>> >> next, on lectures in history. brooklyn college professor kc johnson teaches a class on lyndon johnson and richard nixon's supreme court nominations. he describes johnson's plan to fill the bench with liberal justices and the difficulties he ran into trying to get them confirmed. he aligns the pushback from conservative senators and concludes with background on some of nixon's nominations to

the court. his class is about 75 minutes. >> all right, today we are going to be looking at is the development of controversial supreme court nominations in the late sixties and early seventies. we are looking at the war in court, this increasing surge of controversial decisions from the court. there's basically two basic principles. this idea that it was a particular job of the supreme court to stand up on behalf of people who may not have majority support, whether it was atheist, civil rights activists, or criminal defendants throughout the 1960s. second, the emergence of this philosophy that some historians have called rights-related liberalism. the idea that liberalism was primarily for the protection of individual rights. as a result, the supreme court became an important mechanism

for this. one problem, that is if you're going to be governing, you have to be able to appoint supreme court justices and as we will see this becomes a froth prospect for liberals. the backdrop, london be johnson, after 1964 with the civil rights act, 1965 he is the sense that the supreme court is going to be significant. unlike with kennedy, there are no openings on the court, so johnson essentially creates one. the first one comes in 1965. there is a custom that dates back to the wilson administration with lewis brandeis, and there is one jewish member on the court. the jewish member on the court in the early sixties with arthur goldberg, appointed by jfk. johnson however wants to appoint this man, his longtime

lawyer, close personal friend and adviser abe fortas he goes to goldberg and says look, it is important, we have a problem in vietnam. it can only be handled at the united nations. you are the best negotiator i know. for the good of the country you need to resign from the supreme court, except a job as a u.n. ambassador. he believes it and goes off to the un and is basically ignored by johnson for two years. fortas continues to advise johnson behind the scenes on important policy issues. he helped to draft speeches. imagine if job robson was consulted on trump's speeches. it would cause problems for johnson down the. road second, in 1967, thurgood

marshall who we have seen previously as the naacp chief counsel. who johnson appointed to the circuit court in new york, johnson sees an opportunity to name the first african-american to the court. there is no vacancy. there is however a vacancy to the position of attorney general. johnson looks far and wide in the country and decides that ramsey clark liberal lawyer, would make the world's top attorney general. one small problem, his father is on the supreme court. johnson goes to ramsey clark and says i would love to appoint you but i cannot do it with your father on the supreme court. if your father is willing to resign as a supreme court justice, i could appoint you as attorney general. the father resigns and johnson gets another vacancy. marshall moves on to the court. johnson assumes he will run for reelection in 1968, he will be reelected, there are three

failry elderly members of the court, including two justices who are not in good health in the late 1960's. he is working under the assumption he will be able to appoint four or five justices by the time he leaves office. instead, we all know the history. his support begins to weaken and in march of 1968, he announces he will not run for reelection. by the summer of 1968, it seems pretty clear the will have a tough time winning the election. this means johnson's successor will likely nominate the replacement for the chief justice. warren, in june of 1968 decides to preempt this possibility. he makes an announcement that he will retire as chief justice of the supreme court upon the confirmation of his replacement. what warren is telling to conservative senators, you have a choice, you can confirm whoever lbj nominates or i will be there as the chief justice

continuing to issue these liberal opinions. the expectation is most members will more or less go along with that. even if they don't like the idea of johnson naming a replacement. there is one other thing that is in the back of the minds of both warren and johnson. johnson is arguably the most gifted president in american history and if not the most gifted -- the second or third most gifted with understanding how congress operated. he had a sense of what he could get through congress. as johnson nominates a replacement, he is thinking of this chart. these are all supreme court nominations in the last two political generations. all the nominations from fdr, truman, eisenhower, kennedy, and johnson. take a look at this middle

column here. most of these nominations are confirmed with the letter v. that means there is a voice votem in a senate. they do not matter -- bother to hold a roll call. almost all of the others are overwhelmingly confirmed by the senate. by the late 1960's, there has become this expectation that yes in the constitution it says the president nominates the supreme court justice and senate has to confirm the selection. but whoever the president nominates will get confirmed and this is what johnson assumes will happen in 1968 as well. in june of 1968, the assumption is johnson has out fought his opponents again. he will get a liberal chief justice on the supreme court who will serve throughout the 1970's and ensure the supreme court will remain liberal.

