Skip to main content

tv   Lectures in History Johnson Nixon Supreme Court Nominations  CSPAN  October 3, 2020 8:00pm-9:21pm EDT

8:00 pm
with background on some of nixon's nominations. the national archives posted a conversation with interpreters pretraining susan b. anthony, sojourner truth as at -- and al is long as they discuss the history of women's suffrage and the challenge they face along the way. at 10 p.m. eastern on "reel america," we feature four films about wildfires, firefighting and fire prevention. >> all right. so at iswhat we are looking the development of controversial supreme court nominations in the late 1950's and early 1970's. we are looking at the war in court. and the increasing search of controversial decisions on the court. two basic principles.
8:01 pm
the idea that it was a particular job of the supreme court to stand up on behalf of people who may not have majority support. whether it was atheists or civil rights activist or criminal defendants throughout the 1960's. second was the emergence of this philosophy that some historians have called right related liberalism. the idea that liberalism was protected individual rights. as a result, the supreme court became an important mechanism for this. one problem, which is that if you are going to govern, you have to be able to appoint supreme court justices. this becomes an increasingly fraught prospect for liberals. lyndon b. johnson, after 1964 with the civil rights act, 1965 with the voting rights act, he has a sense that the supreme court will be significant. unlike with kennedy, there are
8:02 pm
no openings on the court. johnson essentially creates one. he first comes in 1965. it is a custom which dates back to the wilson administration. there was one jewish member on the court. the jewish member on the court in the early 60's was arthur goldberg. johnson however wants to appoint this man, his longtime lawyer and fairly close personal friend and advisor, abe fortas. he goes to goldberg and says look, it is important, we have a problem in vietnam. it can only be handled at the united nations. you are the best negotiator i know. for the good of the country you need to resign from the supreme court, except a job as a u.n. -- accept a job as a u.n. ambassador. he believes it and goes off to the um and is basically ignored
8:03 pm
by johnson for two years. fortas continues to advise johnson behind the scenes on important policy issues. he helped to speeches. madge and in the current environment of john roberts regularly consulted on trump's speeches. it would cause problems for johnson down the road. second, in 1967, thurgood marshall who we have seen previously as the naacp chief counsel. who johnson appointed to the circuit court in new york, johnson sees an opportunity to name the first african-american to the court. there is no vacancy. there is however a vacancy to the position of attorney general. johnson looks far and wide in the country and decides that ramsey clark would make the world's top attorney general. one small problem, his father is on the supreme court. johnson goes to ramsey clark and
8:04 pm
says i would love to appoint you but i cannot do it with your father on the supreme court. if your father is willing to resign as a supreme court justice, i could appoint you as attorney general. the father resigns and johnson gets another vacancy. marshall moves on to the court. johnson assumes he will run for reelection in 1968, he will be reelected, there are three very elderly members of the court, including two justices who are not in good health in the late 1960's. he is working under the assumption he will be able to appoint four or five justices by the time he leaves office. instead, we all know the history. his support begins to weaken and in march of 1968, he announces he will not run for reelection. by the summer of 1968, it seems pretty clear the will have a tough time winning the election. this means johnson's successor will likely nominate the
8:05 pm
replacement for the chief justice. warren, in june of 1968 decides to preempt this possibility. he makes an announcement that he will retire as chief justice of the supreme court upon the confirmation of his replacement. what warren is telling conservative senators, you have a choice, you can confirm whoever lbj nominates or i will be there as the chief justice continuing to issue these liberal opinions. the expectation is most members will more or less go along with that. even if they don't like the idea of johnson naming a replacement. there is one other thing that is in the back of the minds of both warren and johnson. johnson is arguably the most gifted president in american
8:06 pm
history and if not the most gifted -- the second or third most gifted with understanding how congress operated. as johnson nominates a replacement, he is thinking of this. these are all supreme court nominations in the last two political generations. all the nominations from fdr, truman, eisenhower, kennedy, and johnson. take a look at this middle column here. most of these nominations are confirmed with the letter v. that means there is a voice vote. they do not bother to hold a roll call. almost all of the others are overwhelmingly confirmed by the senate. i the late 1960's, there has become this expectation that yes in the constitution it says the president nominates the supreme court justice and has to confirm the selection.
8:07 pm
why would -- whoever the president nominates will get confirmed and this is what johnson assumes will happen in 1968 as well. in june of 1968, the assumption is johnson has out fought his opponents again. he will get a liberal chief justice on the supreme court who will serve throughout the 1970's and ensure the supreme court will remain liberal. there is another chart that johnson might have wanted to examine but did not. that is the chart of his declining public support. the chart here on the left is his approval as measured by gallup. he goes up and down a little but there is a pattern. it goes from quite high in the 1964. by early 1968 his approval rating is hovering around 35%.
8:08 pm
that is seven or eight points below what trump's approval rating currently is. it is a very low approval rating for lbj. along with the fact that he is not terribly popular, he is not running for reelection. the last time there had been a supreme court justice confirmed by the senate who had been nominated by a president who had announced he was not running for reelection was 1893. that was a long time ago. this charming looking man. he was a grover cleveland nominee. serve for a couple of years and got ill and died in the 1890's. from this standpoint, there is a good precedent for johnson. a sickly any president who is -- basically any president who
8:09 pm
is nominated gets confirmed. why this precedent, johnson may have some problems here. he is not popular, the senate did not have much of a precedent in terms of confirming late nominees. johnson is looking at one other vote. he fails to anticipate where the key opposition will come from in 1968. this is the chart johnson is looking at as he is making his selection. this is the roll call vote for thurgood marshall's confirmation in 1967. you will notice this is not a unanimous vote like many of the others in the 1930's, 1940's, and 1950's. there are 11 senators who voted against thurgood marshall's confirmation. the 11 are up top on the chart. if you squint closely you can pretty much identify where these people are coming from. they are all from the south. 10 of them are democrats.
