While Nixon was a candidate for president, the sitting Chief Justice, Earl Warren, had long since become a lightning rod for controversy among conservatives: signs declaring "Impeach Earl Warren" could be seen around the country throughout the 1960s. The unsuccessful impeachment drive was a major focus of the John Birch Society.[1]
Warren E. Burger nomination
Painting of Burger
In 1968, then-Chief JusticeEarl Warren announced his retirement after 15 years on the Court, effective on the confirmation of his successor. President Lyndon B. Johnson nominated sitting Associate JusticeAbe Fortas to be elevated to Chief Justice and nominated Homer Thornberry to take Fortas' Associate Justice seat, but a Senate filibuster blocked his confirmation. With Johnson's term as President about to expire before another nominee could be considered, Warren remained in office for another Supreme Court term.
In his presidential campaign, Nixon had pledged to appoint a strict constructionist as Chief Justice. Many speculated that President Richard Nixon would elevate sitting Justice Potter Stewart to the post, some going so far as to call him the frontrunner. Stewart, though flattered by the suggestion, did not want again to appear before and expose his family to the Senate confirmation process. Also, he did not relish the prospect of taking on the administrative responsibilities delegated to the Chief Justice. Accordingly, he met privately with the president to ask for his name to be removed from consideration.[2] Nixon also offered the position to former New York Governor Thomas E. Dewey, who declined.[3]
Instead, in 1969, Nixon nominated Warren E. Burger to the Chief Justice position. Burger had first caught Nixon's eye when the magazine U.S. News & World Report had reprinted a 1967 speech that Burger had given at Ripon College, in which he compared the United States judicial system to those of Norway, Sweden, and Denmark:
I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity. [Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty. No nation on earth goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.
Through speeches like this, Burger became known as a critic of Chief Justice Warren and an advocate of a literal, strict-constructionist reading of the U.S. Constitution. Nixon's agreement with these views, being expressed by a readily confirmable, sitting federal appellate judge, led to the appointment.
In 1969, Abe Fortas resigned from the Court due to conflict of interest charges,[5] creating an opening for Nixon's second nomination to the Court.
Nixon asked Lewis F. Powell Jr. to accept a nomination to the Court at that time, but Powell declined his nomination offer at the time. On August 21, 1969, Nixon nominated Clement Haynsworth, then a judge on the Fourth Circuit Court of Appeals.[6] Haynsworth was opposed by Democrats (possibly in retaliation for the Republicans' rejection of Fortas as Chief Justice),[6]Rockefeller Republicans, and the NAACP. He was alleged to have made court decisions favoring segregation and being reflexively anti-labor. Also, he was accused of ruling in cases where he had a financial interest, although this was never proven. His nomination was supported by the Washington Post, generally considered to be the "liberal" newspaper in Washington, D.C. Haynsworth was later termed a "moderate" who was "close in outlook to John Paul Stevens."[6]
Haynsworth was defeated by a 55 to 45 vote on November 21, 1969. Nineteen Democrats – of whom only Mike Gravel of Alaska represented a state outside the South – and 26 Republicans voted for Haynsworth while 38 Democrats and seventeen Republicans voted against the nomination.[7][8] Haynsworth was the first Supreme Court nominee since John J. Parker (1930) to be defeated by the Senate.
On January 19, 1970, Nixon nominated G. Harrold Carswell to the seat. Carswell was praised by Southern Senators including Richard B. Russell, Jr., but was criticized by others for the high reversal rate (58%) of his decisions as a District Court Judge. Civil-rights advocates also questioned his civil rights record; in 1948, Carswell had voiced support for racial segregation while running for a seat in the Georgia state legislature (in his hometown, Irwinton, Georgia; Carswell did not win the election and moved to Florida where he started his career as a private attorney).
In defense against charges that Carswell was "mediocre", U.S. SenatorRoman Hruska (R-NE) stated, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?"[9][10] That remark is believed to have backfired and damaged Carswell's cause.
