F O CA Y L IT I S F O R A R E N V I I A N LE , U T L University of California Santa Barbara IG T H T S H A E RE E A N B R T A A BARB Department of History Santa Barbara, California 93106-9410 Laura Kalman July 31, 2016 Dear Members of the NYU Legal History Colloquium: Thank you so much for agreeing to read my book manuscript! (And please do not copy, cite or circulate it without permission.) I have just submitted the manuscript (seconds ago) to Oxford for copy-editing, so I won’t be able to add any new chapters, based on what you tell me. But I will be able to make changes when the manuscript comes back from the copy-editor and before I submit the final version. It would ideal if you could make your criticisms as targeted/specific as possible so I know what to fix, massage, rewrite, add, delete, etc. But whatever you say, I really look forward to being with all of you again. Best wishes, Laura Kalman, Professor of History, UCSB 2 Colloquium on Constitutional & Legal History NYU School of Law August 31, 2016 The Long Reach of the Sixties: LBJ, Nixon and Supreme Court Nominations Laura Kalman [email protected] 805-453-8673 3 In Memory Of Newton Kalman, 1920-2010 Celeste Garr, 1924-2010 John Morton Blum, 1921-2011 Lee Kalman, 1919-2014 Protectors, Promoters, Teachers, Friends 4 Preface On February 13, 2016, friends found the body of the Supreme Court’s preeminent conservative in his suite at a hunting resort in West Texas. Seventy-nine-year-old Antonin Scalia had unexpectedly died of natural causes just as the nation moved into an unusually fraught Presidential primary season. With the Court frequently divided on big issues 4-4 between “liberals” and “conservatives,” and another 79-year-old justice, Anthony Kennedy, casting the swing vote, “Scalia’s Death Offers Best Chance in a Generation to Reshape Supreme Court,” the New York Times declared. Since President Obama had almost a year left in office and promised to fulfill his constitutional duty by naming a new justice, his fellow Democrats expected him to do so, though many doubted that the Republican Senate would confirm the nominee. After all, less than two hours before the public learned of Scalia’s death, Senate Majority Leader Mitch McConnell of Kentucky had incensed Democrats by declaring that “it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”1 Five weeks later, Obama nevertheless nominated Merrick Garland, a white Harvard College and Law School alumnus. Like almost all justices since the mid-1970s, Garland was a federal judge with sterling credentials. He had been Articles Editor of the Harvard Law Review and had clerked for two legendary judges, Henry Friendly and William Brennan. He had also served as a partner in one of the capital’s preeminent law firms, federal prosecutor in the Bush I Administration, and Deputy Assistant Attorney General in the Clinton Administration before Clinton successfully named him to the DC Circuit Court of Appeals. By some standards Garland was centrist; by others, a centrist 5 liberal slightly to the right of the Court’s liberals. While he was the best the Republicans could hope for, a Justice Garland seemed likely to move the Court leftwards. Senate Republicans simply refused to hold hearings.2 Obviously, the Supreme Court nomination would play a critical role in the political season. By this time, Americans had grown accustomed to the eruption of periodic battles royal over Supreme Court vacancies, particularly when the President’s party did not control the Senate. Some traced the origins of this state of affairs to Ronald Reagan’s unsuccessful nomination of Robert Bork in 1987. In fact, it began over twenty years earlier when Lyndon Johnson and Richard Nixon created a new kind of Presidential politics around nominations to the Supreme Court. 3 *** The Long Reach of the Sixties shows how, between 1965 and 1971, Supreme Court nominees and their confirmations became critical to Presidential politics. As Lyndon Johnson and Richard Nixon, the Senate, prospective justices, members of the Court, interest groups and the public mobilized, they created and politicized the modern nomination and confirmation process. The period saw two successful Supreme Court nominations and two failed ones by Johnson, and four successful Supreme Court nominations and two failed ones by Nixon. The quest to enlist the Court in consolidating Presidential power caused big battles that had lasting consequences for the Court’s political significance and the selection and confirmation of Supreme Court justices that still resonate for the Garland nomination today. Scholars have long focused on the turning point that Roosevelt’s 1937 Court Packing Plan posed for President, Court and country. After the resolution of that crisis, 6 however, the Court