8:10 pm
this is a peerriod, and the 11th period, and the 11th is a former democrat who is at this point a republican senator from south carolina. in johnson's mind as he is thinking of who will be a good replacement for warren, what he is saying is the people i need to preempt is a southern opposition. if i can come up with a nominee who can appeal to the southerners, the nominees will go through without any problem. johnson makes this a little too complicated. he concludes that he does not want to name a new replacement. instead, what he wants to do is elevate his friend. justice fortas. so he wants to come up with a replacement for abe fortas as associate justice. he will have to make two nominations, rather than one. the name he is most interested in looking at is homer thornberry. here's a photograph of them. he knows him very well.
8:11 pm
thornberry had succeeded him in the house of representatives. johnson had been appointed thornberry to the fifth circuit based in new orleans. the appellate court judge nominated by johnson, he is a former congressman. very friendly with southern politicians. he is particularly friendly with richard russell, the most powerful of the southern democrats. johnson senses thornberry is somebody who will appease these southerners. he will ensure that abe fortas will be confirmed. for johnson announces -- before johnson announces thornberry, he gets on the phone with several key figures. generally, when it johnson would call you, this was not a two way conversation. johnson was not soliciting information.
8:12 pm
he was basically encouraging you to think as he did. his first call goes to justice fortas. he wants to get feedback for who would be a good replacement for fortas as associate justice. johnson has already made up his mind and his job is to basically say yes. thornberry has -- she was thornberry has some disadvantages. he was congress, city councilman, state legislator. i think you will be awfully good on the court. from the standpoint of the liberal press, they will not give me a fair trial. the times are against me. they are anti-semitic. by god. they are anti-south.
8:13 pm
because i live in texas. i don't have style. that is the only thing they have against me. how will you rate these people one through five? from the standpoint of my practical problem and what i may want to do on all the other things. i have to have sure votes. i look at this not from your standpoint, look at this from my standpoint. you know me and what i want. i want somebody i will always be proud of his vote. then i will be proud of his opinion. i want to be proud of the side he was on. i want to be sure he votes right. that is the first thing.
8:14 pm
>> >these are private conversations. fortas is not aware he is being recorded. he is perfectly candid here about what he wants. the chief goal here is to get someone who will vote the way johnson wants. one suspects that the conversation had a similar line, i am sure it did with trump's nominations as well. johnson's goal is to ensure a liberal majority on the court. he thinks he can do that with abe fortas and thornberry. johnson reaches out to key senators. he understood how the senate operated in the 1950's exceptionally well. his problem will be the senate in the 1960's operated quite differently. johnson in the 50's believed he could filter through key senate leaders. he reaches out to richard
8:15 pm
russell, a democratic senator from georgia. a segregationist, but the most prestigious of the southern democrats. russell likes thornberry a lot. he doesn't particularly like fortas. johnson reaches out to the minority leader. head of the senate republicans, everett dirksen. he and johnson had worked closely on the civil rights act. he was a supporter of african-american civil rights. he knows fortas and likes him. he also knows and likes thornberry. johnson also reaches out to mike mansfield, the majority leader of the senate, representing some liberal moderate democrats. he isn't thrilled about fortas's nominee but will go along. in late june of 1968 it looks as if this is a done deal. fortas has been nominated, thornberry is the associate.
8:16 pm
the three most powerful members of the senate johnson believes are already on board is willing to support the confirmations and this is a done deal. johnson's problem is that he essentially lost a decent amount of power. he hasn't conceptualized that and he will learn it very quickly in the summer of 1968. two things happen almost immediately. the first, 19 republican senators signed on to a public statement prepared by this man, robert griffin, a republican senator from michigan. it comes to be known as the round robin. it articulates the view that will reappear in american life in a thousand 16.
8:17 pm
-- in 2016. it is potentially the same argument mitch mcconnell makes against the merrick garland nomination. we have a vacancy for the supreme court, a presidential election going on, we will withhold our support from any nominee on the grounds that the new president should be able to make this choice. >> [indiscernible] >> johnson at this point had been elected in 1964. griffin has seen the polls. by june of 1968, nixon has assumed a fairly healthy lead over hubert humphrey. griffin is saying he is confident nixon will win. he basically says i want a republican to make the nomination rather than a democrat. if the polls were flipped. let's say we are in an alternative world and hubert humphrey were somehow ahead by 15 points in the polls. i suspect griffin would have
8:18 pm
said let's go along with this. he gets a significant chunk of senate republicans. 19 senators who were signing on to this statement. remember, we have 11 senators. 10 of whom are democrats. on paper, we have almost 30 senators who seem to be skeptical about a possible johnson nomination. the johnson white house staff does not detect this. just at the time as the griffin round robin is coming out. johnson's liaison team in the white house that basically counts votes in congress prepared these documents for lbj. they say this is a shoe in. we have roughly 70% of the support in the senate. we have a handful of opponents but you don't need to worry. fortas is going to get confirmed.