On April 8, 1970, the United States Senate refused to confirm Carswell's nomination to serve on the Supreme Court. The vote was 51 to 45, with seventeen Democrats – of whom only Alan Bible of Nevada represented a state outside the South – and twenty-eight Republicans voting for Carswell.[11][12] Thirteen Republicans, all but five from the Northeast,[lower-alpha 1] and thirty-eight Democrats voted against him.[11] Nixon accused Democrats of having an anti-Southern bias as a result.
On April 15, 1970, Nixon nominated Minnesotan Harry Blackmun to fill the Fortas vacancy. Blackmun was confirmed by the Senate by a vote of 94—0 on May 12, 1970.[13] Senators Birch Bayh (D-IN), Al Gore, Sr. (D-TN), Richard Russell, Jr. (D-GA), Barry Goldwater (R-AZ), Karl E. Mundt (R-SD), and John Tower (R-TX) did not vote.[13] Majority Whip Ted Kennedy (D-MA) and Minority Whip Robert P. Griffin (R-MI) made public note on the Senate floor that, out of the six senators not in attendance for the vote, all of them would have voted to confirm Blackmun.[13]
Lewis Powell and William Rehnquist nominations
On August 28, 1971, Justice Hugo Black admitted himself to the National Naval Medical Center in Bethesda, Maryland. Black subsequently retired from the Court on September 17, thereafter suffering a stroke and dying eight days later. At the same time, Justice John Marshall Harlan II was suffering from deteriorating health: Harlan retired from the Supreme Court on September 23, 1971 and died on December 29, 1971.[14]
Nixon initially intended to nominate Virginia Congressman Richard Harding Poff, but before Nixon could formally nominate him, Poff withdrew. John Dean wrote that Poff actually made that decision based on concerns that he would thus be forced to reveal to his then-12-year-old son Thomas that he had been adopted. Poff's concern was that the child would be negatively affected by that kind of information if revealed before he was old enough to understand.[15][16]
In mid-October, Nixon's White House released a list of six potential candidates for the two seats, to which Time Magazine responded with a scathing editorial,[17] stating that Nixon had an "opportunity to redress the embarrassment of his two unsuccessful Supreme Court nominations," but that the names released "demonstrated his inability or unwillingness to nominate renowned jurists to the highest tribunal in the land."[17] The list included: West Virginia Senator Robert Byrd, Arkansas attorney Hershel Friday, California appeals court judge Mildred Lillie, Fifth Circuit judge Paul Roney, Fifth Circuit judge Charles Clark, and District of Columbia judge Sylvia Bacon.[17] Although Byrd's name was on the list, the White House had previously indicated that he was not a serious candidate for the seat.[17]
Nixon thereafter announced his intention to nominate Hershel Friday to fill Black's seat, and Mildred Lillie to fill Harlan's seat; Lillie would have been the first female nominee to the Supreme Court. Nixon relented after the American Bar Association found both candidates to be unqualified.[18] Nixon then approached Lewis F. Powell Jr., who had declined the nomination in 1969. Powell remained unsure, but Nixon and his Attorney General, John N. Mitchell, persuaded him that joining the Court was his duty to his nation. Powell and Assistant Attorney General William H. Rehnquist were both nominated on October 21, 1971.
The Senate confirmation of Rehnquist, a law clerk for the late Justice Robert H. Jackson, was much more contentious. The loudest concerns were voiced by Senators Birch Bayh (D-IN) and Philip Hart (D-MI), who brought up that Rehnquist's nomination was opposed by a record number of unions and organizations, including the AFL–CIO, the United Auto Workers, and the NAACP.[20] The Senate put the concerns to a vote on December 10, 1971, and Rehnquist's nomination passed by a vote of 68–26.[20][21] Of the 26 senators voting to kill the nomination, nearly all were Democratic; only Clifford P. Case (R-NJ), Edward Brooke (R-MA) (the lone African-American senator at the time) and Jacob Javits (R-NY) jumped party lines in the vote.[20] Senate Majority Leader Mike Mansfield (D-MT), after having previously voted "nay," withdrew his vote as a goodwill gesture to Senator Charles Percy, who could not attend the vote; he would have voted "yea" and counteracted Mansfield's vote.[20] In addition to Percy, Clinton P. Anderson (D-NM), Wallace F. Bennett (R-UT), Karl E. Mundt (R-SD) and Margaret Chase Smith (R-ME) did not vote.[20] Minority Whip Robert P. Griffin (R-MI) announced that Senator Smith would have voted to confirm Rehnquist.[20]
With both votes confirmed, Powell and Rehnquist were sworn in on January 7, 1972.
