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February 2016

Borkery, Burgery & Fortasy Football, Part IV: Warren-Fortas-Burger-Haynesworth-Blackmun

"First, the rectification of words", as Confucius said. 

An article in Politico tells the  entertaining story of Justice Abe Fortas, whose elevation to Chief Justice was massively resisted via a filibustering bipartisan conservative coalition, including several outspoken racists and future Senate Democratic Leader Robert Byrd. Chief Justice Earl Warren had resigned so that his successor could be appointed by Johnson instead of Nixon. The Senate Judiciary committee, led and dominated by racist Democrats, grilled Fortas mercilessly about his and the Warren Court's jurisprudence, and Fortas was barely able to respond at all because as a sitting justice he was not supposed to comment on the Court's  cases. His opponents also uncovered troubling ethics issues. The president finally withdrew the nomination at the Justice's request. LBJ did not pick another nominee, and when Nixon was inaugurated he nominated Warren Burger as Chief Justice.

The ethical problems uncovered in the controversy later led Fortas to resign his seat on the Court altogether,  giving Nixon yet another vacancy to fill. He nominated a racist, whose confirmation was blocked by a bipartisan liberal coalition. Ticked, Nixon ordered his staff to find someone from even further South and further right. They found Clement Haynesworth, whose claim to fame is that the best anyone could say of him was that there are a lot of mediocre people and they deserve to be represented too. That did not work either, so finally Nixon had to compromise with liberals on Harry Blackmun, who went on to write the opinion in Roe v. Wade.

The Politico article gives this as a warning that conservatives who Bork or Burger an Obama nominee (try saying that fast five times) may only hurt their cause in the long run. But at the time they opposed Fortas, in 1968, I don't think abortion was an issue between the left and right of that time. Wasn't it mostly an issue for Catholics, who were generally leftist on economic issues?  I know Jesse Jackson and Ted Kennedy were very antiabortion back then. Indeed, Roe perhaps gave Catholics and southern conservatives an issue they could come together on, combating the Supreme Court's  exercise of lawmaking, constitution-rewriting power  under the banner of human rights rather than racism. And if they had not opposed Fortas, he would have led the court until 1982, and both of the seats would have remained LBJ-appointed instead of Nixon-appointed.

Republicans, Beware the Abe Fortas Precedent

In 1968, a hostile Congress blocked LBJ’s nominee to the Supreme Court. Conservatives lived to regret it.

By Josh Zeitz in Politico, February 15, 2016

1852-53 Justice Replacement Took 8 Months, 4 Failed Appointments, New President From Other Party

Because an opposition-controlled Senate declined to act on Whig President Fillmore's first nomination, then rejected the next two, made after the presidential election, Justice John McKinley, who had died July 19, 1852, was not replaced until March 24, 1853. Another appointee, James Buchanan, had withdrawn his name from consideration, so the man who was finally confirmed was the fifth nominee, nominated by the new Democratic President. (Source: "At least 14 Supreme Court justices have been confirmed during election years", by  on

How could they have rejected two later appointments while still having failed to act on the first one? The only explanation that makes sense would be that the first one, like an unpassed bill, expired when that two-year Congress ended, and the next two were made to the new Congress while Fillmore remained in office until March 4. Or maybe Fillmore just saw that the first one was going nowhere and went ahead and made another nomination.

The new Justice, John Archibald Campbell, had been involved in the great Christmas Eggnog Riot of 1826 at West Point, which also involved Jefferson DavisRobert E. Lee, and a formal reading of the Riot Act. (Lee was only an innocent witness, of course: He's said to be the only cadet never to receive a single demerit.)

Dissenting from an 1854 decision that corporations had the same citizenship as their shareholders, Campbell wrote, “a corporation is not a citizen. It may be an artificial person, a moral person, a judicial person, a legal entity, a faculty, an intangible, invisible being,” but “it certainly is not a citizen.” He complained that corporations' "revenues and establishments mock at the frugal and stinted conditions of state administration; their pretensions and demands are sovereign, admitting impatiently interference by state legislative authority.” In another dissent, he said states should be allowed to change the tax laws affecting a corporation because the earlier laws in place when a corporate charter was granted were not a contract with the corporation. He distinguished “between the statutes which create hopes, expectations, faculties, conditions, and those which form contracts.” Dissenting in another, very similar case, he complained that the majority's judicial activism was elevating both courts and corporations over the rightful powers of the states, their people, and their legislatures. He warned that overly-protected corporations “establish on the soil of every state a caste made up of combinations of men for the most part under the most favorable conditions in society,” eventually spawning “a new element of alienation and discord between the different classes of society and the introduction of a fresh cause of disturbance in our distracted political and social system.” They “display a love of power, a preference for corporate interests to moral or political principles or public duties, and an antagonism to individual freedom which have marked them as objects of jealousy in every epoch of their history.” The majority finally came around to Campbell's position on corporate taxes in an 1860 opinion he authored.

Campbell's opposition to corporate citizenship, and support of states' rights to regulate corporations, were consistent with his fears of Negro citizenship and support of states' rights generally. In the Dred Scott case, he issued a separate concurring opinion, because he so strongly favored states' rights, and feared federal granting of citizenship, that he said the Supreme Court did not have the power to decide about Dred Scott's citizenship. In support of the Court's decision, he argued that despite the Constitution’s Territories Clause (Article IV, Section 3), Congress had never had power to regulate slavery in the territories because the Constitution gave it no power to legislate about slavery at all, and Congress's only role in the territories was to organize the institutions of self-government by the people; and that deciding an issue like slavery violated future states' right to decide such issues just as freely as the older states had, and be "on an equal footing" with the original states. And Southern states would never have ratified a constitution that they thought gave the federal government this power. (Though the 1787 passage of the Northwest Ordinance seems to indicate otherwise.)

