The sudden death of Supreme Court Justice Antonin Scalia yesterday rocked America’s judicial and political worlds.
As discussion pivoted to the appointment of his successor, historical precedents emerged. The New York Times reports:
With Democrats and independents who caucus with them holding 46 seats in the Senate, Mr. Obama already faces a challenge getting to the simple majority needed to confirm a nominee and would face an even steeper climb to rally the 60 votes needed if Republican opponents mount a filibuster to his choice.
Filibusters of Supreme Court nominations are rare, but the Senate blocked the confirmation of Abe Fortas to chief justice in 1968, leaving the seat to be filled by his successor, President Richard M. Nixon.
Fortas’ name has become a footnote in history. But Westporters remember him well.
For years, he owned a 19th-century farmhouse on Minute Man Hill.
Adam Stolpen — an attorney and longtime area resident — recalls that nearly every summer day, Fortas and his wife walked to Compo Beach. They’d drink martinis, swim in the Sound, and get burgers and dogs from Chubby Lane’s concession stand.
Sometimes they were alone. Often, they brought high-powered Washington guests. Justice William O. Douglas and his wife visited; so did Isaac Stern. Lyndon Johnson came too, Stolpen says, though not while president.
On July 5, 1968 — well into an election year, when the associate justice had just been nominated by President Johnson to be elevated to chief justice — Time magazine opened its profile on him this way:
“Will you trust my judgment, Mr. Fortas?”, asked the salesman at Welch’s Hardware Store in Westport, Conn. Dubiously, the Chief Justice-designate of the U.S. fingered the new, chemically treated dustcloth, examining it carefully by sight and feel. Finally, aware perhaps that this was a matter beyond his competence, he concurred with the clerk’s opinion.
Tramping around the narrow streets of Westport, accompanied by TIME Washington Bureau Chief John Steele, Fortas was enjoying the scruffy anonymity of any other summer refugee from the city. In baggy grey pants, a flame-red cardigan sweater, scuffed brown shoes (one with a tongue missing) and…
Fortas’ nomination was already in trouble though, for ethical reasons. He had accepted $15,000, for 9 speaking engagements at American University. The money came from business interests.
LBJ aide Joseph Califano wrote later that the president said, “We won’t withdraw the nomination. I won’t do that to Abe.”
Though we couldn’t get the 2/3 vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. “With a majority on the floor for Abe, he’ll be able to stay on the Court with his head up. We have to do that for him.” Fortas also wanted the majority vote.
It didn’t work.
On October 1 — just a month before the election — a slim 45–43 majority of senators voted to end the filibuster. Later that day — reading the handwriting on the wall — Fortas asked Johnson to withdraw his nomination.
And why is that Joseph Califano quote so important for “06880”readers?
Nearly 50 years later, he too is a Westport resident.