8:19 pm
on paper, from the president's standpoint, this nomination seems to have gone very well. in reality there are big problems emerging that they do not seem to be detecting. johnson privately in late june and early july of 1968 is telling his aides that griffin is bluffing. yes, there are 19 republicans who have signed this letter, but in reality all of them will not vote against fortas and thornberry. they will back down when the nominees get to the floor. this is not what happens. johnson does not quite understand. then there is a second problem. dating back to louis brandeis, supreme court nominees have gone before the judiciary committee. it had been a fairly normall practice where supreme court nominees testified before the committee and then asked their opinions on constitutional
8:20 pm
issues and offer feedback. these tended to be quite routine. nothing like we saw the last few weeks. nothing like we have seen before. nothing like where there would be a television spectacle. you have to go through the motions. the problem for johnson is that the judiciary committee in 1968 is probably the single most hostile committee to the president and liberal philosophy that exists. think back a few weeks ago to the brett kavanaugh hearings. we basically have 19 member committee. 10 very conservative republicans, nine fairly liberal democrats. it is an ideologically split committee. that is not the case in 1968. the chairman of the committee is
8:21 pm
this man, jim eastland, a democratic senator from mississippi. he voted against thurgood marshall's confirmation and voted against the civil rights act. voted against the voting rights act. the second ranking democrat on the committee, john mcclellan, democratic senator from arkansas had been absent from the marshall confirmation but had made clear he opposed marshall. voted against the voting rights act and voted against the civil rights act. sam ervin, who we will encounter again in this class, democratic senator from north carolina voted against the marshall confirmation, voted against the voting rights act, and voted against the civil rights act. these are the three most senior democrats on the judiciary committee.
8:22 pm
these are senators who today would be among the most conservative members of the senate. they are bitter critics of the warren court and the decisions. essentially, what they decide amongst themselves, the chair of the committee controls how the process operates. the key person in the cavanaugh hearings was chuck grassley. the republican chairman who presided over the hearings. what these three decide as they will use this opportunity to put the warren court on trial. to basically bring abe fortas before their committee and grill him on the variety of the warren court's decisions. instead of a routine hearing, what he gets is questions about specific decisions, he doesn't give consistent answers. sometimes he says he will defend the decisions and sometimes says
8:23 pm
he cannot talk about them because he cannot talk about how the court may decisions. the committee also starts asking questions about fortas's'advice to johnson. it is highly improper. a supreme court justice should not be providing political advice to a sitting president. everyone knew fortas was doing it. he says he cannot give this advice because it would be an improper intrusion into the court's freedom of action. the conservative democrats say that does not make any sense. you are willing to talk to the senate. fortas -- this is always a problem with fortas and lbj. he thought like a lawyer intended to give these very specific, legalistic answers that tended to sound very defensive. he was not a particularly good
8:24 pm
witness. the star of the hearing is not any of the democrats. the star of the hearing is this man, strom thurmond. republican senator from south carolina. he flipped to the republicans in 1964. he was a demagogue. he understood how to prosper in politics. he was a sharp proponent of civil rights. in his mind, the questions coming from fortas and mcclellan were too legalistic. they weren't going to attract the attention of the public. he goes over fortas's judicial record. what thurmond noticed was he had frequently been in 5-4 majorities in a series of decisions that the warren court made over pornography issues.
8:25 pm
where the court struck down state laws restricting the dissemination of foreign pornography. strom thurmond saw this as a liability, someone who was outside of the ideological mainstream. he welcomes as a witness and member of the minority, they get to invite a handful of witnesses. this man, james clancy. he is head of citizens for decent literature, and anti-pornography literature. he describes in quite robust to details, the plot lines of various films and books that fortas's decisions upheld as non-obscene. this line of attack that fortas is a pro pornography justice starts to resonate.
8:26 pm
a lot of conservative members start to distance themselves. both russell and dirksen retreat a bit. russell comes out against fortas . dirksen says he might support him, he might not. the problem here is he does not have any close allies on the judiciary committee. he finally turns to george smathers, a democratic senator from florida. a low ranking member of the judiciary committee. a close personal friend of jfk and lbj. he tries to get a sense from george smathers, why is this committee process taking so long?
8:27 pm
what george smathers tells him is that these senators are very interested in the pornographic films and indeed he suggests they frequently want extra time to view these films in person to determine their level of pornography. he is telling johnson that eastland is using procedures to delay things. if it is delayed after the election it looks as if fortas will have little chance that nomination. two contextual items, johnson references this film called the graduate. dustin hoffman is the star. it is seen as a very racy film in the context of 1968. hoffman is seduced by the mother of one of his friends. george smathers talks about his own views for pornography here.
8:28 pm
he had a reputation for a very active social life. that is not the portrayal george smathers gives of himself in this conversation. [video clip] >> i choose not to look at it, others choose to look at it. this crosses a line, i guess. it worries me. i choose not to look at it, others choose to look at it. i don't look at it. i have not seen it. i don't know whether or not this is the kind of thing that should be going around or it shouldn't. they will look into this very
8:29 pm
deeply. would you vote on it next wednesday? >> we are due to vote on it next wednesday. with the cooperation of eastland, i don't know how. he is referring to a rule of the judiciary committee that allows any member of the committee to delay the vote by one week.
