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tv   Lectures in History Johnson Nixon Supreme Court Nominations  CSPAN  March 19, 2019 10:02pm-11:20pm EDT

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there is no monolithic media broadcasting has given away to narrowcasting and youtube stars . is c-span's big idea is more relevant today than ever. no government money supports c- span, it's nonpartisan public is watching it is funded as a public service by your cable or satellite provider. on television and online, c- span is your unfiltered view the government. so you can make up your own mind. next on american history tv. kc johnson teaches a class on president lyndon johnson and richard houston supreme court nomination. from her lecture in history series this is an hour and 50 minutes. >> aright so today were looking at the development of controversial supreme court nominations in the late 60s and early 70s and the backdrop to this last time we looked at the warren court. is increasing surge from
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controversial decision from the court, to basic rentable. one is the idea of counter, authoritarian, the idea that their particular job of the supreme court to stand up on behalf of people who may not have majority support. whether it is atheist or civil rights or criminal defendants throughout the 1960s. and second was the emergence of of this philosophy that some historians have called rights related liberalism. the idea that liberalism in the united states was primarily devoted to the protection of individual rights. and as a result, the supreme court became an important recognition for the this. >> one problem, which is that if you're going to govern, your governing is going to be to apportion supreme court and appoint justices and this becomes increasingly fraught prospect for liberals. so the backdrop. lbj.
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after 1964 was a civil rights act and '65 with the voting rights act and get a sense that the supreme court is going to be significant but unlike with kennedy, there are no openings on the court. so johnson essentially creates one. first one comes in 1965. it's a custom which dates back to the wilson administration. with lewis and ice. there was one jewish member on the court. the jewish member on the court in the early 60s with arthur goldberg, member appointed by jfk. the liberal block cemented on the court. johnson however wanted to point this man, his longtime lawyer and fairly close personal friend and advisor abe fortas. he was jewish. he goes to goldberg and says look, arthur, it's very important we have a problem in vietnam. it can only simply can only be handled at united nations. you're the best negotiator i know. what you need to do for the good of the country is you need to resign from the supreme court
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. accept a job at un ambassador and goldberg believes that he goes to the un a basically adored by johnson for two years. johnson is able to put fortas in a 1965. fortas is continues to advise johnson behind the scenes on important policy issues. he helped to draft his speeches and imagine in the current environment if john roberts regularly consulted on trump's speeches. this would be seen as highly improper and this would cause problems for johnson down the road. secondly in 1967, thurgood marshall is seen previously at the end naacp chief counsel who johnson had appointed to the circuit court right here in your. johnson sees an opportunity to name the first african-american to the court. but there's no vacancy. there is however a vacancy to the position of attorney general. johnson looks far and wide in the country and decide that ramsey clark liberal lawyer
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would make the world's top attorney general. one small problem. clark's father is on the supreme court. johnson goes to ramsey clark and says i would love to point you but i cannot do it because i can't do it with your father in the supreme court. the your father is willing to resign as a supreme court justice, i could then i could appoint you as attorney general. the father resides in johnson gets another vacancy. marshall moves on to the court. johnson assumes he will run for reelection in 1960. he will be reelected in 1968 and there are three very very elderly members of the court including two justices black and harland who are not in good health. in the late 1960s, so he's looking under the assumption that he will be up to a point either four or five justices by the time he leaves office. but instead we all know the history, johnson support begins to weaken and in march 1968, he announces that he will not
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going to run for reelection. by the summer of 1968, it seems pretty clear that the democrats will have a tough one time winning the election. which means that johnson successor is likely going to nominate the replacement for chief justice earl warren. and so warren in june 1968 decides to preempt this possibility. he makes an announcement that he's going to retire as chief justice of the supreme court upon the confirmation of his replacement. so basically what warren is telling the conservative synergist, you have a choice, you can confirm whoever lbj nominates to take my place or i will be there as the chief justice continuing to issue these liberal opinions and the expectation is that most members simmers of the sun or more or less go along with that. beat if they don't particularly like the idea of johnson any replacement.and in doing so. there is one other thing that is in the back of the minds of
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both warren and johnson. johnson is arguably the most gifted president in american history if not the most gifted, the second or third most gifted in terms of managing conflict, deep understanding of how congress operated. get a sense of what he could get through congress. is johnson nominates a replacement for warren, he's thinking of this chart, these are all supreme court nominations in the last two political generations. dating back to 1937. all the name nation from fdr, truman, from eisenhower, kennedy and from johnson. and 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 in the senate, the senate doesn't even bother to hold a roll call vote they simply automatically confirms the justice. almost all of the others are
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overwhelmingly confirmed by the senate. so by the late 1960s, did this and come this expectation that yes in the constitution it says the president nominates the supreme court justice and had the senate has to come from that selection. it in the real world who the president nominates is automatically going to get confirmed and this is what johnson assumes will happen in 1968. as well. so in june 1968, we go inside the johnson white house and a second part of the assumption is that johnson has out fought his of opponents again. he will get a liberal chief justice on the supreme court by late 1968 who will serve her of the 1970s and ensure the supreme court will remain liberal. down another charge 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 johnson's approval as measured by gallup.
