Supremely Contentious

By Hindley, Meredith | Humanities, September/October 2009 | Go to article overview

Supremely Contentious


Hindley, Meredith, Humanities


The Transformation of "Advice and Consent"

In the aftermath of the Senate hearings to consider the president's nominee to become the next U.S. Supreme Court justice, it's hard to remem- ber that the process wasn't always like this. There weren't always weeks of media coverage, and there weren't always hearings. Nor did individual senators spend hours calling witnesses, making statements, or cross-examining the nominee. In fact, the first nominee didn't testify before the Senate Judiciary Committee until 1925, when Harlan Stone proposed an appearance to answer questions about his ties to Wall Street. It would be another four- teen years and five justices until nominee Felix Frankfurter appeared before the committee to address rumors that he was secretly a Communist. Starting with John Harlan in 1955, all nominees appeared before the Senate Judiciary Committee. Southern senators, unhappy with the 1954 Brown v. Board of Education deci- sion, wanted the opportunity to question nominees about their judicial philosophy. Even so, subsequent hearings lasted three days at most.

The short-and-sweet approach became a thing of the past in the late sixties, as the vetting of Abe Fortas, Homer Thornberry, Clement Hayns worth, and G. Harrold Carswell turned into extended brawls. At issue was the legacy of the Warren Court. But the changes in political process were also important, as they proved long-lasting and transformed the way the Senate provides "advice and consent" to the president on Supreme Court nominees.

At the end of June 1968, President Lyndon Johnson announced that Chief Justice Earl Warren intended to retire. Warren had presided over the Court since 1953. During his tenure, the Court handed down a series of rulings that expanded civil liberties and protected the rights of individuals. Brown v. Board of Education, and subsequent civil rights rulings uprooted Jim Crow laws in the South and challenged long-standing racial mores. The Court also expanded First Amendment rights, rolling back laws that barred Communists from jobs and targeted pornography. Prayer and Bible reading were also banned in public schools. The rights of the accused were expanded as well, including the 1966 Miranda v. Arizona decision, which required police officers to inform criminal suspects of their Constitutional rights prior to questioning.

The news of Warren's retirement came as a relief to Southerners, states' rights advocates, social conservatives, and law-and-order proponents. In their eyes, the Warren Court had corroded the fabric of American society.

Warren's retirement, however, came with strings: His resignation would not become effective until "such time as a successor is qualified." To replace Warren, Johnson wanted to elevate Associate Justice Abe Fortas to chief justice and appoint Homer Thornberry to fill the empty associate justice chair. Both men were liberal and would carry on the work of the Warren Court.

Fortas had served on the Supreme Court since 1965, when he replaced Arthur Goldberg as the Court's only Jewish justice. Born and raised in Memphis, Fortas put himself through Southwestern College (now Rhodes College) by playing the violin at school dances. A stellar turn at Yale Law earned him an appointment as assistant professor upon graduation in 1933. Four years later, Fortas headed to Washington to work for the Roosevelt administration, becoming undersecretary of the Interior in 1942. In 1947, he co-founded one of Washington's leading law firms, Arnold, Fortas & Porter (now Arnold & Porter).

Thornberry was a dear friend of Johnson's from their early days in Texas politics. The product of a dirtpoor upbringing by deaf parents, Thornberry worked his way through the University of Texas and its law school as a deputy sheriff. While still in law school, he was elected to the Texas legislature. A stint as district attorney followed, along with service in naval intelligence in World War IL The friendship continued in Washington, when both men were elected to Congress in 1948, Johnson as a senator and Thornberry as a representative. …

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