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Commentary: Precedent For McConnell In Supreme Court Fight

Joe Ravi

The gloom and doom greeting the political response to Supreme Court Justice Antonin Scalia's death are real, but they certainly aren't unprecedented. And Senate Majority Leader Mitch McConnell is taking partisan steps that seem no worse than those taken nearly a half-century ago by a future president who was then House minority leader.

This all happened in the summer of 1968, when Chief Justice Earl Warren, a Republican appointee and architect of many liberal decisions including Brown v. Board of Education, announced his retirement. He did so with the understanding that President Lyndon Johnson, a liberal Democrat, would nominate his successor.

Johnson nominated his old friend (and political crony), Justice Abe Fortas, who had represented LBJ when his narrow -- some say stolen -- election to the U.S. Senate was challenged in 1948. Johnson had nominated Fortas to be an associate justice in 1965, succeeding Arthur Goldberg, who resigned to become U.N. Ambassador.

Fortas had other notable clients, including Clarence Earl Gideon, the plaintiff in Gideon v. Wainwright, whose case established the constitutional right of every citizen to be represented by legal counsel. In short, he was a hero to some and a villain to others, especially those who hated LBJ and saw 1968 as a presidential election to undermine the Great Society and civil rights achievements of the mid-1960s.

Chief among these opponents was Michigan Rep. Gerald Ford, the House minority leader, who in those days was considered a right-winger. All that would change in the next decade, as the party moved far to the right and Ford became the nemesis of Ronald Reagan.

Ford attacked Fortas from the start. The Michigan Republican also had been seeking to impeach Justice William O. Douglas, another liberal who was widely despised by conservatives not only for his views but also his personal life; he had ditched his wife for a much younger woman.

All of this was thrown into the presidential race of 1968, only days after the assassination of Robert F. Kennedy, Democratic frontrunner, and weeks after the murder of Dr. Martin Luther King Jr.

LBJ had pulled out of the race in late March, after faring poorly against Eugene McCarthy in the New Hampshire primary. The war in Vietnam was raging, college protests were widespread, and voter fears and anger about minority violence in American cities was spiking as Republicans, especially Richard Nixon, stoked the furnace. This was the decisive summer when the GOP's "Southern Strategy" began to take shape.

Fortas' confirmation became a flashpoint. Evidence of improper activities from the bench -- including advising LBJ on political matters and taking a retainer from a Wall Street financier, Louis Wolfson -- mounted. The newspapers of the time began investigating Fortas. Nixon took it up as a political issue. There was a good dollop of unspoken anti-Semitism involved, too: Fortas and Wolfson both were Jewish.

The nomination was greeted with a filibuster, led in the Senate by South Carolina Sen. Strom Thurmond, a recent GOP convert who left the Democratic Party over civil rights. In the end, the Fortas vote hit a dead end. It was dropped until after the election, and in 1969, the new president, Richard Nixon, nominated Warren Burger, who was confirmed as chief justice.

Burger initially received a mixed reception, but his career proved to be moderate and, from time to time, distinguished. He led the court through the Pentagon Papers crisis and the Watergate era. In the interest of national unity, he demanded a unanimous vote when the court required Nixon to turn over the White House tapes, which triggered the president’s resignation a few days later.

Even with Burger in place, Ford continued his attacks on the liberal justices Fortas (who continued to have a seat on the court) and Douglas. In time, the evidence of Fortas’ ethical shortcomings weighed too heavily on his ability to serve as justice, and he resigned from the court in 1969 under threat of impeachment. Justice Douglas held on for nearly another decade, until his death in 1980.

The Fortas controversy proved that no matter how contentious a political battle over a Supreme Court vacancy can be, America's democracy adjusts, and in time reason seems to prevail. Fortas was probably a bad choice for chief justice: He was deeply troubled ethically, a charge that Burger never faced.

But pertinent to today's Republican challenge to an Obama nomination, McConnell's not out of line with history in his early and strong opposition.
Keith Runyon is a longtime Louisville journalist and former editorial page editor of The Courier-Journal. He is a regular contributor to WFPL News. Read his past columns.