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wrote his presidency. that goes up and down a little bit that there's a pattern here it goes from quite high and 63 and 64. it drops and by early 19 '68, his approval rating is hovering around 35% . for comparison sake, that a seven or eight points below what trump's approval rating currently is. so this is a very low approval rating for lbj. along with the fact that he's not terribly popular. he's 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 18 1893. a long time ago, this charming looking man here howard jackson who was a grover cleveland nominee. served for a couple of years got ill and died in the mid- 1890s. so from the standpoint, there's a good president for johnson.
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a sickly basically any president who is nominated get confirmed. by this president however, look johnson may have had some problems here he's not a popular president. the senate didn't have much president in terms of confirming late nominees. by the president. now 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's making a selection. this is the roll call vote for thurgood marshall's confirmation in 1967. you'll notice this is not a unanimous vote like many of the others in the 30s, 40s and 50s nominees but then there are 11 senators who voted against thurgood marshall's confirmation. 11 top on the chart. if you squint closely you can
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pretty much identify where these people are coming from. they're all from the south. 10 of them are democrats. this is a period where in segregation the democrats remain in place in the south. the 11th is a former democrat strom thurmond who at this point was a republican senator from south carolina. so 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 southern opposition party if i can come up with a nominee that will appeal to the southerners, then the nominee will go sail through without any problem. johnson whoever makes this a little too complicated. he concludes that he does not want to name a new replacement. for warren instead what he wants to do is elevate his friend, justice fortress. from the associate justice to the chief justice. so he wants to come up with the replacement for abe fortas is associate justice. it will take to nominations rather than one.
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he go through a number of lists but the man he's most interested in looking at is homer thornberry. here's a photograph of thornberry, this is from the late 50s. he knows him very well. thornberry had succeeded him and the house of representatives when johnson was elected to the senate. johnson had been appointed to the fifth circuit of based in new orleans. so he's appellate courts george court judge nominated by johnson he's a former congressman. he's very friendly with southern politicians. particularly friendly with richard russell the most powerful of the southern democrats. so johnson census thornberry is somebody will appease the southerners who didn't like thurgood marshall. and will ensure that fortress will be confirmed. now before johnson announces thornberry he gets on the phone with several key figures.
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just to get the feel them out on what they were thinking. generally when johnson would call you, this is not a two-way conversation, johnson was not soliciting information, he was basically encouraging you to think as he did. his first call go to justice fortress. he wants to ostensibly the purpose of the call is to get feedback from fortress about who would be a good replacement for fortis as associate justice but as it will be clear, johnson is already made up his mind and fortis is not basically here just to say yes. >> thornberry has some disadvantages i think the fact that he's a congressman and city councilman and state legislature, i think he would be very good on the court. and knowing every department of this government. but from the standpoint of the local press, it would not give me a fair trial, hello would be nominated on my record. for several liberties and rights but the times and the
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folks are against me. because they just are anti- semitic, they are anti-cell. the because i live in texas i don't have style. and the silly dam think they've got against me, i've been been adopted, i know you've got to go and i just want to get some more how you gonna rate these people 1, 2, 3, 4, 5? it took from the standpoint of my problem and what i may want to do here on the other things, i've got geography, i've got the senate, of god the philosophers. got to have sure votes. i want to try to get a little age and look at this from your standpoint. look at it from my standpoint, knowing me as you know me and what i want. i want somebody that always be proud of his vote, that's the
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first thing. want to be proud of the side he is on. you go back with somebody and i want to be dam sure he votes right. that's the first thing. >> these are private conversation fortress is not aware he's being recorded. johnson is as though these being recorded he's perfectly candid about what he wants. if you get a brilliant justice that would be great.the chief goal here is to get someone who will vote the way johnson wants. one suspects that every conversation from the president after johnson had a similar line i'm sure as did it with trump's nominations as well. but there's an obvious one johnson's goal is to ensure a liberal majority on the court. he thinks he can do that with with abe fortas and thornberry. and then johnson reaches out to key senators. johnson with the majority leader in the 1950s at the section and he understood how the operated in the 50s
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exceptionally will. his problem will be the senate in the 1960s operated quite differently. for johnson in the 50s believed he could filter through key senate leaders. he reaches out to richard russell, a democratic senator from georgia. a segregationist, but most prestigious of the summer democrats, russell likes thornberry alike. doesn't particularly like abe fortas but he said he will be willing to go along with the nomination because that will get thornberry on the court. johnson reaches out to the minority leader. head of the senate republicans, everett dirksen, a republican senator from illinois. he and johnson had worked closely on the civil rights act. on the voting rights act and he was a supporter of african- american civil rights. he knows fortis and likes them. he also knows and likes. dirksen commits to support him. johnson also reaches out to mike mansville the majority leader of the senate. representing some liberal moderate democrats.
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mansfield isn't thrilled about fortis is nomination but will go along. >> with johnson's plant so it looks from johnson's mind in late june of 1968, as if this is a done deal. abe fortas has been nominated,, thornberry is the associate. the three most powerful members of the senate johnson believes are already on board as willing to support both confirmation and this is going to be a done deal. johnson's problem is that he essentially lost a decent amount of power. by the fact that he's not running for reelection but he hasn't conceptualized that. he will learned very quickly. in the summer of 1960. two things happened almost demurely. first, is that 19 republican senators signed on to a public statement prepared by this man, robert griffin who was a republican senator from michigan. which comes to be known as the round robin.
