(2 of 9)
Sensing victory for their party in November, and outraged by reports that Warren is retiring so that Johnson will be able to choose his successor, 19 Republican Senators signed a petition that would deny the President the right to put anybody at all on the court during the remainder of his term. "At the present time," said Griffin, who brings considerable skills as a political organizer to the G.O.P. rebellion, "the American people are in the process of choosing a new government. By their votes in November the people will designate new leadership and new direction for our nation. Of course, a lame-duck President has the constitutional power to submit nominations for the Supreme Court. But the Senate need not confirm them —and, in this case, should not do so." Richard Nixon, who thinks that he will embody Griffin's "new leadership," agreed, not surprisingly, that Johnson should postpone all court appointments until Jan. 20, 1969.
If the Republican rebels keep up the fight, the battle promises to be spirited but probably not fatal for the President's men, who need only a simple majority for confirmation. Not only do the Democrats have close to a 2-to-l majority in the Senate, but several Republicans, including Minority Leader Everett Dirksen, have also promised to vote for confirmation. Fortas, said Dirksen, is "a very able lawyer" with "sound" philosophy. He called Thornberry, a Congressman for more than 14 years, a "very solid citizen,"
Griffin's rump group would have no hope on a direct vote, but with Congress rushing toward a hoped-for Aug. 3 adjournment, it might get its way with a filibuster. Though Majority Leader Mike Mansfield could ask for a vote of cloture to limit debate, he would need a two-thirds majority, always difficult to come by.
Some Concern. If all else fails, Johnson could keep the Senate in special session until his nominations are approved. Obtaining their seats only through cloture or a special session would, however, be something of a humiliation for Fortas and Thornberry. The President and his nominees thus have some cause for concern. There is at least a possibility, says Mansfield, that Earl Warren might have to delay his retirement.
The Republican argument has novelty on its side—but little else.
In this century alone, six Justices have been appointed in presidential election years, the last, William Brennan, being named by Republican Dwight D. Eisenhower little more than a month before the 1956 election, when the nation also had a chance to change its leadership. Chief Justice John Marshall was appointed by his friend John Adams only a few weeks before Thomas Jefferson was to take office. If the G.O.P. argument were followed through, noted Mansfield, "any time a President was elected to a second term, he would become a lame duck on the very first day of that term." Johnson himself was heard to mutter: "Some people think that the presidency should go into receivership during the next seven months."