The Abe Fortas Controversy: a Research Note On the Senate's Role in Judicial Selection

Abstract

AMUEL KRISLOV correctly observed the Senate's role in the process of selecting Supreme Court justices. He noted that rejection by the Senate is unlikely, and in this century has proven to be almost impossible.' However, Krislov's remark was made in 1965, and there now seem to be changes occurring in the Senate's judicial selection role. The first indication of this new role occurred in 1968 when President Johnson nominated Justice Fortas to be Chief Justice. After the Senate liberals failed to break the southern filibuster, Justice Fortas asked that his nomination be withdrawn. Not long thereafter, Justice Fortas was again under attack, this time based on charges of misconduct. The opposition to Fortas, which ultimately caused him to resign from the Court, was centered in the Senate. Then, President Nixon's 1969 nomination of Judge Haynesworth was defeated by Senate liberals, and this was followed by the 1970 fight over the nomination of Judge Carswell. At least two alternatives are available to analyze this new Senate role in the judicial selection process. One alternative is to analyze these four controversies comparatively in order to determine what, if any, generalizations can be derived. A second alternative is to study one of these controversies in depth in order to isolate the issues and participants. In some preliminary work using the first Fortas encounter, the in-depth approach has proven to be a fruitful research strategy for several reasons. The nomination of Fortas to be Chief Justice was the first confirmation defeat in this recent series of Senate battles. While this event is old news in terms of publicity, it is sufficiently recent to give indications of the current political process. And, although sufficiently recent for the analysis of contemporary politics, the first Fortas contest contains elements comparable to confirmation fights in the early part of this century. The most desirable research methodology would involve collecting interview data from leading senators in the contest, and from lobby groups who were in contact with senators on this issue. However, available resources do not always permit this type of research, and thus other data sources must be considered even if such sources are more indirect. In terms of direct issues related to Justice Fortas, the Senate Judiciary Committee hearings and the Congressional Record provide good information, but behind-the-scenes activity is usually not apparent from these sources. The early twentieth century confirmation fights over Brandeis and Parker are useful for inferring about interest group activities. The role of interest groups in these encounters is well known, and in certain analogous situations clues from the committee hearings and debates indicate the role of groups, such as labor and