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which articulates the view that will be re-appear in american life in 2016. this is potentially the same argument that mitch mcconnell makes against the garland domination. which is that look, we have a vacancy for the supreme court, there's a presidential election going on, we are going to withhold our support from any nominee on the grounds that the new president should be able to make this choice. know because johnson at this point has been elected and 64. but griffin is doing here is that griffin has seen the pulse. by june 1960, nixon has assumed a fairly healthy lead over hubert humphrey. it will be the democratic nominee. when griffin is saying is that he's confident nixon is going to win. basically what he said i want a republican to make the nomination rather than a democrat. if the polls were flipped,
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let's say we are in an alternative world and hubert humphrey were somehow i had but 15 points in the polls. i suspect griffin would have said let's go along with this. but he doesn't, he gets a significant chunk of senate republicans, 19 senators who were signing onto this statement. remember, we have 11 senators, 10 of whom are democrats, who opposed thurgood marshall. at least on paper we have almost 30 senators who seem to be skeptical about a possible johnson nomination. but the johnson white house staff does not detect this. the just at the time of the griffin round robin is coming up, johnson's legislative liaison team in the office in the white house that basically counts the votes in congress, prepares these documents for lbj. and what they say is that this
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is a shoe in. we have roughly 70% of the support in the senate. we have a handful of opponents that you don't need to worry. abe fortas is going to get confirmed. on paper, from the president standpoint, this nomination seems to have gone very well. but in reality there are big problems that are emergency that they don't see seem to be detecting. johnson privately in late june and early july 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 aren't going to vote against abe fortas and thornberry, they will back down once the nominees take it to the for. they just trying to provide a show, this is not what happened and johnson doesn't quite understand. then there is a second problem. dating back to louis brandeis, supreme court nominees have gone before the did senate judiciary committee.
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it dating from the 30th it is been a fairly normal practice where senate on supreme court nominees would testify before the >> jim: should issue committee that asked if there opinions on constitutional issues and offer feedback. the tenant tend to be quite routine. hearings nothing like what we saw in the last few weeks. nothing like we have seen before. but even setting it up like the garland here, nothing like that for there would be a television spectacle. nonetheless 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 exist in the senate. think back a few weeks ago to the kavanaugh hearings. kavanaugh hearings basically we have 19 member committee, 10 very fairly conservative
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republicans, nine fairly liberal democrat and it's essentially and ideologically split committee. but the democrats are liberal. who were on the committee. that is not the case in 1968. the chairman of the committee is this man, jim eastland. a democratic senator from mississippi. arden segregationist had voted against thurgood marshall's confirmation had voted against the civil rights act. had 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 that had made clear he opposed marshall. had voted against the voting rights act and had voted against the civil rights act. and sam ervin, who we will encounter later in this class, democratic senator from north carolina, had voted against
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marshall confirmation, had voted against the voting rights act and had voted against the civil rights act.these are the three most senior democrats on the judiciary committee. these are senators who today would be among the most conservative members of the senate. there pitcher critics of the warren court and the warren court decision. essentially what they decide amongst themselves, eastland is the chair of the committee, the chair of the committee controls how the process operates, that an example the last few weeks, the key person in the kavanaugh hearings was chuck grassley. the republican chairman who presided over the hearing. what the these mcclellan and they decide is that they will be used this opportunity to put the warren court entre. to basically bring abe fortas before their committee and grill him on the variety of the warren court decisions. so instead of a routine hearing,
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what he gets what fortis gets is very detailed questions about specific warren court decisions that he he doesn't have consistent answers. sometimes he said he will defend the decisions and sometimes he said he cannot talk about them because he cannot talk about how the justice can talk about how the court may decisions. and the committee also starts asking questions about fortresses advice to johnson. it is highly improper. the supreme court justice should not be providing political advice to a sitting president. everyone knew fortis was doing a. fortis said he cannot give advice because that would be an improper intrusion into the courts freedom advection. and the can three conservative democrats and that doesn't make sense if you're willing to talk to the president is not willing to talk to the senate, that seems to be not respecting the authority of the senate. and fortis, this is always a problem with fortis and lbj,
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for just thought like a lawyer, he intended to give a very specific legalistic answers that tended to sound very defensive. he was not a particularly good witness. the star of the hearing is not any of the democrats. the star the hearing is this man, strom thurmond. republican senator from south carolina. former democrat, independent presidential candidate in 19 forget at flip to the republicans in 1964. thurmond was a demagogue. understood how to prosper in politics. he was a sharp proponent of civil rights. in thurmond's mind, the question coming that were coming from fortis and mcclellan and eastland were to legalistic. they weren't going to they were going to attract the attention of the public. make, post for.