8:30 pm
as you are dealing with a president that is running out of time, the repeated delays will cause significant problems. the pornography argument resonates with the public. it is the first supreme court nomination in american history that all of us would be at least somewhat familiar with. the public is engaged with the confirmation. they are reaching out to members of the senate. the letters that senators are getting in the pre-internet age. you contact the senator's office by typing out a letter. the letters they are getting are overwhelmingly opposed. these are a couple of photos of letters sent to a democratic senator from north dakota. he was one of fortas's strongest defenders in the senate. they are concerned about what they are hearing on fortas and
8:31 pm
they are saying he is making too many compromises with the issue of pornography and you cannot compromise with the devil. this is sort of problematic. let's say you are an undecided senator. you are getting all of these letters opposing fortas. johnson will not be around to protect you next year. you might be coming up for the election in 1970. everybody has strong opinions. you might be inclined to vote no and avoid the problem. the court starts to erode quite significantly -- the support starts to erode quite significantly. johnson gets on the phone with ramsey clark and starts complaining that griffin and thurmond and the senate republicans had been spreading unfounded rumors about fortas. it was time for the democrats to start spreading unfounded rumors about griffin to even the score. as we see, clark does not get a
8:32 pm
word in. [audio clip] pres. johnson: griffin's on all the time. got a big press conference this morning. we just get tried and convicted every day. get somebody that can write some mean damn speeches that they have to deny and let them do some research. i said that is what you have to do. do the research instead of attacking you. i find some reason that griffin's is in this thing. he said a week before that he was against anybody. he was not worried about pornography. i can look at his face and tell that does not bother him. he was worried that he could not make a partnership out of the chief justice. the republican chief justice had
8:33 pm
not delayed it and took politics with it until he could get in. he said it days before we named them. >> this is desperation. when your tactics are to say nasty, uncorroborated things about republicans, you are probably going to lose. griffin delivers the final nail in the coffin for fortas in the early fall of 1968. griffin was a quite talented senator. he said he had heard rumors of him being unethical. he says, my office. what he finds out is that fortas had been giving a significant cash bonus. $15,000, at that time it is not an insignificant amount of money to teach a very short seminar at american university law school. american university is in washington, d.
8:34 pm
c. this money had not come from american university. instead, it had come from a handful of private donors who were friends of fortas. this sounds uncomfortably close to being a bribe. the dean of american university law school says that $15,000 sounds like a lot of money but he was doing more than teaching a class. he had to prepare a syllabus. as we know that is very expensive. it is not a credible allegation. the committee invites fortas to come back before it and explain what he did for the $15,000. fortas says nope and at that point the senate democrats and republicans announce they will filibuster the nomination. they will not allow it to come
8:35 pm
to a vote. it can only be breached if two thirds of the members of the senate vote to end debate. it is clear that will not happen. fortas by this point is reduced to hoping for the symbolic victory. he is hoping a majority of the senate will vote to impose culture. saying a majority of the senate wanted me on the supreme court and these conservatives blocked me. the final vote is 45-40 three. cannot even get to 52 impose cloture. at that point the nomination is dead. october of 1968, he is still in office for a few months. he does not quite give up but this amounted to his last chance. fortas withdraws the next day.
8:36 pm
warren is still on the court but has made clear he does not really want to stay on the court. as all of this is occurring, the presidential election in which the supreme court has emerged as a major issue for both of the challengers. george wallace, as civil rights opponent, governor of alabama. he runs as a candidate of the america independence party. strong opponent of civil rights. he argues the warren court insulted the power of african-americans, criminals, atheists communist, at the expense of real americans. he gets strong support in the south.
8:37 pm
fairly strong support in some white, ethnic areas in the north. very late in the 1968 campaign wallace is pulling in double digits in brooklyn, staten island, his best burro in new york city. in queens, and in upstate new york. he is not just a southern candidate. indeed, he poses a problem for the republican nominee, richard nixon. if wallace siphons to many conservative votes, he would help the democrats win with the minority of the votes. the strategy was called at the time a southern strategy. it was much broader of challenging the precedence of the warren court. appealing to what we would call a racial backlash vote. he was doing so in code.
8:38 pm
you won't hear anything that the civil rights act was bad or that he was opposed to equal rights for lack people. he would leave impressions of the mind. the issue he seizes on his crime. he says the warren court has made too many decisions in favor of the rights of criminals and it created dangerous situations for society as a whole. here is an example of a television ad he runs in 1968. it is very cleverly constructed. there is only one person in this advertisement. we are left to imagine who the person pursuing this woman actually is. [video clip] crimes of violence in the
8:39 pm
united states have almost doubled in recent years. today, a violent crime is committed every 60 seconds. a robbery every 2.5 minutes. a mugging every six minutes. a murder every 43 minutes. it could get worse unless we take the offensive. freedom from fear is a basic right of every american. we must restore it. >> the video of that ad does not appeal to racial sentiment at all. we are seeing a woman walking down the street. if you are a viewer in 1968 and
8:40 pm
you happen to imagine that an african-american man was following that woman, that might be what is in your mind. it is not what nixon says. the strategy in 1968's plausible deniability on the issue of race. he seems to be talking about the idea of crime and it seems to be an emphasis on the idea that african-americans are criminals. he does not really push the issue in a way that wallace does. where those numbers accurate? they were perfectly accurate numbers. there was a crime wave. there are riots in most urban areas in the u.s. starting in 1964 and going through 1968. every summer there are major riots. one time in new york, one time and los angeles, in newark, rochester, new york. the answer he is giving is a simplistic answer. do know how that compares to
8:41 pm
now? we will talk more about this when we get to the 80's and 90's. violent crime rate is way down from the 60's and 70's. the severity of these crimes has increased because the power of weapons has increased. murder is down, armed robbery is down, muggings are down. this is a period with a much more dangerous period if you want to use that. makes it is not inventing the issue. he is putting a particular frame on the issue. the other policy backdrop here is that after the assassination of martin luther king and the assassination of robert kennedy, congress passes a crime control act. the primary thrust of this act is a gun control measure.