there is another chart 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 his approval as measured by gallup. he goes up and down a little but there is a pattern. it goes from quite high in 1964. by early 1968 his approval rating is hovering around 35%. that is seven or eight points below what trump's approval rating currently is. it is a very low approval rating for lbj. along with the fact that he is not terribly popular, he is 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 1893. that was a long time ago.

this charming looking man. this was how will jackson, he was a grover cleveland nine the. serve for a couple of years and got ill and died in the 1890's. from this standpoint, there is a good precedent for johnson. a sickly any president who is nominated gets confirmed. why this precedent, johnson may have some problems here. he fills to anticipate where the key opposition comes from in 1968. this is the chart that johnson is looking at as he's making his election in 1968, this is the roll call vote for marshals confirmation.

you will notice that this is not a unanimous vote, like many of the other thirties, forties and fifties nominees have been. there are 11 senators who voted against thurgood marshall's confirmation the 11 are up top on the chart. if you squint closely you can pretty much identify where these people are coming from. they are all from the south. 10 of them are democrats. this is a peeriod, and the 11th is a former democrat who is at this point a republican senator from south carolina. 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 a southern opposition. if i can come up with a nominee who can appeal to the southerners, the nominees will go through without any problem. johnson makes this a little too complicated. he concludes that he does not

want to name a new replacement. instead, what he wants to do is elevate his friend. justice fortas. from associate justice to chief justice. so he wants to come up with a replacement for abe fortas as associate justice. he will have to make two nominations, rather than one. he goes through a number of lifts. but the man he is more interested in looking at is homer thornberry. here's a photograph of them. he knows him very well. thornberry had succeeded him in the house of representatives. johnson had been appointed thornberry to the fifth circuit based in new orleans. the appellate court judge nominated by johnson, he is a former congressman. very friendly with southern politicians. he is particularly friendly with richard russell, the most powerful of the southern democrats. johnson senses thornberry is

somebody who will appease these southerners. he will ensure that abe fortas will be confirmed. before johnson announces -- before johnson announces thornberry, he gets on the phone with several key figures. generally, when johnson would call you, this was not a two way conversation. johnson was not soliciting information. he was basically encouraging you to think as he did. his first call goes to justice fortas. he wants to get feedback for who would be a good replacement for fortas as associate justice. johnson has already made up his mind and his job is to basically say yes. thornberry has some advantages,

congress, city council, state legislator. i think you will be awfully good on the court. from the standpoint of the liberal press, they will not give me a fair trial. i'd be dominated by acclamation. for silver all liberties and civil rights. but the times and the post are against me, because they are antisemitic. and it is they hate the south. because i live in texas. that is the only thing they have against me. i've been there. i have adopted their platform, i know you have to go and it is time to just go get some more, how are you going to elect these people? people one through five? from the standpoint of my practical problem and what i may want to do here on all the other things. i have the senate, i have these velocity's, i have share votes.

look at this not from your standpoint, look at this from my standpoint. knowing me as you know me and what i want. i want somebody who will always be proud of his vote. then i will be proud of his opinion. i want to be proud of the side he is on. i want to be sure he votes right. that is the first thing. these are private conversations. >> fortas is not aware he is being recorded. he is perfectly candid here about what he wants. the chief goal here is to get someone who will vote the way johnson wants. one suspects that the conversation had a similar line, i am sure it did with trump's two nominations as well. johnson's goal is to ensure a

liberal majority on the court. he thinks he can do that with abe fortas and thornberry. johnson reaches out to key senators. he understood how the senate operated in the 1950's exceptionally well. his problem will be the senate in the 1960's operated quite differently. johnson in the 50's believed he could filter through key senate leaders. he reaches out to richard russell, a democratic senator from georgia. a segregationist, but the most prestigious of the southern democrats. russell likes thornberry a lot. he doesn't particularly like fortas. he is willing to go on with the nominations because that will get thornbury on the court. johnson reaches out to the minority leader. head of the senate republicans, everett dirksen. he and johnson had worked closely on the civil rights