Names mentioned
Following is a list of individuals who were mentioned in various news accounts and books as having been considered by Nixon for a Supreme Court appointment:
United States Supreme Court (elevation to Chief Justice)
↑ Dyer would later be transferred to the newly created Eleventh Circuit in 1981, although he had assumed senior status in 1976 when Alabama, Georgia and Florida were still part of the Fifth Circuit.
↑ Dean later notes that "Bill Pullman from Philadelphia" was suggested by Attorney General John Mitchell because Pullman was a black Republican, but was quickly dismissed by Nixon because such an appointment would put two blacks on the court.[22]
Related Research Articles
Robert Heron Bork was an American legal scholar who served as solicitor general of the United States from 1973 until 1977. A professor by training, he was acting United States Attorney General and a judge on the U.S. Court of Appeals for the D.C. Circuit from 1982 to 1988. In 1987, President Ronald Reagan nominated Bork to the U.S. Supreme Court, but the Senate rejected his nomination after a contentious and highly publicized confirmation hearing.
Abraham Fortas was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rhodes College and Yale Law School. He later became a law professor at Yale Law School and then an advisor for the U.S. Securities and Exchange Commission. Fortas worked at the Department of the Interior under President Franklin D. Roosevelt, and was appointed by President Harry S. Truman to delegations that helped set up the United Nations in 1945.
Warren Earl Burger was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul College of Law in 1931. He helped secure the Minnesota delegation's support for Dwight D. Eisenhower at the 1952 Republican National Convention. After Eisenhower won the 1952 presidential election, he appointed Burger to the position of Assistant Attorney General in charge of the Civil Division. In 1956, Eisenhower appointed Burger to the United States Court of Appeals for the District of Columbia Circuit. Burger served on this court until 1969 and became known as a critic of the Warren Court.
The Supreme Court of the United States is the highest-ranking judicial body in the United States. Established by Article III of the Constitution, the detailed structure of the court was laid down by the 1st United States Congress in 1789. Congress specified the Court's original and appellate jurisdiction, created 13 judicial districts, and fixed the initial size of the Supreme Court. The number of justices on the Supreme Court changed six times before settling at the present total of nine in 1869. As of June 2022, a total of 116 justices have served on the Supreme Court since 1789. Justices have life tenure, and so they serve until they die in office, resign or retire, or are impeached and removed from office.
Harry Andrew Blackmun was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade.
Birch Evans Bayh Jr. was an American Democratic Party politician who served as U.S. Senator from Indiana from 1963 to 1981. He was first elected to office in 1954, when he won election to the Indiana House of Representatives; in 1958, he was elected Speaker, the youngest person to hold that office in the state's history. In 1962, he ran for the U.S. Senate, narrowly defeating incumbent Republican Homer E. Capehart. Shortly after entering the Senate, he became Chairman of the Subcommittee on Constitutional Amendments, and in that role authored two constitutional amendments: the Twenty-fifth—which establishes procedures for an orderly transition of power in the case of the death, disability, or resignation of the President of the United States—and the Twenty-sixth, which lowered the voting age to 18 throughout the United States. He is the first person since James Madison and only non–Founding Father to have authored more than one constitutional amendment. Bayh also led unsuccessful efforts to ratify the Equal Rights Amendment and eliminate the Electoral College.
George Harrold Carswell was a United States circuit judge of the United States Court of Appeals for the Fifth Circuit and a United States district judge of the United States District Court for the Northern District of Florida. He was also an unsuccessful nominee to the United States Supreme Court in 1970.
Speculation abounded over potential nominations to the Supreme Court of the United States by President George W. Bush since before his presidency.
Clement Furman Haynsworth Jr. was a United States circuit judge of the United States Court of Appeals for the Fourth Circuit. He was also an unsuccessful nominee for the United States Supreme Court in 1969.