and its membership consumed space in Presidents’ partisan calculations only sporadically. FDR wasted little time worrying about the Senate’s reaction to his prospective Supreme Court nominees or what they would do as justices-- which may be one reason they fought with each other so much. That pattern continued under Truman, Eisenhower and Kennedy.4 Then, when LBJ and Nixon in rapid succession tried to enlist the Court in service of their Presidencies, the Senate asserted itself and nominations became more fraught. Just as we evaluate the impact of Presidential nominees on the Court, we need to examine prospective justices in the context of the Presidency. As Johnson and Nixon saw it, they needed a clearer idea of what potential candidates for Court vacancies would do because the Supreme Court under Earl Warren was making waves by transforming the meaning of the Constitution for civil rights, criminal procedure, internal security, reapportionment, religion and speech. With their expansive vision of the political chessboard and potential chess pieces, LBJ and Nixon modeled for their successors how the President should and should not factor the Court into the politics of the Presidency. With his first nomination, Johnson sought to install a spy at the Supreme Court, to maintain the tradition of the “Jewish seat,” and to continue keeping tabs on the Justice Department. With his second, Johnson created the “black seat” by naming the first African American to sit on the Court at a time when he worried that the civil rights consensus underlying Cold War liberalism was teetering. With his two failed nominations in 1968, LBJ hoped to reward devoted friends and to sustain the ideological momentum of the Warren Court, though he had some reservations about it. Like Chief Justice Warren, LBJ considered the Court part and parcel of his Great Society. For that 7 and other reasons, Republicans and southern Democrats derailed the nominations in a brawl about Johnson’s attempt to name “cronies” to the Court; the Warren Court’s civil rights, criminal law and obscenity decisions; and charges of financial impropriety. 5 The Warren Court became Richard Nixon’s quarry. He used it to win election in 1968 and to unify, shape and broaden the modern Republican Party. As President, he tried to create vacancies by getting rid of two of the Court’s most liberal members, and he nominated six individuals to the Supreme Court whom he touted as “strict constructionists” or “constitutionalists.” Now, liberal Democrats, often aided by moderate or progressive Republicans, mounted a counterattack. The Long Reach of the Sixties turns the spotlight on Johnson and Nixon’s attempts to populate the Court between 1965 and 1971. Using recordings of Presidential telephone conversations, along with archival sources, it grounds the efforts by LBJ and Nixon to shape the Court in the political history of their Presidencies. It places the ideological contest over the Court within the context of the struggle between the Executive, Judicial and Legislative branches of government and interest group mobilization. The fights that followed fixed the image of the Warren Court as “activist” and liberal” in one of the arenas where that image matters most, the contemporary Supreme Court appointments process. The book also investigates the ways in which the sixties have haunted and scarred that process. Of course, Supreme Court nominees had faced attack before the late Warren era. But even by the standards of the nineteenth century, when confirmation struggles over Supreme Court justices routinely occurred, the fights about nominees from 1967-71 proved exceptionally contentious. If how we react to a Supreme Court nominee 8 depends on whose ox is gored, what makes this period special is that Warren Court partisans and antagonists alike had plenty of oxen at risk for slaughter. We improve our understanding of the combination of political and constitutional developments that have made so many nominations since the mid-twentieth century so significant if we root the modern Supreme Court appointments process in “the sixties,” a period that lasted into the early seventies. But we should recognize, that just as contingency pervades history, it plays a large role in this story. Like other Presidents, LBJ and Nixon named people to the Supreme Court according to Holmes’s proverbial “felt necessities of the time,” and, as ever, all history “teaches” us is that history turns on a dime. If political science is too neat to instruct Americans on how to govern, history is too messy. Nevertheless, in a real and often unfortunate way, Johnson’s and Nixon’s tussles over nominations have shaped how the Warren Court is remembered and how justices have been chosen and confirmed ever since.