Miller Center

LBJ’s Nomination of Abe Fortas to the Supreme Court, July 1965 and Chief Justice, 1968

By Kent Germany and Marc Selverstone

The nomination to Chief Justice, 1968

On 13 June 1968, Supreme Court Justice Earl Warren informed President Johnson that he would be stepping down from the court upon the Senate’s confirmation of his successor. Warren was 77 years old and feared that a victory that November by GOP presidential candidate Richard Nixon would give Republicans the opportunity to name the court’s next Chief Justice. Johnson gambled that he could appoint his friend and sitting associate justice Abe Fortas to the Court’s center seat, as well as nominate and confirm Fortas’s replacement, less than four months before Americans went to the polls.

President Johnson and Senator James Eastland

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June 23, 1968, 9:09 A.M.

Citation #13134, 13135, & 13136 WH6806.03. LBJ Library

In a called he placed to Senate Judiciary chair James Eastland (D-Mississippi) ten days after learning of Warren’s decision to retire, President Johnson discusses the prospects of replacing the Chief Justice with any number of candidates, including fellow Texan Homer Thornberry, Secretary of Defense Clark Clifford, Ambassador to the United Nations Arthur Goldberg, and Cyrus Vance, then in Paris trying to negotiate with the Vietnamese.

President Johnson and Senator Everett Dirksen

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October 1, 1968, 10:31 A.M.

Citation #13501, WH6810.01. LBJ Library

On the day the Senate failed to end the filibuster against the Fortas nomination, President Johnson discusses an intriguing proposal with Senate Minority Leader Everett Dirksen (R-Illinois): the nomination of former associate justice Tom Clark as Warren’s replacement. One problem with that approach is that Clark’s son, Ramsey, was the current attorney general, meaning that Johnson would likely be forced to reshuffle the leadership in the Justice Department.

President Johnson and Attorney General Ramsey Clark

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October 1, 1968, 11:05 A.M.

Citation #13504 & 13505, WH6810.01. LBJ Library

President Johnson and Ramsey Clark, the attorney general, discuss the newly floated possibility of naming former associate justice Tom Clark—Ramsey’s father—to replace Warren on the high court. It is a move that likely would mean the resignation of the junior Clark to pave the way for the senior.

President Johnson and Justice Abe Fortas

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October 1, 1968, 6:06 P.M.

Citation #13509, WH6810.01. LBJ Library

In the face of defeat, President Johnson and Abe Fortas discuss the politics of the latter’s nomination fight and their next moves in securing a replacement for Chief Justice Earl Warren.

The nomination to Associate Justice, 1965

In mid-July, 1965, Associate Justice Arthur Goldberg stepped down from the Supreme Court to take over as UN Ambassador. President Johnson wanted Abe Fortas, his longtime attorney and confidant, to be the replacement. Fortas demurred, but Johnson was not deterred. While he considered several other candidates, including a number of Republicans, Johnson did not stop pressuring Fortas and eventually got his man.

President Johnson and Senator Richard Russell

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July 19, 1965, 6:07 P.M.

Citation #8352, WH66507.04. LBJ Library

President Johnson explains Abe Fortas’s qualifications to Senator Richard Russell, emphasizing Fortas’s skills as a “craftsman,” a “technician,” and a "teacher" as well as being "one of the great lawyers of this country."

President Johnson and Ramsey Clark

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July 23, 1965, 4:25 P.M.

Citation #8381, WH6507.07. LBJ Library

Ramsey Clark, a Texan, was Deputy Attorney General and the son of U.S. Supreme Court Associate Justice Thomas Clark. In an over 35-minute call, he spoke to President Johnson about judicial appointments and other matters. The two men were keenly aware of political constituencies and discussed the merits of appointing a black judge, an Italian judge, a Jewish judge, and a woman judge. In this first clip, Ramsey and President Johnson discussed appointing a female to the Supreme Court. Both wanted to put a woman on the court and put more women in the federal judiciary, but worried that an appointment at this time would appear “gimmicky.”

President Johnson and Ramsey Clark

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July 23, 1965

Citation #8382, WH6507.07. LBJ Library

In this clip, Johnson asked Ramsey Clark if they would “catch much hell on Abe Fortas.” Ramsey provided an enthusiastic endorsement, explaining that Fortas would be a “truly distinguished appointment” and that “history will show that you appointed a great judge.”

President Johnson and Abe Fortas

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July 28, 1965, 11:48 A.M.

Citation #8406, WH6507.09. LBJ Library

Although Fortas had rebuffed the President, Johnson decided to hold a press conference to announce him as the nominee. In this call, Johnson invited him to watch the proceedings.

President Johnson and Mike Mansfield

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July 30, 1965, 10:00 A.M.

Citation #8415, WH6507.09. LBJ Library

Johnson had irritated Fortas's wife, the well-known tax attorney Carol Agger, by pressing forward with the nomination. In his pithy style, Johnson worried that pushing back Judiciary Committee hearings to accommodate Agger was a serious political mistake.

President Johnson and Abe Fortas

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August 10, 1965, 1:30 P.M.

Citation #8427, WH6508.03. LBJ Library

Johnson congratulated Fortas on a unanimous vote of support from the Senate Judiciary Committee.

Fortas was confirmed by the full Senate the next day and sworn in on October 4, 1965.