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he goes over fortis's judicial record. which is not particularly robust, it's only a bit on the court for three years. but what thurmond noticed is that fortis had frequently been in a 5-4 majorities on paper the decisive vote on a series of decisions that the warren court had made over pornography issues. where the court had struck down state laws restricting the dissemination or sale of dissemination of pornography on grounds it violated the first amendment. and thurmond sense that this might be a vulnerability to portray fortis as a pro pornography justice, someone who is outside of the ideological. he welcomes as a witness and a member of the minority, they get to invite a handful of witnesses. this man james clancy, he is head of cities for decent literature. and anti-pornography literature organization. clancy describes in quite
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robust detail, the plot lines of various films and books that fortis is decisions upheld as non-obscene. and this line of attack that abe fortas is essentially a pro pornography justice start to resonate, a lot of conservative members of the senate begin to distance themselves. both russell and dirksen, the senator that johnson thought he had in the bag, retreat a bit. russell comes out against fortis, dirksen said he might support them but he might not. johnson is trying to figure out what's going on. the problem here is that he doesn't have any clothes i was on the judiciary committee. he fell he turns to this man, george smathers, who is a democratic senator from florida. a low ranking member of the judiciary committee. but a close personal friend of
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both jfk and lbj. he tries to get a sense from george smathers, why is this committee process taking so long? and what george smathers tells him is that the senators are very interested in the pornographic films and indeed he suggests they frequently want to extra time to view these films in person to determine their level of pornography. and as you see he's telling johnson that eastland is using procedures to lay things. of course if it is delayed after the election it looks as if fortis will have little have little chance to for nomination. to contextual items that this clip. the first johnson references is the film which was just out called the graduate. justin hoffman is the star. it is seen as a very racy film and the context of 1968, this
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guy is seduced by the mother of one of his friends. and so smathers is going to be talking about his own views of pornography here. mathers had a reputation for a very active social life. that is not the portrayal george smathers gives of himself in this conversation. >> now will fall the lines but what worries me very much is that things go back about it at the time. and my other reaction is at the moment, i chose not to look at
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it because i don't have anything that should be pornographic, that's a violation of free speech and always has been. and choice, i choose not to look at a. others may choose to look at a. i don't want to look at it and i support those who can. i don't look at it, i haven't seen it and i'm not if this the kind of thing that should be shown around or should the. johnson raven about how this kind of thing is looking like. he wanted a long time to look into this and he will look into it deeply. >> would you vote on it wednesday? >> we are due to vote on it next wednesday >> >> what about the filibuster. >> can you just do that? >> we get the cooperation of
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eastland, how he will stop at. >> he's referring to at the bottom is the rule of the judiciary committee that allows any member of the committee to delay the vote by one week. if you're dealing with a president that is running out of time and office this repeated the late will of one week will cause significant problems. >> the pornography argument resonates with the public. the fortis confirmation is the first supreme court confirmation in american history that all of us would be at least somewhat familiar with. the public is engaged with the confirmation. there reaching out to members of the senate. the letters that senators are getting and this is the pre- internet age, you contact your senator's office by typing out a letter. the senator the letters the senators are getting are overwhelmingly opposed. these are a couple of photos of letter sent to a quentin byrd who was a democratic senator from north dakota.
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he was one of fortis's strongest defenders in the senate. but these are lines from the average north dakota's who work concerned about what they're hearing on fortis and they're saying that he's making making too many compromises with the issue of pornography. and that you can't compromise the with the double and this is the problematic. and so let's say you are an undecided senator. you're getting all of letters opposing him and johnson is not going to be around next year to protect them there will be a new president, becoming for reelection and i-270. you'd have really strong opinions about that you might be inclined to vote no and avoid this problem. so fortis support start the road quite significantly. johnson is furious, he can figure out what's going on and he gets on the phone with ramsey clark. and start complaining that the problem here is that griffin and thurmond and the senate republicans have been spreading on too many unfounded rumors
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about fortis so it's time for the democrats to start spreading unfounded rumors are brought about griffin to even the score. and again we see clark doesn't really get a word in edge wise in this conversation. >> i was just there for 30 minutes and we had the best conversation. all time he's having a big meeting this morning. and then the allegations and then we tried and we look at every day. so the other side doesn't get in. so get somebody that can write some mean dam speeches and allege some things that they got to deny and let them do some research. so that's what you got to do, you've got to employ the resources and their talent. doing research. instead of attacking you. we don't ever keep them busy. i would find some reason that griffin is in the sink, i don't think anybody has a point about griffin set a week before it that he was against anybody's, he wasn't worried about pornography. anybody look at his face until he's not that doesn't bother
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him. pornography. he was just worried by god he didn't make a partnership political deal out of the chief justice. republican chief justice had delayed it and took took laid politics with it until he could get in and that's what he said. he said days before we even decided to name fortis, somebody at the point that a. >> this is desperation. when your tactics are getting this report nominate to confirm to say nasty and corroborative things about senate republicans you're probably going to lose. griffin delivers the final nail in the coffin for fortis in the early fall of 1968. griffin was quite a talented senator and he made clear he had heard rumors of him fortis being unethical. he says that people had information he says call my office. and what he finds out is that fortis had been giving a
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significant cash bonus, $15,000 which in 1968 is not an insignificant sum of money. to teach a very short seminar at american university law school. american university is and washington, d.c. less than a couple of weeks. and this money had come had not come from american university. instead had come from a handful of private donors who are friends of abe fortas. this sounds uncomfortably close to being a bright. these people are paying fortis to do a token amount of work, the dean of american university law school he said yes $15,000 sounds like a lot of money but fortis was doing more than teaching a class. he had to prepare a syllabus, as we know preparing a syllabus is very expensive. and this is not a credible allegation. the committee invites but fortis to come back before it and explain what he did he did
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for this $15,000. abe fortas says no, and at that point the senate summered southern democrats and the reps senate republicans jointly announced they were filibuster the nomination. they will not allow it to come to about. the filibuster can only be breached if two thirds of the members of the senate vote to end the debate. it is clear that is not going to happen. so october 1 to the senate votes and fortis by this point is reduced to hoping for the kind of a symbolic victory. he's hoping a majority of the senate will vote to impose cloture. and you can say basically the majority of the senate wanted me on the supreme court and conservatives blocked the. and instead the final vote is 45-43. can even get to 50. to impose cloture and the '67 was needed to impose cloture. at that point very closely the nomination is dead.