act. he was a supporter of african-american civil rights. he knows fortas and likes him. he also knows and likes thornberry. johnson also reaches out to mike mansfield, the majority leader of the senate, representing some liberal moderate democrats. he isn't thrilled about fortas's nominee but will go along. it looks from johnson's mind. in late june of 1968 it looks as if this is a done deal. fortas has been nominated, thornberry is the associate. the three most powerful members of the senate johnson believes are already on board is willing to support the confirmations and this is a done deal. johnson's problem is that he essentially lost a decent amount of power. he hasn't conceptualized that and he will learn it very quickly in the summer of 1968.

two things happen almost immediately. the first, 19 republican senators signed on to a public statement prepared by this man, robert griffin, a republican senator from michigan. it comes to be known as the round robin. it articulates the view that will reappear in american life in 2016. it is potentially the same argument mitch mcconnell makes against the merrick garland nomination. we have a vacancy for the supreme court, a presidential election going on, we will withhold our support from any nominee on the grounds that the new president should be able to make this choice. >> johnson at this point had been elected in 1964. what griffin is doing is that

he is seen the polls. by june of 1968, nixon has assumed a fairly healthy lead over hubert humphrey. griffin is saying he is confident nixon will win. he basically says i want a republican to make the nomination rather than a democrat. if the polls were flipped. let's say we are in an alternative world and hubert humphrey were somehow ahead by 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 on to this statement. remember, we have 11 senators. 10 of whom are democrats. on paper, we have almost 30 senators who seem to be skeptical about a possible johnson nomination. the johnson white house staff does not detect this. just at the time as the griffin

round robin is coming out. johnson's liaison team in the white house that basically counts votes in congress prepared these documents for lbj. they say this is a shoe in. we have roughly 70% of the support in the senate. we have a handful of opponents but you don't need to worry. fortas is going to get confirmed. on paper, from the president's standpoint, this nomination seems to have gone very well. in reality there are big problems emerging that they do not seem to be detecting. johnson privately in late june and early july of 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 will not vote against fortas and thornberry. they will back down when the

nominees get to the floor. they are just trying to provide a show. this is not what happens. johnson does not quite understand. then there is a second problem. dating back to louis brandeis, supreme court nominees have gone before the senate judiciary committee. from the 1930s it had been a fairly normall practice where supreme court nominees testified before the committee and then asked their opinions on constitutional issues and offer feedback. these tended to be quite routine. nothing like we saw the last few weeks. nothing like we have seen before. nothing like where there would be a television spectacle. 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 exists. think back a few weeks ago to the brett kavanaugh hearings. we basically have 19 member committee. 10 very conservative republicans, nine fairly liberal democrats. it is an ideologically split committee. that is not the case in 1968. the chairman of the committee is this man, jim eastland, a democratic senator from mississippi. he voted against thurgood marshall's confirmation and voted against the civil rights act. 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 but had made clear he opposed

marshall. voted against the voting rights act and voted against the civil rights act. sam ervin, who we will and counter again in this class, democratic senator from north carolina had voted against the marshal confirmation voted against the voting rights act, and the civil rights act. these are the three most senior democrats on the judiciary committee. these are senators who today would be along the most conservative members of the. senate they are bitter critics of the war in court in the war in courts key decisions and so essentially, what they decide among themselves with the chair of the committee the, chair of the committee controls how the process operates, we have some examples for the last few weeks the key person in the kavanaugh hearings with the republican

chairman presided over the hearings, what easter mcclelland unnerving decided that they are going to use this opportunity to put the war in court on trial, to basically bring aid fortas before their committee and grill him on a variety of worn court decisions so instead of a routine hearing, would foot fortas gets is very detailed questions about specific warren court decisions. it doesn't give consistent answers, sometimes he says that he appealed to his decisions, sometimes he said that he can't talk about them because it's injustice and he can talk about how the court made its decisions and the committee also starts asking questions about fortresses advice to johnson. it is highly improper. a supreme court justice should not be providing political advice to a sitting president. everyone knew that fortas was doing it. for this says that he can't give this advice because it