While "riding circuit" in the 5th Circuit, he squelched private "filibustering" invasions of Cuba and Nicaragua. He resigned in 1861 to take a job in the Confederate Government. After the war he was a prominent opponent of Reconstruction. He returned to the Court as a lawyer to argue unsuccessfully for an expansive reading of the 14th Amendment in the Slaughterhouse Cases -- opposing New Orleans's granting of a monopoly to a new central slaughterhouse, forcing all other butchers to do business with it or not at all -- and opposing Reconstruction efforts in several other cases.

Another Justice's seat left vacant 27 months as Tyler & Polk each make 2 failed appointments

Justice Henry Baldwin died on April 21, 1844 and his successor was confirmed Aug. 3, 1846. Wikipedia explains:

President Tyler ... made two attempted appointments to the seat, Edward King and John M. Read, but the Senate confirmed neither, so the seat remained vacant when James K. Polk became president in March 1845. Polk also made two nominations, one of whom refused the appointment (future President James Buchanan), and the Senate refused to confirm George Washington Woodward. Polk finally nominated Grier on August 3, 1846, plucking him from relative obscurity. The Senate unanimously approved Grier on August 4, 1846 ...

In the meantime, another Justice died during the Tyler administration, and his replacement was confirmed 14 months later, three weeks before Polk's inauguration, while Baldwin's seat still remained vacant.

Grier, from South-Central Pennsylvania, was so conservative that he thought abolitionists were anti-Christian and anti-Constitution, but despised disunion and rebellion even more. He supported Fugitive Slave Act enforcement and the Dred Scott decision. During the Civil War, he decided that courts could take judicial notice that a war was going on even though Congress had never declared war, and upheld the constitutionality of blockading Southern ports in the Prize Cases, possibly deciding the outcome of the war by doing so. His other notable majority opinions (1) said a state bankruptcy could not discharge debts owed to people in other states (2) narrowly construed state-granted "charters" that had given monopolies to transportation businesses. The effect of this was anti-monopoly, pro-competition, pro-consumer, and pro-growth, favoring the building of additional transportation infrastructure.

The Senate did this again, to President Fillmore, and later to LBJ.

Bottom line: There is ample precedent for all kinds of long-term Senatorial BDSM games with Supreme Court appointments. Caveat: They did have a horrible Civil War a few years later.

Justice's seat left vacant for Pres. Tyler's last 14 months until bland apolitical 5th nominee confirmed

Supreme Court Justice Smith Thompson's seat was vacant 14 months, from his death on Dec. 18, 1843 until Feb. 14, 1845 when President Tyler's FIFTH nominee to the seat was confirmed. Tyler was seen as a Democrat in Whig's clothing, so the Whigs rejected four nominees, and finally confirmed #5, Samuel Nelson, a very unpolitical Democrat and a careful, controversy-averse judge, three weeks before a new Democratic president's inauguration.

(I had said on facebook that the Senate did to Tyler what they did to LBJ, and waited for the next president to appoint someone, but upon carefully rereading my source, that IS true, but that was for ANOTHER, 27-month, vacancy during the same time. For an interesting overview of several such situations, see "At least 14 Supreme Court justices have been confirmed during election years", by  on The title is misleading because it's really about the converse of that -- the three times the Senate has refused to let a President fill a seat in his last year, and the last two times it has forced appointment of a compromise third-pick. These have been responsible for the most important phases of the Court's recent history: Chief Justice Burger and his center-right leadership of the Court, especially on crime and civil liberties, and the all-powerful swing justices Blackmun and Kennedy, who gave us abortion rights and gay marriage.)

Anyhow, here's Wikipedia's account:

On February 4, 1845, Nelson was nominated by PresidentJohn Tyler to a seat as an Associate Justice on the Supreme Court of the United States vacated by Smith Thompson. President Tyler tried and failed many times previously to nominate a candidate to fill the seat on the court left vacant by Justice Smith Thompson. The appointment of Samuel Nelson in the last few weeks of his presidency was a very wise choice on behalf of President Tyler. Nelson was a highly respected chief justice on the New York Supreme Court, and during his time on the court Nelson acquired a reputation of fairness and directness. In addition to that, Nelson had a reputation of staying out of partisan conflict. Further reflecting this sensible appointment of President Tyler’s was the fact that it took the Senate only a couple of days to confirm his appointment. Samuel Nelson was the only Supreme Court Justice to be appointed by President Tyler.

Nelson was confirmed by the United States Senate on February 14, 1845, and received his commission immediately. Nelson's confirmation in the last month of Tyler's presidency was a surprise. The unpopular Tyler had failed repeatedly to fill the vacancy left by Thompson, as the Whig-controlled Senate rejected his nominations of John C. Spencer, Reuben Walworth, Edward King and John M. Read. The Whigs found Nelson acceptable because, although he was a Democrat, he had a reputation as a careful and uncontroversial jurist.

Nelson served as a Justice for 27 years, until his retirement on November 28, 1872. His tenure was generally viewed as unremarkable. Justice Nelson arrived on the Supreme Court in 1845, at a time when the Court was composed mainly of Jackson appointees. Over the course of his twenty-seven years on the Court, Nelson upheld his reputation for being a fair and respectable judge. As a result of Nelson’s non-partisan nature, he wrote mostly uncontroversial opinions. Justice Nelson was a constitutionally conservative Democrat. He could also be described as a judicial minimalist, meaning he frequently took a moderate stance in cases offering a small, case-specific interpretation of the law and placed a heavy emphasis on precedent. -- Wikipedia

Sound familiar?