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so this is october 1960. johnson is in office for a couple of months. and he doesn't quite give up although this was his amounted to his last chance. fortis withdraws from the nomination the next day after spending 24 hours helping that he might find a way to revive him so. so warren is still in the court but he's made clear he doesn't really want to stay on the court. now is all of this is occurring, we have a presidential election which is going a. and a presidential election in which the supreme court has emerged as a major issue for both of the challengers. george wallace, encountered before a civil rights opponent, governor of alabama, 1968 runs as a candidate of the american independent party. strong opponent of civil rights. he argues the word court has exalted the power of african- americans, and you use the word
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american, african americans, he lost the power of criminals and power of jamming us and it is at the expense of real americans in positions he will take. and he get strong support in the south, but also fairly strong support in some white ethnic areas in the north. very late in the '68 campaign, wallace's polling and double digits in brooklyn, in staten island which is new york city. in queens. and in upstate new york. so it's not just the southern candidate. and indeed he poses a problem the republican nominee richard dixon. because of nixon is not, if wallace has too many conservative votes away from nixon humphrey might win with a minority of the boat. so the nixon and 1968 embarks on this quite clever strategy. of calling at the time the
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southern strategy but actually is much broader than southern strategy. of challenging the president of the warren court, appealing to what we would now call a black racial black/boat. doing so encode. you don't hear anything from 1968 from nixon and the civil rights act was passed. or that i'm opposed to equal rights for black people. he sort of leave impression in the mind. the issue that nixon seizes on is crime. you this the idea he makes is that the one court has made too many decisions in favor of the rights of criminals and this is created dangerous situations for society as a whole. so here's an example of a tv ad that nixon runs in 1968 on the issue of, very cleverly constructed at because as we see, there's only one person in this at. we are left to imagine who the person, pursuing this woman
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actually is. >> >> crimes of violence in the united states have almost doubled in recent years. today a violent crime is committed every 60 seconds. a robbery every 2 1/2 minutes. a mugging every six minutes. a murder every 43 minutes. and it will get worse unless we take the offensive, freedom from fear is a basic right of every american. we must restore it. >> the actual text of the video
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that ad does not appeal to racial sentiments at all, we see a woman walking down the street. if you are of your in 1968 and you happen to imagine that an african-american man is following that woman, that might be what is in your mind, is not what nixon says. the nixon strategy and '68 is plausible deniability on the issue of race. he's not simulating a backlash, he seems to be talking a lot about crime and yes there seems to be an emphasis on the idea of an african-american are criminals. but he doesn't really push the issue and await that wallace does. a lot of come up overt racist rhetoric from wallace. >> with those numbers accurate? >> these are perfectly accurate numbers. and in the late 60s and early 70s there was a crime wave. there are rides in most urban areas in the u.s. starting in 1964 and continuing through '68, every summer. their major riots , and one time in new york and one time in l.a. in newark, and rochester new york, and so nixon is not
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inventing the crime issue. the answer he's giving is a kind of simplistic answer. >> how do how do that compares to now? and we have historic level? >> so we will talk more about this when we get to the 80s and 90s. violent crime rate is way way down from the 60s and 70s. the severity of the crimes has increased because the power of weapons has increased, and some respect and murder is down, armed robbery is done. muggings or.. this is a period which is a much more dangerous period if you want to use that. then is the case, nixon is not inventing the issue but he's presenting a particular frame on the issue. >> the other policy backdrop here is that after the
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ascension of martin luther king, and the ascension of robert kennedy, congress passes a crime control act. the primary thrust of this act is a gun control measure. fairly weak gun control measure. but nonetheless a gun control measure. so from nixon standpoint, the underlying argument is johnson and liberals are in washington are interested not in protecting this woman walking down the street, there interested in taking away or protecting or taking away or limiting the rights of guns for americans. so nixon overwhelmingly wins. johnson carried in 1968 has carried 44 of 50 states. by 1968 nixon basically sweeps the country, wallace carries a handful of states in the south and the only southern states that humphrey carries was texas. now with all of this is going on, johnson is still trying to come up with a scheme to put a
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replacement on the supreme court. and what he thinks is a possibility is to use the recess appointment power. very of score constitutional clause that was commonly used in the 19th-century, it started to fall out of fashion in the 20th century. it said that 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. and so what johnson is thinking in late october, early november 1968 before the vote, maybe what i will do is congress is in recess, i will name a recess appointment of chief justice. it will not be fortis, we will not call it a complicated scheme of a 2 for 1 replacement., liberal. the liberal that he seizes on his arthur goldberg. the former justice he had
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driven out of the supreme court in '65 and the hope was that if he named goldberg as a recess appointment and goldberg was in place when nixon became president, that nixon might somehow be pressured to nominate goldberg for a full-term. that's the chance of that happening were not high. nixon figures out what he's doing and so almost immediately after nixon wins the election, he nixon issues a public statement inviting him earl warren to remain in place for the remainder of the term. basically saying he doesn't want to recess appointment. johnson concedes that the game is up he calls warren, and complain about the situation, this like his conversation with abe fortas, it was quite an improper call. because basically we have johnson and warren trying to come up with this game to replace the. at this conversation is from november 1968 and this is the last time that lbj thinks of the possibility of a supreme court nominee. >> well the press will be