8:42 pm
a fairly weak gun control measure. from nixon's standpoint, the underlying argument is johnson and liberals in washington are interested not in protecting this woman walking down the street. they are interested in taking away or limiting the rights of guns for americans. nixon overwhelmingly -- johnson carried 44 of 50 states. nixon basically sweeps the country, wallace carries a handful of country -- states in the south. as all of this is going on, johnson is still trying to come up with a scheme to put a replacement on the supreme court. what he thinks is a possibility is to use the recess appointment
8:43 pm
power. this very obscure constitutional clause that was commonly used in the 19th century. it said when there was a federal vacancy and congress was out of session on a recess, the president could name a replacement that would serve until the end of the next congressional term. what johnson is thinking in late october and early november, before the vote, maybe what i will do is congress is in recess. i will name a recess appointment as chief justice. it will not be fortas. name a liberal. the liberal he seizes on is goldberg, the former justice he had driven out in 1965. the hope was if he named goldberg as a recess appointment and goldberg was in place when nixon became president that
8:44 pm
nixon might be somehow pressured to nominate goldberg for a full term. the chances of that happening were not high. nixon figures out what he is doing. almost immediately after nixon wins the election, he issues a public statement inviting him to remain in place for the remainder of the term. johnson concedes that the game is up. he calls warren, this like his conversations with fortas. it was a quite improper call. we have johnson and warren trying to come up with a scheme. this is from november of 1968. this is the last time he thinks of the possibility of the supreme court nominee. [audio clip] pres. johnson: the press will be asking us what right does nixon have to say it will end january
8:45 pm
the 20th. we committed we will not name anyone. that leaves me in bad shape with goldberg. what we said to goldberg as this. i told people to talk to me on his behalf. i don't think he could get confirmed and i think it would be tragic for his life. if there were evidence that i was wrong, i would certainly want to preserve it if i could. i would certainly regard him as the appointment. that is my problem with him. i don't think there is much of a chance. i'm afraid he won't understand. he will think i have been playing and knowing the whole time that this might happen. a typical johnson call. >> the other person does not really get in much. warren gets the message and calls goldberg. we tried for the recess appointment but it did not work
8:46 pm
out. he finally resigns in june of 1969. at which point, nixon nominates warren burger. a fairly conservative judge from the eighth circuit. he was based in minnesota to become chief justice of the supreme court. we replaced a white liberal chief justice with a fairly conservative chief justice. that creates a more conservative court. this is only nixon's first appointment. nixon will get to make four supreme court appointments in his first term. the second is an unexpected one. justice fortas. one of the great ironies of this is johnson, by trying to promote fortas from associate justice to chief justice gives the way for fortas to collapse entirely and
8:47 pm
be removed. the public had been exposed to this idea that fortas is a little ethically challenged. we have the $15,000 deal at american university. he seemed to be consulting with lbj inappropriately. it was clear this guy was not a paragon of ethics. press start looking into his background. fortas he was a very high-priced lawyer before he went on to the supreme court. being a public servant cost fortas a decent amount in terms of finances. in 1969, it comes out that fortas had been accepting a retainer. every year, a $20,000 payment from a financeur who was under criminal investigation. if you're planning a career as a supreme court justice, it is not
8:48 pm
a good idea to accept a payment from someone who is subject to criminal investigation. this is highly unethical conduct. this probably would have never come out if the press was not prompted to look into fortas. nixon start sending out rumors that if he does not resign, republicans and conservative democrats will seek to impeach him. it seems not implausible that he would have been removed from office. it certainly would have been a difficult flight. fortas concludes that the integrity of the court is such that i need to resign. in the summer of 1969, fortas steps down. the guy who was appointed in 1965, who everyone assumed would stay on the court at least through the 1970's is out after four years. nixon goes to the justice department. in 1968, nixon used a southern
8:49 pm
strategy. approaching the racial backlash to get southern votes. nixon does not carry some southern states. he loses texas to humphrey, loses arkansas, mississippi, louisiana, alabama, and georgia to george wallace. he says look, why don't we use this vacant supreme court appointment as a way of appealing to southern conservatives. showing them if they affiliate with the republican party, they will get a concrete benefit. the warren court was not popular in the south. nixon concludes that will be a way of bolstering republican support. this seems to be a quite good judge from north carolina on the fourth circuit. it is an appellate court in the
8:50 pm
mid-atlantic state. his name is clement haynesworth. veryrvative judge, popular among north carolina republican types. a republican nominee at a time where there were not many republican judges in the south. i had basically been a one party, democratic area. the problem is haynesworth actually has a pretty good judicial record. not a great judicial record. there are some rumors of ethical improprieties, he had a couple of votes on civil rights issues that civil rights groups perceived as not particularly supportive. a group of young liberals in the senate kind of had been bitter to buy what happens to abe fortas decide they are going to fight against haynesworth.
8:51 pm
ted kennedy, democratic senator from massachusetts. a very young ted kennedy at this point had been elected in 1962 to take the seat that his brother had once occupied. kennedy's name to the judiciary committee. one of the democrats point people on civil rights issues throughout the 1960's. he served three terms from indiana, he very conservative a conservative state then and now. he narrowly was elected in 1962, narrowly reelected in 1968, narrowly reelected in 1974, and finally gets crushed in 1980 by dan quayle who will la ter pop -- later pop up as george h w bush's vice president. even though he was from a
8:52 pm
conservative state, he he took liberal positions. he was a democratic activist on constitutional issues. he is critical of haynesworth as well. he is worried that from the court, the result will be a string of anti-civil rights decisions. the striking thing about the haynesworth vote is not the kennedy opposition. it is we have all of these red dots on the rollcall chart. these are senate republicans who cast votes against haynesworth's confirmation. this is a time where we have conservative democrats and liberal republicans. the last republican to be elected to the u.s. senate from new jersey. that was in 1972, a very liberal republican.