would be an improper intrusion into the courts freedom of action. and the three conservative democrats say that doesn't make any sense, you are reeling to talk to the president but you're not willing to talk to the senate, that seems to be not respecting the authority of the senate and fortas, this is always a problem with tortoise, and lbj, forties thought like a lawyer, he tended to give these very specific legal estate answers that tended to sound very defensive. he was not a particularly good witness. but the star of the hearing is not any of the democrats. the start of the hearing is this man. strom thurman. republican senator from south carolina, former democrat, and presidential candidate the in 1964. he was a demagogue. he understood how to prosper in politics, he was a sharp

opponent of civil rights. and in thurmond mind, the question that were coming from fortas and mcclelland and east lint, were two legal acidic. they weren't going to attract the attention of the public. and make them a post for. this he goes over for this is judicial record, which is not particularly robust. he has only been on the court for three years. but what thurmond noticed was that for this had frequently been in five for majorities, on paper, the decisive vote, on a series of decisions that that warren court had made over pornography issues. where the courts had struck down state laws restricting the sale or dissemination of foreign pornography on the grounds of this violating the first amendment. and thurmond sensed that this might be a vulnerability, to portray fortas as a pro pornography justice. someone who is outside of the ideological mainstream. he welcomes as a witness and as

a member of the minority, they get to invite a handful of witnesses. this man, james clancy. who is key head of citizens for decent literature, an anti pornography organization. and clancy describes in quite robust detail, the plot lines of various films and books that fortas decisions had upheld as non obscene. in this line of attack, that fortas is essentially pro pornography justice, starts to resonate. a lot of conservative members of the senate begin to distance themselves. key both russell and dirksen, the senators that johnson thought he had in the bag, can retreat a bit. russell comes out against fortas. dirksen says he might kim

support him, he might not. johnston is trying to figure out what's going on. the problem here is that he doesn't have any close allies on the judiciary committee. he finally turns to some george smathers, a democratic senator from florida. a low ranking member of the judiciary committee. a close personal friend of jfk and lbj. he tries to get a sense from george smathers, why is this committee process taking so long? what george smathers tells him is that these senators are very interested in the pornographic films and indeed he suggests they frequently want extra time to view these films in person to determine their level of pornography. he is telling johnson that eastland is using procedures to delay things. if it is delayed after the

election it looks as if fortas will have little chance of nomination. two contextual items, johnson references this film called the graduate. dustin hoffman is the star. it is seen as a very racy film in the context of 1968. hoffman is seduced by the mother of one of his friends. george smathers talks about his own views for pornography here. he had a reputation for a very active social life. that is not the portrayal george smathers gives of himself in this conversation. >> i choose not to look at it, others choose to look at it. i don't look at it. i have not seen it. i don't know whether or not this is the kind of thing that should be going around or it shouldn't.

they will look into this very deeply. >> wednesday. eastland, i don't know how.

would you vote our next wednesday? >> i will vote on a next wednesday? yes. a filibuster. >> the committee? >> in the committee. can you >> can just do that? >> with the cooperation of eastland, i don't know how. >> he's referring to rule of the judiciary committee that allows any member of the committee to delay the vote by one week. and if you are dealing with a president who is running out of time in office, this repeated delays of one week are going to cause a significant problems. the pornography argument resonates with the public. before this confirmation is the first supreme court confirmation in american history that all of us would be at least somewhat familiar with. that is that the public is engaged with the confirmation. they are reaching out to members of the senate.

and the letters that senators are getting, in the pre-internet age, you contact the senator's office by typing out a letter and writing to him, the letters they are getting our overwhelmingly opposed. so these are a couple of photos of letters sent to quentin, a democratic senator from north dakota. he was one of four desist wrong defenders in the senate. these are lines from the average north dakota who is concerned about what they're hearing on fortas and they're saying that the verdict is making too many compromises with the issue of pornography and that you cannot compromise with the devil. this is so problematic. and let's say you are an undecided senator. you are going to get all these letters supporting fortas. johnson is not going to be around the next year to protect you, there's going to be new president you might be coming up for reelection in 1970 if, you don't have really strong opinions about this you might be inclined to say, look i'm just going to vote no and avoid this problem.

