We are being engulfed by a wave of Lyndon Johnson nostalgia. Perhaps that’s because this is the 50th anniversary of the Civil Rights Act of 1964. Perhaps it’s because of Robert Caro’s outstanding series of books on LBJ. Or maybe it’s because people are frustrated with President Obama’s inability to influence Congress. At any rate, there is now even a Broadway play on the President starring the guy from “Breaking Bad.” LBJ is back in a big way.
Vietnam is the huge stain on Johnson’s record, but I want to talk about his unfortunate relationship with the Supreme Court. I say unfortunate in part because LBJ had no respect for separation of powers with respect to the Justices and set some important negative precedents:
1. Johnson talked Chief Justice Warren into heading the Warren Commission. This is the last time that a sitting Justice undertook a significant extra-judicial task. Most people now agree that the Justices should not be doing this sort of thing at the behest of the White House.
2. LBJ persuaded Arthur Goldberg to leave the Court to become UN Ambassador. He did this to put Abe Fortas on the Court. It is hard to imagine any future President convincing a Justice (especially a young and healthy one) to leave the Court, and most people would consider that lobbying totally inappropriate now.
3. The President appointed Ramsey Clark Attorney General to get Tom Clark (his father) to resign from the Court. Otherwise, Justice Clark would have had to recuse himself in many cases. He did that to create an opening for Thurgood Marshall. That was a good appointment, but again the tactic was pretty dubious.
More important, Johnson made a colossal mistake by appointing Justice Fortas and then by trying to make him Chief Justice. Goldberg probably would have been a reliable liberal vote until the 1980s. Fortas, on the other hand, had to resign in 1969 due to his ethical problems. He was replaced by Justice Blackmun, who was not as liberal as Goldberg and (in my opinion) wrote terrible opinions. Meanwhile, when Chief Justice Warren tried to retire in 1968, LBJ could have gotten a liberal replacement confirmed. Instead, he tapped Fortas, who could not be confirmed. That ended up giving us Warren Burger, who was one of the worst Justices of the last fifty years. A Supreme Court in the 1970s with Goldberg and some other liberal in place of Burger would have been a very different place.
The Master of the Senate was not the Master of the Supreme Court.