Lyndon B. Johnson Supreme Court Candidates - Abe Fortas Chief Justice and Homer Thornberry Associate Justice Nominations

Abe Fortas Chief Justice and Homer Thornberry Associate Justice Nominations

When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Associate Justice Fortas to replace Warren as Chief Justice, and nominated Homer Thornberry (whom Johnson had previously appointed to the United States Court of Appeals for the Fifth Circuit in 1965) to the Associate Justice seat that Fortas would be vacating. Thornberry was chosen out of a larger field of candidates who were considered, including former United States Deputy Secretary of Defense Cyrus Vance, Maine Gov. Edmund Muskie, United States Secretary of the Treasury Henry H. Fowler and prominent lawyer Albert E. Jenner, Jr.

However, the Warren Court's form of jurisprudence had angered many conservative members of the United States Senate, and the nomination of Fortas provided the first opportunity for these senators to register their disenchantment with the direction of the Court; they planned to filibuster Fortas' nomination. Senate Judiciary Committee chair James Eastland told Johnson he "had never seen so much feeling against a man as against Fortas." Fortas was the first Chief Justice nominee ever to appear before the Senate, and he faced hostile questioning about his relationship with Lyndon B. Johnson.

Johnson sought to help Fortas win a majority vote, but only as a face-saving measure, according to Johnson aide Joseph Califano:

The debate on Fortas's nomination had lasted for less than a week, led by Republicans and conservative southern Democrats, or so-called "Dixiecrats". Several senators who opposed Fortas asserted at the time that they were not conducting a perpetual filibuster and were not trying to prevent a final up-or-down vote from occurring. However, the Senate web site now characterizes the debate as the first filibuster on a Supreme Court nominee.

In 1968, Senate rules required two-thirds of senators present to stop a debate (now 60% of the full Senate is needed). The 45 to 43 cloture vote to end the Fortas debate included 10 Republicans and 35 Democrats voting for cloture, and 24 Republicans and 19 Democrats voting against cloture. The 12 other senators, all Democrats, were not present.

The New York Times wrote of the 45 to 43 cloture roll call: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote."

Once Fortas withdrew his nomination in October 1968, Thornberry's nomination became moot and was withdrawn by the White House without a vote. Former Justice Arthur Goldberg later claimed that he was Earl Warren's preference to succeed him. After Fortas's nomination was withdrawn in the face of Senate opposition, Johnson briefly considered naming Goldberg as Chief Justice as a recess appointment before rejecting the idea.