for this support starts to erode quite significantly. johnson is furious, he can figure out what is going on, he gets on the phone with ramsey clark and starts complaining that to the problem here is that griffin and thurmond and the senate republicans had been spreading too many unfounded rumors about fortas so it's time for the democrats to start spreading unfounded rumors about griffin to even the score. and again, as we see, clock doesn't really get a word in edgewise in this conversation. >> i just am here for 30 minutes in these fellows have press conferences and get their own of all-time, he's had some best moments this morning, and they make 40 out of 58 we just get tried. on that side didn't get in. . >> get so you can write some mean speeches that can say what they've done to deny, let them do some research. and so that is what you have got to do. you've got to employ their

resources. . do resources we don't ever keep them busy. i find some reason that we could end this thing, i don't think anybody has ever pointed out to griffin and said a week before the appointment. that he was -- he was not worried about pornography anybody look at his face consider that doesn't bother him. he was just worried that by god, he couldn't make the partisan political legal out of the chief justice justice and the republican chief justice pick a hadn't delayed it and played politics with it until he could get in. that is what he said. he said days before we named them. somebody will point that out. >> this is desperation. when your tactics forgetting your supreme court nominee confirmed is to say nasty, uncorroborated things about senate republicans, you are probably going to lose. and griffin delivers the final nail in the coffin for fortas

in the early fall of 1960 -- eight. griffin who is quite talented senator. he had made clear that he had heard rumors of for this being an ethical. , people had information, he says, oh my office. and what he finds out is that fortas had been given a substantial cash bonus, 15,000 dollars, which in 1968 is a not insignificant sum of money, to teach a very short seminar at american university law school. american university is in d.c.. less than a couple of weeks. and this money had not come from american university. instead, it had come from a handful of private donors who were friends of fortas and this sounds uncomfortably close to being a bribe. that these people are paying for it is to do a token amount of work. the dean of american university law school says that yes,

15,000 dollars sounds like a lot of money but fortas was doing more than just teaching a class. he had to prepare syllabus. as we know, preparing a syllabus is very expensive. it is not a credible allegation. the committee invites fortas to come back before and to explain what exactly he did for these 50,000 dollars. forties says no, and at that point, the southern democrats and the senate republicans jointly announced that they will filibuster the nomination. they are not going to allow it to come to a vote. the filibuster can only be breached if two thirds of the members of the senate votes to end debate. and it's clear that is not going to happen. october 1st, the senate votes, for despite his point, is reduced to hoping for the symbolic victory. he is hoping that a majority of the senate will vote to impose closure. he will say a majority of the senate wanted me on the supreme

court and those conservatives blocked me. instead the final vote is 45 to 43. can't even get to 52 impose cloture. he would've needed 57 to impose closure at that point the nomination is dead. this is october of 1968, johnson is still in office for a couple of months and he doesn't quite give up although this was this amount chance. fortas withdraws from the nomination from the next day after spending 24 hours but seeing if you might find a way to revive himself, but warren is still on the cool body makes it clear the doesn't really want to stay. as all of this is occurring, you have a presidential election which is going on. the presidential election in which the supreme court has emerged as a major issue for both of the challengers. but george wallace come, we

have encountered him before, the civil rights opponent, governor of alabama, 1968, runs as a candidate of the america independent party. strong opponents of civil rights. he argues that the roaring court has exulted the power of african americans. he doesn't use the word african american, exulted the power of criminals, exult the power of atheist and communists at the expense of real americans whose positions he is going to take. and he gets 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 is polling in double digits in brooklyn, in staten island, which is his best borough in new york city. in queens, and in upstate new york. he is not just a southern candidate. and indeed, he poses a problem