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asking us what right does nixon have to save this will end january 20, that does, have we committed that we will not name anyone or leave them in a bad shape but goldberg will what we said the goldberg was this, i told people to talk to him and i don't think he can get confirmed and i think it would be tragic for his like. that be, if there were evidence that i was wrong, i would certainly want to preserve it the court if i could. and i would i have, i would certainly regard him as the good appointment. so that's my problem with him. so i don't think there's much of a chance but i'm afraid he's not going to understand what is happened here for he will be thinking about them playing and knowing the whole time that this might happen. so i hope you explain to him what did take place. >> again a typical johnson
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called. the other person does not really get a much. but one gets the message and warren calls goldberg and said look we tried for the recess appointment but it didn't work at. and i will remain in place for the remainder of the term. he finally resigns in june 2019 '69. at which point nixon nominates this man warren burger. a fairly conservative judge from the eighth circuit. which was based in the midwest, based in minnesota. to become chief justice of the supreme court. and so we replaced a quite liberal, very liberal chief justice with a fairly conservative chief justice. that creates a more conservative court. but this is only nixon's first appointment. nixon will get to make for supreme court appointments in his first term. significant turn over. the second is an unexpected one. justice abe fortas, one of the
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great ironies of this is that johnson by trying to name, promote fortis from associate justice to chief justice paves the way for fortis to collapse entirely and be removed. so we are late '68 , the public has been exposed to this idea that abe fortas is a little ethically challenged. we had the $15,000 deal at american university, he seemed to be consulting with lbj inappropriate, it was clear this guy was not a paragon of ethics. and the press started looking into this background. and there have been rumors around fortis as a very very high priced lawyer. before he went on to the supreme court. and so being a public servant cost fortis a decent amount in terms of finances. it is friends with try to prop him up and then in 1969, it comes out that fortis had been accepting a retainer. every year, $20,000 payment from a financier named lewis
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wilson unfortunately was under criminal investigation. generally for those of your planning careers at the supreme court justices, it is not a good idea to it not a good idea to accept annual payment, it is highly unethical conduct but the irony this would not have come out but for the fact the press was prompted to look at ford as a result of the fight, nixon started sending out rumors if he did not resign republicans and conservative democrats would impeach him. it would have been a difficult fight. the integrity of the court is such i need to resign.
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he was appointed in 1965 who everyone assumed would stay on the court through 1970 and is out after four years. in 1968 nixon used the idea of approaching the racial backlash as a way of getting southern votes. to go back to the math, nixon does not carry some southern states. he loses texas to humphrey and loses arkansas, mississippi, alabama and gorgeous and louisiana to wallace. nixon says if we show them we affiliate with the republican party they will get a benefit but they can get a southern conservative on to the court and nixon concludes that a way
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of bolstering republican support and their teams to be a good judge from north carolina on the fourth circuit named hainesworth. conservative judge, very pro business and popular along north carolina republican types, at a time when there were not many republican judges in the south. the south had basically been a one party democratic area. the problem is that hainesworth has a pretty good judicial record but not a great judicial record. there is rumors of ethical -- he had some issues civil rights groups perceived as not
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particularly supportive. a group of young liberals in the senate to what happened in 1968 will fight against hainesworth. ted kennedy, very young at this point and elected to the senate in 1962 to take the seat his brother had once occupied. became the prominent figures on civil rights issues through the 1960s. the u.s. senator from indiana, he served three terms and was narrowly elected in '62 and narrow low reelected in '68 and
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gets crushed by george h.w. bush's vice-president. by was a creative thinker and did not temper his opinions, he basically just took the liberal position and was a democratic activist on constitutional issues and he is critical of hainesworth. he is worried if hainesworth gets on the court the result is a string of anticivil rights decisions. the thing about the hainesworth vote is not that kennedy and by oppose him, that's some way to be expected. we have all of these red dots on the chart, these are senate republicans who passed a vote against hainesworth confirmation. we have democrats and liberal
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republicans, clifford case, last republican to be elected to the u.s. senate from new jersey. the last election was 1972, very liberal republican, more liberal than lots of democrats. jacob from new york, stayed in new york until 1980. margaret smith from maine against joseph mccarthy. charles, republican senator from maryland. basically every liberal or moderate republican in the senate and a couple of conservatives, the guy who lead the opposition, charles goddell from new york state, son is commissioner of the nfl. the father was the more