The demographics of the Supreme Court of the United States encompass the gender, ethnicity, and religious, geographic, and economic backgrounds of the 116 people who have been appointed and confirmed as justices to the Supreme Court. Some of these characteristics have been raised as an issue since the court was established in 1789. For its first 180 years, justices were almost always white male Protestants of Anglo or Northwestern European descent.
Mildred Loree Lillie was an American jurist. She served as a judge for 55 years in the state of California with a career that spanned from 1947 until her death in 2002. In 1958, she became the second woman to serve on the Court of Appeal, a role in which she served for a record 44 years. In 1971, she was considered by President Richard Nixon for nomination as the first woman on the Supreme Court of the United States; however, an "unqualified" rating from the American Bar Association derailed that bid.
The Brethren: Inside the Supreme Court is a 1979 book by Bob Woodward and Scott Armstrong. It gives a "behind-the-scenes" account of the United States Supreme Court during Warren Burger's early years as Chief Justice of the United States. The book covers the years from the 1969 term through the 1975 term. Using Woodward's trademark writing technique involving "off-the-record" sources, the book provides an account of the deliberations leading to some of the court's more controversial decisions from the 1970s. Among the cases with substantial treatment in the book was the decision in United States v. Nixon (1974), where the Supreme Court unanimously ruled that President Richard Nixon was legally obligated to turn over the Watergate tapes. In 1985, upon the death of Associate Justice Potter Stewart, Woodward disclosed that Stewart had been the primary source for The Brethren.
The Burger Court was the period in the history of the Supreme Court of the United States from 1969 to 1986, when Warren E. Burger served as Chief Justice of the United States. Burger succeeded Earl Warren as Chief Justice after the latter's retirement, and served as Chief Justice until his retirement, at which point William Rehnquist was nominated and confirmed as Burger's replacement. The Burger Court is generally considered to be the last liberal court to date. It has been described as a "transitional" court, due to its transition from having the liberal rulings of the Warren Court to the conservative rulings of the Rehnquist Court.
On July 1, 1987, President Ronald Reagan nominated Judge Robert Bork for Associate Justice of the Supreme Court of the United States, to succeed Lewis F. Powell Jr., who had earlier announced his retirement. At the time of his nomination, Bork was a judge on the United States Court of Appeals for the District of Columbia Circuit, a position to which he had been appointed by President Reagan in 1982.
William Hubbs Rehnquist was an American attorney and jurist who served on the U.S. Supreme Court for 33 years. Rehnquist was an associate justice from 1972 to 1986 and the 16th chief justice from 1986 until his death in 2005. Considered a staunch conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment's reservation of powers to the states. Under this view of federalism, the Court, for the first time since the 1930s, struck down an act of Congress as exceeding its power under the Commerce Clause.
During President Richard Nixon's presidency, federal judicial appointments played a central role. Nixon appointed four individuals to the Supreme Court of the United States in just over five and a half years.
During President Lyndon B. Johnson's presidency, federal judicial appointments played a central role. Johnson appointed Abe Fortas and Thurgood Marshall to the Supreme Court of the United States in just over five years as president.
President Bill Clinton made two appointments to the Supreme Court of the United States, both during his first term.
Speculation abounded over potential nominations to the Supreme Court of the United States by Ronald Reagan even before his presidency officially began, due to the advanced ages of several justices, and Reagan's own highlighting of Supreme Court nominations as a campaign issue. Reagan had promised "to appoint only those opposed to abortion and the 'judicial activism' of the Warren and Burger Courts". Conversely, some opposed to Reagan argued that he could "appoint as many as five Justices" and would "use the opportunity to stack the Court against women, minorities and social justice".
The nominations made by Lyndon B. Johnson to the Supreme Court of the United States are unusual in that Johnson appeared to have had specific individuals in mind for his appointments and actively sought to engineer vacancies on the Court to place those individuals on the court.
↑ Ellis, Kate. "Interview with John Dean". The President Calling. American RadioWorks. Retrieved 2007-01-08. Poff ... didn't really want to put himself or his family through the controversy of being nominated and then beat up through the senate confirmation process.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