for the republican nominee, richard nixon. because if nixon is not, if wallace siphons too many conservative votes away from nixon, he would help the democrats win which the minority of the vote. nixon in 1968, embarks on this quite clever strategy, it was called at the time a southern strategy. it was much broader than history southern strategy, it was of challenging the precedents of the war in court. appealing to what we would call a racial backlash vote. but doing so in quote. you don't hear anything from 1968 from nixon that the civil rights act was bad, or that he was opposed to equal rights for black people. he wants to sort of leave impressions in the mind. the issue he seizes on is crime. the argument that nixon makes us at the warren court has made too many decisions in favor of the rights of criminals, and that this has created dangerous situations for society as a

whole. here's an example of a tv ad that he runs in 1968. on the issue of crime. it is a very cleverly constructed ad, because as you will see, there is only one person in this advertisement. we are left to imagine who the person but pursuing this woman 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 2.5 minutes. a mugging every six minutes.

a murder every 43 minutes. it could get worse unless we take the offensive. freedom from fear is a basic right of every american. we must restore it. >> the video of that ad does not appeal to racial sentiment at all. we are seeing a woman walking down the street. if you are a viewer in 1968 and you happen to imagine that an african-american man was following that woman, that might be what is in your mind. it is not what nixon says. the strategy in 1968's plausible deniability on the issue of race. he seems to be talking about the idea of crime and it seems to be an emphasis on the idea that african-americans are criminals. he does not really push the issue in a way that wallace does. there's a lot of overt racist rhetoric that we see from. wallace >> those numbers

accurate? >> these are perfectly accurate figures. indeed, in the late sixties, early seventies there was a crime wave. there are riots in most urban areas in the u.s. starting in 1964 and continuing through 68. every summer, there are major riots. one time in new york, one time in l.a., in new york, in rochester, new york. nixon is not inventing the crime issue. but the answer that he is giving is a simplistic answer. >> do you know how that compares to now? a historic low? >> yes, we will talk more about this when we get to the eighties and nineties. violent crime rate is way down from the sixties and seventies. although the severity of these crimes has increased because, the power of weapons has increased in some respects. but murderers down, armed robberies down, muggings are down. this is a period with a much more dangerous period, if you

want to use that. that is the case. nixon is not inventing the issue. he is putting a particular frame on the issue. >> did a cause a problem for martin luther king? >> the other policy backdrop here is that after the assassination of martin luther king junior, and the assassination 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. from nixon standpoint, the underlying argument is johnson and liberals in washington are interested not in protecting this woman walking down the street. they are interested into taking away or limiting the rights of guns for americans. >> nixon overwhelmingly winds. johnson, in 1968, had carried

44 out of 50 states. but by 1968, nixon basically suits the country, while his carries a handful of states in the south. the only southern state that humphrey carries was texas. as all of this is going on, johnson is still trying to come up with a scheme to put a replacement on the supreme court. and what he thinks is the possibility is to use the recess appointments power. this very obscure constitutional clause that was commonly used in the 19th century. but it had 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. what johnson is thinking in the october and early november of 68, before this vote, maybe

what i will do is congress is in recess, i will name a recess appointment as chief justice. it is not to be for this. we're not going to come up with this complicated scheme of a two for one replacement. but name illiberal. the liberal he seizes on is arthur goldberg, the former justice he had driven out of the supreme court in 65. the hope was, if he named goldberg as a recess appointment and goldberg was in place when nixon became president, that nixon might be somehow pressured to nominate goldberg for a full term. the chances of that happening were not high. nixon figures out what he is doing. almost immediately after nixon wins the election, nixon issues a public statement inviting earl warren to remain in place for the remainder of the term. basically saying he doesn't want a recess appointment. johnson can see that the game is up, he calls warren to

complain about the situation. like this conversations with for this, it is upright improper call because basically, we have johnson and warren trying to come up with a scheme to replace him. this conversation is from november of 68, and this is the last time that lbj thinks of the possibility of a supreme court nominee. >> the press will be asking us what right does nixon have to go into january 20th, and we committed, we will not name anyone for that reason. we are in bad shape with goldberg. now what we have said to goldberg, i have told people who have talked to me on his behalf, say that i don't think he could get confirmed, and i think it would be tragic for his life. but be, if there were evidence that i was wrong, i would certainly want to preserve it if i could. i would certainly regard him as