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prestigious figure than the son. goddell had been appointed to the seat, hoping for full term to get elected in 1970 so hainesworth goes down to defeat 55 to 45 and nixon is astonished. he assumed this was going to be -- the confirmation was a one off. what seems to have happen is the confirmation changed the rules of the game and the senate became more willing to look at supreme court nominees with a degree of scepticism. that pattern continues at several points in the future. nixon has two options, the first is to take a look at the role call and conclude this is a democratically controlled senate and there are some
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liberal republicans and in that senate there simply is not a majority for a very conservative southern judge who might be perceived as hostile to civil rights and nixon needs to look elsewhere. that would have been reasonable responsible for this vote. nixon often did not take the reasonable response to vote and this was an occasion in which he did not. if he is more conservative than hainesworth that's fine. i don't particularly care but it has to be another southerner if at all possible. the justice department looks at appeals court judges from the south, the level below the supreme court. they don't find anyone appropriate who would be a republican who was a southerner, seem to be on a sufficient age to be on supreme court but they say a different court judge, it the lowest
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level of the federal judiciary. but florida this man named g carlswell and they tell nixon he is not perfect because he is not an appeals court judge, the traditional path for supreme court nominations you wanted to move up in the appeals court rather than jumping to district court. 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 carlswell nomination. first it's that hainesworth had a couple of votes that were hostile to civil rights but there was no indication hainesworth was racist or personally hostile to african americans in any respect and he
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would stay on the circuit court after his defeat for several years and was well liked by both parties. you might have liked or disliked his votes. carlswell before entering the judiciary had run for public office. not in florida but in georgia. it doesn't appear as if the nixon people picked this up and in 1948 running for state legislature he delivered a speech saying he was in favor of segregation forever, to establish the idea of racial equality for african americans. if hainesworth is unacceptable, carlswell will be worth but nixon pushes senate republicans. he said they blocked up with hainesworth you have to stay with me on carlswell. it looks as if carlswell might
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make it through. but then a second problem emerges. the district court's opinions get appealed to the appellate court. for the most part the judges get it right. you don't see tons of decisions overturned by the appeals court. sometimes it might be 15 or 20%. carlswell had seen his opinions overturned at a higher ratio than any other district court judge in the country as of 1969 and a lot of these were not cases where let's say carlswell was making anticivil rights decisions and the court was saying you can't do that. these were technical decisions where carlswell seemed to not understand the basics of the law that quickly emerged as a consensus among both parties
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and whether that was a good nominee to be on the court and this becomes crystallized in senate debate. the republican senator from nebraska, his argument for carlswell is that the mediocre people of the united states deserve representation on the court as well. for senate republicans who have been inclined to go along with nixon, this is an argument the mediocre are entitle to representation and that's why we should confirm carlswell and a bridge too far and carlswell goes down by defeat although by
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a narrow margin, 45 to 51 and carlswell is gone. confirming the argument critics made of his intelligence or lack there of. carlswell gives up his position, life tenure position to run from the u.s. senate from florida the following year in 1970. he is certain he will be reelected and he does not get the republican nomination and he is never heard from again in political life. nixon concludes we will not get a southern conservative in this environment. he goes to the justice department and says get me a conservative who will be an acceptable nominee and the justice department turns to
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harry blackman. shows nixon blackman is a reliable conservative. he is the author of the roe versus wade decision. by the time he leaves the court he is the most liberal member of the supreme court. it's a reminder the battles can have lasting impacts. the country gets a very liberal nominee on nixon's part. nixon gets a second justice but it does not go as well as he had hoped. there are two final nixon conservatives, both in 1971, almost back to back. justin john marshal the second, falls ill in the summer of 1971. resigned from the court and
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died a couple of months after. justice hugo black appointed by fdr in the 1930s suffered a stroke in september of 1931 and died a couple of weeks later. nixon has two vacancies all of a sudden. the justice department has found a southerner who will be accepted, lewis powell from virginia, conservative but chairman of the american bar association so acceptable to senate democrats. he is easily confirmed. nixon goes to justice and says i want a principal conservative, someone who will fight for conservative ideas on the court. the second obligation nixon says is what we like is someone who will help us with the 1972
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campaign. this is late '71. republican poling suggest a particularly strong area for democrats are northern white ethnic voters concerned about crime and the vietnam war and the democrats being to be friendly to hippies and radicle students and not concerned with hard working union voter and catholic voters, holy voters, irish american in new york city, chicago, cleveland, detroit. the problem here is that this is the point where for the most part catholic voters tended to
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be democrats. eisenhower nominated brennen and nixon gets on the phone with john mitchell who is the attorney general to see if there is an alternative, someone conservative but might satisfy ethnic political design. >> can i guide you to -- no, that's what i mean.
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it will mean more to the catholics than the protestants. this is not a reassuring conversation about an administration looking for high qualifications for the court. mitchell concludes there are no acceptable conservative contact let me know to nominate.