8:53 pm
jacob javits, the last of the new york liberal republicans would stay on the senate until 1980. margaret chase smith, publican -- republican senator from of consciencetion against joseph mccarthy. charles mathias, a republican senator from maryland. basically every liberal or moderate republican in the senate, and even a couple of conservatives, robert griffin, charles caddell, a short-term interim senator. goodell had been hoping for a full term if he could get elected. he goes down to defeat, 55-45.
8:54 pm
nixon is astonished. he assumed this would be a safe thing. the fortas confirmation was a one-off. the fortas confirmation change d the rules of the game. they would be more willing to look at supreme court nominees with a degree of skepticism. as we will see over the next several weeks. that pattern continues at several points in the future. nixon at this point has two options. the first is to conclude this is a democratically controlled senate, republicans are not the majority. he concluded that in that senate , there simply is not a majority for a very conservative southern judge who might be perceived as hostile to civil rights.
8:55 pm
and he needs to look elsewhere. that would have been the reasonable response to the vote. nixon often did not take the reasonable response. if he is more conservative than haynesworth, that is fine. i don't particularly care. it has to be another southerner, if at all possible. justice department takes a look at appeals court judges. they do not find anyone who would be appropriate, a republican. who seems to be of a sufficient age to be on the supreme court. they see a district court judge, the lowest level of the federal judiciary from florida. this man named g harold carswell. they tell nixon he is not
8:56 pm
perfect, because he is not an appeals court judge. the traditional path for supreme court nominations at this point was you want to move from the appeals court to the supreme court. they say he is a republican. he is very conservative. if you want to go with a southern conservative nominee, he is your man. nixon says that sounds great, we will nominate him. there are two problems with the carswell nomination. the first is that haynesworth did have a couple of votes that were hostile to civil rights. it was no indication that haynesworth was racist or that he was personally hostile towards african-americans in any respect. he would stay on the circuit court after his defeat. for several years, he was well-liked liked by both parties. you might have liked his votes
8:57 pm
or disliked his votes, but he was not personally problematic. carswell, before entering the judiciary had run for public office in georgia. it doesn't appear as if the nixon people pick this up. in 1948, running for state legislature in georgia, he delivered a speech saying he was in favor of segregation forever. if haynesworth is unacceptable because of the civil rights positions, carswell will be worse. nixon pushes senate republicans. saying we cannot let the senate democrats do this to us twice. you have to stay with me on carswell. it looks as if carswell, despite the embarrassing vote might make it through. then a second problem emerges. district court opinions get appealed to the appellate courts .
8:58 pm
for the most part, district court judges get it right. you don't see tons of decisions that are overturned by the appeals court. sometimes it might be 15 or 20%. carswell on the other hand has seen his opinion turned over at a higher ratio than any other district court judge in the country as of 1969. a lot of these were not cases that carswell is making anti-civil rights decisions and the appeals court was saying you cannot do that. these were technical decisions. carswell seems not to be understanding the basics of the law. there quickly emerged a consensus among both parties that this was a man who was not particularly smart. whether that was a good nominee for that to be on the court. this becomes crystallized in a senate debate. the republican point person, the senator from nebraska, his
8:59 pm
argument for carswell is that the mediocre people of the united states deserve representation on the court as well. this is a very peculiar argument for a supreme court justice. from the senate republicans who had been inclined to go along with nixon, even though they did not like carswell and his civil rights opinions. this is the argument, that the mediocre are entitled to representation is a bridge too far. carswell goes down by a narrow margin. 45-51 is the vote. carswell is gone. as if confirming the argument that his critics made about his
9:00 pm
intelligence or lack thereof. carswell decides that he will give up his position. life, tenured position on the federal judiciary, to run for the senate the following year in 1970. he is certain he will be elected and he can become a prominent national figure. he does not even get the republican nomination and he is never heard from again in political life. at that point, nixon concludes we will not get a southerner -- at least a southern conservative in this particular environment. he goes to the justice department and says get me a conservative who will be an acceptable nominee. the justice department turns to harry blackmun. a close friend, reliable conservative. he'll vote the nixon way on judicial matters.
9:01 pm
blackmun we will discover next time as the author of the roe v. wade decision. he is the most liberal member of the supreme court. it's a reminder these confirmation battles can have a lot of impacts. the country gets carswell, so nixon gets a second justice but it does not go as well has he had hoped. there are two final nixon confirmations. both come in 1971, almost back-to-back. justice john marshall harlan the second, grandson of the great justice harlan, falls ill in the summer of 1971. resigns from the court and dies a couple of months thereafter. justice hugo black appointed to the court by fdr in the 1930s suffers a stroke in 1931, dies a couple of weeks later.
