. Kennedy was a PT boat officer. It was White who personally wrote the official account of the battle events that were later portrayed in the book and movie PT 109.

Flash forward 20 years and there was a famous photo of a smiling Kennedy, now president of the United States, pointing at the front-page headline of the New York Herald Tribune – “WHIZZER WHITE TO SUPREME COURT – LAWYER, NAVAL OFFICER, FOOTBALL STAR.” It was JFK’s first appointment to the Supreme Court.

In August 1962, President Kennedy got a second bite at the same apple. Justice Felix Frankfurter, once styled as “the most important single figure in our whole judicial system,” bowed to the effects of a stroke and announced his retirement. The president acceded to his request and called a press conference to announce he had chosen Secretary of Labor Arthur Goldberg as the replacement.

This was not a great surprise, since the 54-year-old labor expert was well-qualified and eager to join the court. The only slight reluctance was his close personal relationship to the president and the loss of a highly valued cabinet position. However, both Chief Justice Earl Warren and Frankfurter himself supported the decision and it was made.

The nation’s reaction was universally favorable and the Senate Judiciary Committee was in total agreement. Goldberg was confirmed by the full Senate, with only Senator Strom Thurmond recording his opposition. Thus the new justice was able to take his seat on the court in time for the October 1962 term. The world of the judiciary was at peace, even after the tragic events in Dallas in November 1963 and the Warren Commission investigation that followed.

However, after a mere three years on the Supreme Court, President Lyndon B. Johnson decided that Justice Goldberg should resign from the court and become ambassador to the United Nations, succeeding Adlai Stevenson. It now seems clear that LBJ’s motive was the naive hope that someway Goldberg might be able to negotiate an end to the nightmare in Vietnam. Goldberg was strongly opposed to the move, but as he explained to a confidant, “Have you ever had your arm twisted by LBJ?”

Supposedly, there was also a clearly implied understanding of an ultimate return to the court, which obviously never materialized. Neither did an LBJ suggestion that Goldberg might be a candidate for the 1968 vice-president slot – another false hope that was mooted by LBJ’s decision not to seek reelection.

Lost in all of this was the fact that Goldberg’s intended replacement on the court, Abe Fortas, had repeatedly declined LBJ’s offers to be a Supreme Court justice. In fact, poor Abe Fortas never said yes. The president simply invited him to the Oval Office and informed him that he was about to go to the East Wing “to announce his nomination to the Supreme Court” and that he could stay in the office or accompany him.

Fortas decided to accompany the president, but to the assembled reporters he appeared only slightly less disenchanted than the grim-faced Goldberg, with his tearful wife and son by his side. Goldberg had reluctantly agreed to become ambassador to the United Nations and commented to the assembled group, “I shall not, Mr. President, conceal the pain with which I leave the court.”

It was a veritable funereal ceremony – except for a broadly smiling LBJ, who had once again worked his will on others, irrespective of their feelings. The man certainly did know how to twist arms – and I suspect necks and other body parts – until he achieved his objectives.

He was sooo good at domestic politics, it seems sad he had to also deal with foreign affairs, where a different skill set was needed.

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].

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.