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of the four nominees, renquist closely fulfills his vision. he is strong and smart and comes to washington in the 1960s and will remain on the court through the bush two years and elevated to be chief justice by reagan and we will encounter him over and over the course of the semester. we have transformation of the court from a liberal court to a closely divided court and renquist is a fairly conservative chief justice and blackman who will become liberal although in the '70s is more center and drifts to the lefts in the late 1970s. liberals discover they had assumed in the '60s that they controlled the court for another generation and the court could issue a series of
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decisions to protect individual rights regardless of what the public would say but if you don't control the supreme court you can't rely on that. as we see next time liberals struggle to -- once they no longer have the court to figure out a way to advance their cause politically. any questions from this material? things that were not clear. >> jonathan predicted once he passed the bill they would lose the south for 100 years. was that an open discussion or privately? >> this was a rare johnson conversation not reported. he never said it publicly. what johnson does in the '64
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election, is to try to come up with a new southern coalition. he assumes the democrats will struggle with white, rural southerners. most of these people were critical and they would vote for nixon in 1972. george mcgovern does not get 25% of the vote in louisiana, mississippi and alabama but johnson does not think it is impossible the south will remain democratic. what he is hoping for is to crea new coalition of african americans to vote and urban better educated whites from places like atlanta or charlotte or new orleans or austin, dallas, houston and
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texas so we think they might be moderate or pro business but he thinks they will be open. that is a coalition that started to form in the last few years especially a state like virginia and north carolina but in the late '60s and '70s that collision never quite forms because white conservatives in the south are just conservative but there are tensions within the movement in the south over issues around public schools where african americans want to go to integrated schools and we have well educated urban whites who say we want our kids to go to good schools and not bussed halfway across town. johnson hoped he might create a narrow majority of whites and
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blacks to compensate the civil rights act to not come to fruition. johnson maybe would have been a stronger candidate than humphrey. the only democrat to do anything in the south after lbj or jimmy carter and bill clinton, these are both white democratic governors from the south and they are running atypical years. >> we saw a lot of clips from the phone calls and everything but we know the -- why did you give me this? the controversy around the nixon recordings. i was unaware lbj was recording
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his phone calls as well. was there any backlash to that at all that maybe not to the nixon extent but anything? >> this is unknown. kennedy, johnson and nixon are the three presidents to extensively record. these are brilliant political minds. they did not realize they created a record that could be subpoenaed. this is prewatergate, these are the president's personal property to do as they saw fit so in theory nixon will destroy the tapes. what johnson was taping for, kennedy taped for historical posterity, to service the basis for his memoirs. johnson wanted commitment from people and wanted a record in case people passed on him from his deals because you told me
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you were going to be with me and i had a recording of this but no one else know. when the watergate took place and the nixon tapes are revealed the assumption is that the only president who had recorded was nixon and then they come out with johnson and kennedy tapes. there is a small amount of taping in eisenhower and roosevelt and fdr. for our purposes these are incredible historical sources because they 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 technology, email in the late '80s and early '90s, apparently the bush administration did a lot with email because it was a new technology and they did not realize they were creating a
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personal record. text messages in the clinton administration, the idea of creating permanent records but we have no other tapes. >> would you argue nixon was -- first and a president second? he was trying to find out how can i get elected? >> nixon is a foreign policy president. his goal is to deal with foreign policy issues and so in his mind domestic matters, the goal was to get him reelected and so he would not have done deals with domestic actors on china and soviet union, he cares about that. who is on the supreme court he does not care as long as it serves his political sources. that's what you see on a whole bunch of domestic issues with nixon. >> isn't it interesting to see
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the integrity with the chief justice being able to like have a conversation about being slaved in his decision and it goes baic to hamilton, what he thought what the justice was going to be was 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. renquist should not be cooperating with nixon but he does excuse himself from watergate and you have to assume these conversations occurred with fdr and truman and eisenhower but we don't have recordings. we have moved towards a more ethical supreme court. it is highly unlikely in 2016 kagan was head of the oval
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office. she recognized that would be improper but johnson nor florida saw anything wrong with this conduct in the 1960s. say there was a challenge to a johnson bill. could any of us be confident that he would look at that and say you know i think this is unconstitutional so i will vote against lbj even though i really like him. it does raise questions of partial. this thing comes tumbling down. next time with watergate so that's where we are at. a couple of the mid-terms are up. congress is on break and we feature american history tv
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programs in prime time giving you a look at what is available every weekend from the civil war to the great migration and a look into the lives and policies of past political leaders, american history tv every weekend on cspa n three is 48 hours of programs exploring the past. travel to historic sites and museums, lectures and history ranges from the american revolution to 911. hear from presidents and first ladies and learn about their politics and legacies on the presidency. look at the people and events that shaped the civil war and reconstruction and listen to eyewitness accounts of key events in the nation's history. american history tv, each night this week in prime time while congress is in recess and on
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cspan3 every weekend. wednesday night we will focus on women's history month with programs about women soldiers and feminism in the '60s and '70s and the suffererage movement almost 100 years ago. watch american history tv in prime time. 2018 marked the end of world war one, next author and historian melvin described the constitutional issues the supreme court faced during the war. he is introduced by current justice at an event hosted by the supreme court historical society. i


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