9:02 pm
so nixon all of a sudden has two vacancies. the justice department has found a southerner who will be acceptable. lewis powell from virginia, chairman of the american bar association. acceptable to senate democrats. he's easily confirmed. but nixon goes to the justice and says, look, what i want is a strong conservative. a principled conservative, someone who will fight for conservative ideas on the court. that's the first obligation. but the second obligation, nixon said, is ideally what we would like is someone that will help us for the 1972 campaign. this is late 1971. the 1972 campaign is gearing up and republican polling suggests that a particularly soft area for democrats in 1972 are
9:03 pm
northern white ethnic voters, who are concerned about issues like crime and the vietnam war, and what they see as the democrats as being too friendly to hippies and radical students and not consumed enough with hard working union voters. in particular, ethnic voters. catholic voters, polish voters, irish american, italian americans, in new york city, in chicago, in cleveland, in detroit, and in key northern areas. so nixon tries to see if the justice department can find a good conservative ethnic nominee. the problem is, this is a point where for the most part catholic voters tended to be democrats. dwight eisenhower had nominated a catholic in the 1950s, justice brennan, he turned out to be very liberal. the court wants to avoid this. nixon gets on the phone to press the justice department, here he is with john mitchell, who is his attorney general, to see if
9:04 pm
there is an alternative to rehnquist. someone who would be very conservative but also might satisfy ethnic political desires. >> now, on the second thing, john, if it comes, can i urge you to see if you can find a catholic? >> another brennan? >> christ, no. that's what i mean. >> i tried before. >> they got brennan, no. you don't have an honest italian, do you? >> they are awful hard to find. >> a pole. >> no. >> oh, christ, no. he's a protestant. >> all right. >> take a look at the catholics, will you? i do. politically, we're going to gain a lot more from a catholic.
9:05 pm
-- protestant, -- if he's a conservative, a catholic conservative is better than a protestant conservative. we really need that -- the point is it will mean more to the catholics in my mind than it will to the protestants. well, sounds good. after i die. you know and i know there aren't any. >> there are no conservatives out there. >> this is not exactly a reassuring conversation about an administration that's looking for high qualifications to the court. mitchell does his due diligence and concludes there are no acceptably conservative catholics to nominate and so rehnquist is selected. of nixon's four nominees rehnquist is the one who most closely full fist his vision. -- fulfills his vision. he's a strong conservative, very smart. he had come to washington in the 1960s, having worked for barry goldwater. he'll remain on the court through the bush two years.
9:06 pm
he eventually will be elevated to be chief justice by reagan and we'll encounter him over and over again over the considers of -- course of the semester. so essentially what we have is a transformation of the court from a very liberal court to a much more closely divided court with a strong conservative. rehnquist a fairly conservative chief justice. moderate conservative justice in powell. and blackmun who will become liberal although in the 70's, he is more centrist or center right. he drifts to the left in the beginning of the late 1970s, and so what liberals discover, they had assumed in the 1960s. they control the court for another generation and they issued a series of division that is would protect individual rights regardless of what the public was saying. you can't rely on that as an approach that we'll see next
9:07 pm
time when we look at some of the social controversies in the 1970s, liberals struggle to, once they no longer have the court to figure out a way to advance their cause politically. any questions that are not clear? >> go back to the strategy, mr. johnson had predicted once he passed the civil rights bill that they would lose the south 400 years. was that an open discussion that he had made, or he just basically thought that privately? >> that's a conversation that he purported, although this is a rare johnson conversation that wasn't recorded, with bill moyers, but he never said it publicly. what johnson does especially in the 1964 election, continuing through at least 1966, is to try to come up with a new southern coalition. he assumes correctly, the democrats are going to struggle with white rural southerners.
9:08 pm
most of these people were critical of the civil rights movement in the 1960s, and these are people who vote for wallace in 68, and overwhelmingly for nixon in 1972. george mcgovern doesn't get 25% of the vote in louisiana, mississippi, and alabama, but johnson does not think it's impossible that the south will remain democratic. instead, what he's hoping for is to create a new coalition of african americans who now have the right to vote. he wants them to register and get out to vote, and urban, better educated whites. especially from places like atlanta or charlotte, or new orleans, or, you know, boston, san antonio, dallas, houston, and texas, who he thinks they might be moderate, they might be pro-business but he thinks they will be open. that's a coalition to some
9:09 pm
extent that started to form in the last few years, especially in a state like virginia or in north carolina. but in the late 1960s and 1970sthat coalition never quite forms. we talk about this a little more next time. in part because urban conservatives, white conservatives in the south in the 1970s are just conservative, but also because there are tensions within this movement in the south, especially over issues around public schools. african-americans want to go to integrated schools, if they want to achieve that, they will have to have bussing to achieve that. well educated whites would want our kids to go to good schools, we don't want them bused halfway across town. it turns out that johnson's hope that he might be able to create a narrow majority of whites and blacks to compensate for civil rights does not come to fruition. johnson had been able to run in 1968, he probably would have been a stronger candidate than humphrey.
9:10 pm
he might have carried a few southern states. the democrats are on their way out in the south. the only democrats who do anything in the south after lbj or jimmy carter in 1976, and bill clinton in 1992, these are white democratic governors from the south and they both are running kind of atypical years. we saw clips from the phone calls. -- >> we saw clips from the phone calls. -- the controversy around the nixon recordings, i was unaware that lbj was recording his phone calls as well. was there any backlash to that at all, maybe not to the nixon extent but anything at all? >> this is wholly unknown. kennedy also had recorded.
