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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


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