The Lessons Gleaned from Filling the Supreme Court Vacancy in 1968
The passing of Associate Justice Antonin Scalia has left a vacancy in the United States Supreme Court, a situation that is particularly challenging during a president's final year in office. This predicament is not new; the last time a Supreme Court vacancy occurred during a president's final year was in 1968.
In that year, then-Chief Justice Earl Warren decided to retire from the court to deny a potential nominee chosen by the GOP presidential candidate, Richard Nixon. His decision led to a nomination of Abe Fortas as chief justice, a move that ultimately resulted in a fiasco.
The Senate, led by Republicans and conservative Southern Democrats, blocked Fortas' nomination due to a series of highly contentious confirmation hearings and the emergence of a privately funded offer to teach at American University. Warren's motives for retiring were both personal and political, as he had clashed with Nixon in 1952 and was alarmed by Nixon's attacks on the Warren Court.
The Fortas fiasco taught a valuable lesson: it is crucial to avoid nominating someone strongly opposed by the opposition party and its presidential candidate. To have any hope of getting a nominee confirmed before the November election, President Obama should pick someone acceptable to a majority of the Senate Republicans.
A suitable nominee would likely be from the U.S. Courts of Appeals or a state Supreme Court and would have a centrist and uncontroversial record as a judge. Potential candidates might include moderate judges with a balanced judicial record, such as Merrick Garland or Ketanji Brown Jackson. However, precise candidates depend on the current political context and vacancies.
Fast forward to 2016, and the Republicans control both the Senate Judiciary Committee and the larger Senate, making it easier for them to block a nominee they object to. Senate Majority Leader Mitch McConnell has announced that the Senate will not consider any nomination made prior to the presidential election in November.
The movement of conservative white Southerners into the Republican Party has led to an outright GOP Senate majority, giving them a stronger position to block a nominee. This was evident in 1968, and it remains a significant factor today.
Johnson withdrew Fortas' nomination, leading to two early appointments for Nixon. The Fortas fiasco serves as a reminder of the political maneuverings and challenges that can arise when trying to fill a Supreme Court vacancy during a president's final year in office.
In conclusion, the passing of Justice Scalia has once again highlighted the complexities of filling a Supreme Court vacancy in a president's final year. The lessons learned from the Fortas fiasco in 1968 still hold true today: the importance of picking a nominee acceptable to both parties and the potential challenges posed by a Senate majority opposed to the nominee.
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