9:11 pm
kennedy, johnson and nixon, the three presidents who extensively record, and these are brilliant political minds. neither kennedy nor johnson nor nixon realized that they are creating a record that could be subpoenaed at this time, this is pre-watergate, these are the president's personal property to do with as he saw fit. so in theory, nixon, as we'll see next time, nixon could have destroyed the tapes, what johnson was taping for, kennedy taped for historical prosperity. he wanted to use the recordings to serve as a basis for his memoirs. johnson recorded because johnson did deals on the phone. he was basically wanting commitments from people so he wanted a record in case people went back on him with his deals, he could say, look, you know, you told me on september 22 you were going to be with me and i have a recording of this. but no one else knew. so when the watergate hearings break, and the nixon tapes are revealed, the assumption at the
9:12 pm
time is that the only person who -- only president who had ever recorded was nixon, and then they kind of sheepishly come out that johnson and kennedy had also taped. there was a small amount of typing with eisenhower, roosevelt and fdr but insignificant amounts. for our purposes, these are incredible historical sources because they kind of bring us inside the oval office. there are no presidents who tape after nixon because they understand they could be subpoenaed. but you can imagine other technologies, email in the late 1980s and early 1990s, apparently the bush administration did a lot with emails because it was a new technology then and they didn't realize they were creating a permanent record. text messages in the clinton administration, again this idea of creating permanent records, but we have no other taping.
9:13 pm
>> would you argue nixon was and a president second? it seems like he was trying to find out, how can i get elected. >> nixon is a foreign policy president. nixon's goal is to deal with foreign policy, foreign policy issues, and so, in his mind, domestic matters, the goal of the domestic matter is to get him re-elected. so, he wouldn't have done deals like this with domestic actors on china or the soviet union. that he cares about. who is on the supreme court, he doesn't particularly care as long as it will serve his political purposes. and that's a pattern you will see with nixon on a whole bunch of domestic issues, not just the supreme court. >> isn't it interesting to see the integrity, the whole chief justice, being able to like have a conversation about being, basically being enslaved in his decision?
9:14 pm
it also goes back to hamilton. what the justice is supposed to be, it's like kind of going to the far left. >> one of the things with the tapes, this is highly inappropriate behavior. he should not be having private conversations with lbj. rehnquist can't cooperate. rehnquist recuses him from watergate hearings. you have to assume that these kind of conversations occurred with truman and fdr and probably with eisenhower. we just don't have recordings of these conversations. to some extent we've moved towards a more ethical supreme court. it's highly unlikely, for instance, that in 2015, elena kagan would head off to the oval office and chat with president obama. she recognized that that sort of thing would be improper. but neither ford nor johnson see anything wrong with this kind of conduct in the 1960s.
9:15 pm
you have to assume, you know, let's say there was a constitutional challenge to a johnson bill. could any of us really be confident that ford would look at that dispassionately and say, i think this is unconstitutional so i'm going to vote against lbj although i really like him? it raises questions of partiality. this then comes tumbling down, this issue of judicial ethics next time with watergate. that's where we are, where we're at. quizzes and a couple of the midterms are up front. >> you can watch "lectures in history" every weekend on american history tv. we take you inside college classrooms to learn about topics ranging from the american revolution to 9/11. saturday at 8:00 p.m. and
9:16 pm
midnight eastern on c-span 3. you're watching american history tv, exploring our nation's past every weekend on c-span3. this week, we are looking back to this date in history. moment thaty is a will live in the memory of those who witness it. the spiritual leader of more than half a billion people all over the face of the earth. inheritor of a lineage of 2000 years is in this house by the chief representative of the world organization made up of member nations who can count over 2 billion people of any kind from any creed, an organization which brought to be 20 years ago. is greeted by the united nations chief -- kennedyourse met him at
9:17 pm
airport this morning. awaitsretary-general inside the threshold of the united nations building. crowds and photographers on either side. the unitedt we call nations headquarters the canadian -- on his way to this historic moment of the greeting by the secretary-general. partyrdinals of the papal follow him, and he passes into the main hall of the building. secretary-general reits -- >> follow us on social media at
9:18 pm
c-span history for more this date in history clips and posts. >> next week, vice president mike pence and presidential nominee kamala harris will debate. this sunday, american history tv looks back to 1980 four, when incumbent vice president george h w bush and new york congressman geraldine ferraro answered questions from a panel of journalists. here's a preview. am pleased. i think i just heard misses ferraro say she would do away with all covert action. if so, that has very serious ramifications in the intelligence community. this is serious business. sometimes quiet support for a friend. let me help you with the and thece between iran embassy in lebanon. iran, we were held by a foreign
9:19 pm
government. a terroristyou had action where the government opposed it. peacet to lebanon to give a chance, stop the bombing of civilians in beirut, remove 13,000 terrorists from lebanon. we saw the formation of a government of reconciliation. for somebody to suggest as our two opponents have that these men died in shane, they better not tell the parents of those young marines. they gave peace a chance. our allies were with us. the british, the french, and the italians. vicealmost resent president bush for patronizing attitude, that you have to teach me about foreign policy. i have been a member of congress for six years. i was there when the embassy was held hostage in iran. i have seen what happened in the past several months, 17 months at your administration.
9:20 pm
secondly, don't categorize my answers either. leave the interpretation of my answers to the american people watching this debate. hasme say further, no one ever said those young men who were killed to the negligence of this administration and others. no one with a child who is 19 or 20-year-old should say that about the loss of anybody else's child. >> watch the full debate in this sunday at 6:30 p.m. eastern, 3:30 p.m. pacific on american history tv. >> on august 18, 1920, women won the right to vote with the ratification of the 19th amendment. to commemorate the anniversary, the national archives hosted a conversation with interpreters from the american historical theater portraying susan b. anthony, sojourner truth, and alice paul.


info Stream Only

Uploaded by TV Archive on