Constitution Daily

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Looking back: A new Justice replaces a filibustered candidate

May 12, 2019 by NCC Staff


On May 12, 1970, the U.S. Senate finally confirmed Harry Blackmun to the Supreme Court, ending a 391-day-long effort to replace Abe Fortas on the bench.

Fortas had been nominated to the Supreme Court by his close friend, President Lyndon Johnson, and then confirmed by the Senate in 1965. Fortas and Johnson had worked together during the Franklin Roosevelt administration, and Fortas also represented Clarence Gideon in his landmark 1963 Supreme Court case, Gideon v. Wainwright.

In 1968, Johnson nominated Fortas to replace the retiring Earl Warren as Chief Justice, during an election year and against significant resistance in Congress from Republicans and southern Democrats. Fortas was unable to overcome a cloture vote in the Senate to move his nomination to the full floor for a vote. (To this day, it is debated whether the cloture-vote failure was a true filibuster of the Fortas nomination.)

Fortas remained on the Court into 1969, amid allegations that he had taken legal payments for speaking engagements that represented a conflict of interest and accepted money from a financier who later faced a government investigation. Fortas resigned from the Court in May 1969 after Richard Nixon had become President.

President Nixon then made two unsuccessful nominations of justices to replace Fortas.  In August 1969, Nixon picked Clement Haynsworth to replace Fortas.  Haynsworth received much criticism about his civil rights decisions on the lower court Fourth Circuit Court of Appeals bench and the Senate opposed his nomination in a 55-45 vote.

Next, Nixon turned to another federal judge, Harold Carswell, in January 1970. Carswell also faced scrutiny for statements he had made about the civil rights movement while he was a political candidate in Georgia, including remarks supporting white supremacy. Like Haynsworth, Carswell proceeded to a Senate vote where his nomination failed, 51-45.

Finally, Nixon turned to Harry A. Blackmun, who had been on a federal appeals court for 21 years.  Nixon’s new Chief Justice, Warren Burger, had recommended Blackmun, his close friend from Minnesota, as Fortas’ replacement. Nixon nominated Blackmun in April 1970 and within a month, Blackmun was confirmed by the Senate.

There were expectations that Blackmun, a Republican, would join the Court’s conservative wing. However, in 1973, Blackmun wrote the majority opinion in Roe v. Wade, and by the later 1970s he was voting more with the Court’s liberals on certain kinds of cases. By the time of his retirement in 1994, Blackmun was firmly on the liberal side of the bench. He was replaced by Justice Stephen Breyer.


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