Bench Memos

NRO’s home for judicial news and analysis.

Re: The Next Supreme Court Vacancy


To Ed Whelan’s excellent article today, I would add just a little historical context for the one and only–and as Ed notes, bipartisan–filibuster of a Supreme Court nomination in Senate history (unless one counts the serial fiasco of some rebuffed nominations for chief justice by Ulysses S. Grant in early 1874–but “filibuster” might not be accurate for what happened then). 

Abe Fortas, already an associate justice (but for just three years) in 1968, had been nominated to replace the retiring Earl Warren as chief justice.  While some of the opposition to Fortas was prompted by his liberal judicial activism, there was also the smell of “cronyism” about the nomination, owing to Fortas’s having continued, as a justice, to counsel his good friend President Johnson on political matters.  This was not an unprecedented relationship (see the correspondence of FDR and Felix Frankfurter), but by 1968 it was increasingly regarded as an affront to the separation of powers.  However, the final straw was the discovery of–to put it delicately–questionable ethical choices by Abe Fortas, such as his being quietly paid the princely 1968 sum of $15,000 for a series of lectures at American University.  After his filibustered nomination for the chief’s center seat was withdrawn, further financial misadventures were unearthed by Time magazine in the spring of 1969, and Fortas resigned his associate justiceship in disgrace.

In short, the only filibuster of a Senate floor vote on a Supreme Court nomination was not only bipartisan, it was a broad-gauged opposition for the best of reasons.  Fortas simply lacked the personal probity for service on the highest court in the land.  Our best historian of Supreme Court nominations, Henry Abraham, calls Fortas’s behavior “ill-conceived, arrogantly thoughtless, [and] downright stupid,” accounting for his downfall as caused in part by his “personal greed.”  (These quotes are from Abraham’s Justices, Presidents, and Senators, coming out in a new edition this fall.)


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