a good appointment. >> so what i. >> that is my problem with him. i don't think there is much chance. but i pray he is not going to understand what is happening here. he's going to be thinking that i have been playing and knowing the whole time this might happen. so, i hope you will explain to him what didn't take place. >> a typical johnson call, the other person does not really get in much. warren gets the message and warren calls goldberg. he says look, we tried for this recess appointment but it did not work out. we made in place for the remainder of the term. and he finally resigns in june of 1969. at which point, nixon nominates this man, warren burger, early conservative judge from the eighth circuit, which is based in the midwest, burger was based in minnesota to become chief justice of the supreme court. and so we replace a quite liberal, very liberal, chief justice with a fairly conservative chief justice and so that creates a more

conservative court. this is only nixon's first appointment. nixon will get to make for supreme court appointments all in his first term. significant turnover. the second is an unexpected one. justice for this. one of the great ironies of this, is that johnson, by trying to promote forties from associate justice to chief justice, paves the way for four days to collapse entirely and to be removed from the court. we are in late 68. the public has been exposed to this idea that fortas is a little ethically challenged. and we have this 15,000 dollar deal at american university, he seemed to be consulting with lbj in appropriately. it was clear that this guy was not a paragon of ethics. and the press starts looking into fortresses background and there have been rumors that for this was a very high price lawyer before he went on to the

supreme court and so being a public servant cost for it is a decent amount in terms of finances. his friends would try to prop him up, and then in 1969, it comes out that fortas had been accepting a retainer. every year, 20,000 dollar payments. from a financier named lewis wolf sin who was under criminal investigation. generally, for those of you are planning to rears as the supreme court justices, it's not a good idea to be accepting annual payments from someone who has subject to criminal investigations. this is highly unethical conduct, but the irony is that this probably would never have come out but for the fact that the press had been prompted to look into forties as a result of the 1968 fight. nixon starts sending out rumors that if ford is does not resign, that republicans and conservative democrats will seek to impeach him. and it seems not implausible

that for this would have been removed from office. it certainly would've been a very difficult fight. forties concludes that the integrity of the court is such, i need to resign and in the summer of 69, forties steps down. nixon gets a wholly unexpected vacancy. this is a guy who was appointed in 1965, who everyone assumed would stay on the courts at least through the 1970s, and now he's out after four years. so nixon goes to the justice department. in 1968, nixon had used a southern strategy. this idea of approaching the racial backlash as a way of getting southern votes. remember, we're going to go back to the map. nixon doesn't carry some southern states, he loses texas to humphrey, and this is arkansas and louisiana and mississippi, alabama and georgia to george wallace. so nixon's advisor say look, why don't we try to use this

vacant supreme court appointment as a way of appealing to southern conservatives? showing them that if they affiliated with a republican party, they will get a concrete benefit. the warrant courts to put it mildly, was not popular in the south. so if they can get a southern conservative on to the court, nixon concludes, that will be a way of bolstering republican support. and there seems to be a quite good judge from north carolina on the fourth circuit. it is an appellate court in the mid-atlantic states. we will his name is clement haynesworth. conservative judge, very pro business, very popular among north carolina republican types. a republican nominee at a time where there were not many republican judges in the south. remember, the south had basically been a one party, democratic area. the problem is that haines worth to actually has a pretty

good judicial record but not a great judicial record. there are some rumors of ethical improprieties, he had a couple of votes on civil rights issues that civil rights groups perceived as not particularly supportive. a group of young liberals in the senate, kind of embittered by what happened to a fortas in 1968 decided they are going to fight against he's worth. four haynesworth. ted kennedy. democratic senator from massachusetts, very young, ted kennedy at this point. been elected to the senate in 1962 to take the seat that his brother had once occupied. kennedy is named to the judiciary committee, becomes a prominent figure on civil rights issues, one of the democrats point people on civil rights issues throughout the 1960s. birch by, his son will later be

a u.s. senator from indiana, the governor of indiana as well. by served three terms in indiana which was a very conservative state then and now. he narrowly was elected in 62, narrowly reelected in 68,