September 18, 1968

Fortas Court Nomination Case Of Double Standard

It is curious, is it not, how easily one politician can see the speck in another's eye despite the mote in his own?

The controversy over President Johnson's appointment of Abe Fortas to be chief justice of the U.S. Supreme Court is a case in point.

Senator Robert Griffin of Michigan is heading a determined attempt to deny the appointment on the grounds it is rank "cronyism" and that Fortas has violated the constitutional separation of powers by advising the President while a justice.

Good reasons all.

What Senator Griffin is too discreet to speak of on the floor of Congress, however, is more relevant in my opinion.

There is much indignant speechifying by President Johnson, Hubert Humphrey and Senator Philip Hart about the opposition to Fortas' appointment.  "Just partisan politics on the part of Republicans," they snort.

Maybe so.

But you don't have to be a gray-beard to hark back to 1960 when the shoe was on the other foot, and the Democrats were singing another tune — if I may mix metaphors.

Then, President Eisenhower was in his last year of office and it was RUMORED that Justice Frankfurter was about to retire.  Congress was getting ready to adjourn for the political conventions, and the Democrats were alarmed that Ike might appoint a new justice during the recess.

In great haste, Senator Hart introduced a resolution requesting Eisenhower not to make a recess appointment.  Such action, said the resolution, would greatly hamper the prerogative of the Senate to "'advise and consent" to the president's choice.  Strongly supporting the resolution was Johnson and Humphrey.

Take particular note that there was no actual vacancy on the bench.  No resignation was submitted.  Frankfurter had expressly stated he had no intention of resigning.  Yet the vague, improbable prospect of a Republican lame-duck president appointing a justice threw the Democratic majority into a tizzy.  The resolution was rammed through on strictly partisan lines.

It is ironic that this was not the only instance when Majority Leader Johnson thwarted Eisenhower's appointments.  In 1959, Senator Johnson led a successful fight to refuse Eisenhower's appointment of Lewis Strauss to be secretary of commerce in the executive cabinet.

During his final term in office, President Eisenhower tried repeatedly to get Congress to create some new Federal judgeships in order to move the mountain of cases that was nearly overwhelming our courts.  The Democratic majority repeatedly refused, unable to bear the possibility that a Republican president might fill the posts with other Republicans.  Ike even promised to fill half the judgeships with Democrats, but still no dice.

With John Kennedy inaugurated, the Democratic Congress quickly gave him 73 new Federal judgeships to pass out to party faithfuls.

No wonder the citizens become cynical about politics.

Though the double standard of conduct practiced by Democrats in recent years is galling to Republicans, the manner of Chief justice Earl Warren's recent resignation if indeed it was a resignation -- hits a new low in political skullduggery.

I have not been one to criticize Warren for his novel interpretations of constitutional law.  I think his desire to remake American society to fit his personal view is unorthodox, but it is essential a Libertarian — as distinguished from liberal — outlook.  With the growing power of a centralized, Federal government yearly encroaching upon our private lives, we may badly need personal protection from unchecked federal authorities in the years to come.

My guarded respect for Warren, however, was washed down the drain by his obvious and unworthy attempt to play petty politics with his resignation.

I all goes back to 1952 when the Republican national convention was searching for a presidential candidate that could break the Democrat's 20-year strangle hold on national government.  Earl Warren, governor of California, was a favorite-son candidate with a burning ambition for the nomination.  Among those who felt General Eisenhower was a stronger candidate was the California Senator Richard Nixon.

Warren never forgave Nixon for supporting Eisenhower instead of himself, a fellow Californian.  Through the years Warren has made no bones about his dislike for Nixon.

When President Johnson announced his retirement it was crystal clear to Warren that Nixon likely was to be the Republican candidate and, furthermore, was likely to win the presidency for two terms.

Unwilling to serve nine more years on the bench, necessary to prevent Nixon from appointing a Chief Justice, Warren hastily submitted a "conditional" resignation to President Johnson.

Never before in the history of the nation has a Supreme Court justice engaged in such a patently political maneuver.  Warren's resignation is valid ONLY IF HIS SUCCESSOR IS APPROVED BY THE PRESENT SENATE.  Otherwise he will stay on indefinitely.

The brazenness of the maneuver is almost beyond belief.  It is unethical, from one who is supposed to set the standards of integrity.  It is childish, from one who is charged to rise above the weaknesses of human nature.

In uncertain matters of government it is always well to fall back upon the wisdom of the U.S.  Constitution - particularly in disputes involving the judiciary.

Alexander Hamilton wrote in the "Federalist Papers," the indispensable handbook to the intent of the Constitution, that the requirement of Senate approval in the presidential appointing process would "be an excellent check upon a spirit of favoritism of the President, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachments, or from a view to popularity."

President Johnson and Chief Justice Earl Warren are guilty of several transgressions against the constitutional role of the Supreme Court.

The Senate has the urgent necessity in this immediate instance to exercise its responsibility to check the excess of the executive and judicial branches.

Author: Lindsey Williams