Many leaders of the Democratic Party are increasingly worried about President Biden’s low ratings among voters, fearing that he could lose next year’s election, even to former President Donald Trump. There is the option, now being considered in some quarters, of persuading the president to step aside so that he might be replaced at the top of the ticket with a younger and more engaging candidate. There is one unanswered question standing in the way of such a maneuver: What, then, is to be done with Vice President Kamala Harris, who is even less popular than President Biden, and a certain loser in the presidential election?
This means that Biden cannot step aside unless or until some sufficiently attractive position is found to induce the Vice President to resign. What might that be? Some have floated the possibility of creating a vacancy on the Supreme Court that she could fill via an appointment by President Biden. That would take her out of the line of succession, give her a lifetime appointment on an influential institution, and permit the President to appoint a new vice president. That person, whomever he or she might be, would then step in as the party’s fresh candidate for the 2024 presidential election.
That may appear to be an unrealistic option, since there are no current vacancies on the Court, and none likely to arise anytime soon. Is there some way to create a vacancy? There is a precedent for a maneuver of this kind in Lyndon Johnson’s Supreme Court machinations in the 1960s.
After President Johnson won a landslide election in 1964, he set about introducing a raft of Great Society legislation in the early months of 1965: Medicare and Medicaid, the Voting Rights Act, the Higher Education Act, and the Elementary and Secondary Education Act, all of which were passed into law by the end of the year. Johnson hoped to outdo his hero, President Roosevelt, in the size and scope of his domestic reforms—and he probably succeeded. But there was one institution that did not yet bear the stamp of Johnson’s influence. He had no appointments to the Supreme Court, with none on the immediate horizon.
He concocted a possible solution to this deficiency when Adlai Stevenson, his ambassador to the United Nations, suddenly died of a heart attack in July of 1965. Johnson pretended to search for a replacement, though he had already identified one in the person of Arthur Goldberg, then an associate justice of the Supreme Court, appointed by President Kennedy in 1962. It was an odd choice, because Goldberg’s background was in labor relations; he knew little about foreign policy. Besides, he was a sitting justice on the Supreme Court. A few days after Stevenson’s death, Johnson floated this idea to Goldberg at a White House meeting called for a different purpose. Johnson suggested that he needed a tough operator like Goldberg to handle negotiations over the war in Vietnam.
Goldberg demurred, not wishing to give up a Supreme Court appointment for a thankless post at the U.N. He was troubled by the suggestion, as he told his wife, aware that Johnson did not like to take “no” for an answer. A few days later, Johnson invited Goldberg to accompany him to Stevenson’s funeral in Illinois aboard Air Force One, on which occasion he pressed him directly to resign his seat on the Court to take the ambassadorship. Johnson told Goldberg that he would reappoint him to the Court to fill the next open seat. Goldberg demurred, once again, telling Johnson he needed to talk it over with his wife.
Did Johnson have something on him? Goldberg must have wondered the same thing. When Johnson called the next morning, Goldberg reluctantly agreed to resign his seat on the Court. Within hours, he and his wife, both crestfallen, were called to the White House to stand next to President Johnson as he announced the surprising appointment to the U.N. With this move, Johnson had his vacancy on the Court.
The next week Johnson appointed Abe Fortas, his old ally and “fixer,” to fill Goldberg’s seat on the Court. That was undoubtedly his plan all along (too bad for Goldberg). Fortas, following graduation from Yale Law School, pursued a career in government during the 1930s, and later became a partner in Arnold and Porter, the most influential law firm in Washington. When Johnson won the Texas Democratic primary for Senate in 1948—effectively securing him victory in the general election—by 87 votes, he turned to Fortas to defend him against charges that the votes were stolen. Later, when Johnson assumed the presidency after Kennedy’s assassination, he called upon Fortas for advice on appointments and policies, and occasionally for help in drafting speeches and announcements. It was Fortas who advised Johnson to set up a presidential commission to investigate the JFK assassination. Fortas was a frequent visitor to the White House, and continued to play the role as Johnson’s advisor and fixer even after he took his seat on the Court.
With that appointment secured, Johnson began to look about for ways to create still another vacancy on the Court. He knew whom he wanted to appoint (and it was not Arthur Goldberg): Thurgood Marshall, then his solicitor general, who would become the first black man to win appointment to the Court. But there was as yet no vacancy for Marshall to fill. Johnson soon found one when he appointed Ramsey Clark as his attorney general in early 1967, knowing that Clark’s father was a justice on the Supreme Court. This maneuver in turn caused Justice Tom Clark (who had been appointed in 1948 by President Truman) to resign his seat in order to avoid conflicts of interest with his son who might soon be bringing cases to the Court. Clark’s resignation created the vacancy Johnson used to elevate Marshall to the Court.
Johnson was not yet finished with his Supreme Court maneuvers. In early 1968, due to public pressure and opposition to the war in Vietnam, Johnson announced that he would not seek reelection. When it appeared a few months later that Richard Nixon was likely to win the presidential election, Chief Justice Earl Warren resigned his post in order to prevent his former antagonist in California politics from appointing his successor. Warren’s resignation was unusual in that it would only take effect upon the confirmation of a successor.
Johnson seized on this opportunity to elevate Fortas as Chief Justice to replace Warren, and to appoint Homer Thornberry, an associate from Texas politics, to Fortas’s now vacant seat. This was a bold move, both by Warren and Johnson, with a presidential election looming in a few months. Several senators objected to the appointment for this reason, claiming that Johnson should not be allowed to fill the vacancy in an election year. The opposition was led by a combination of northern Republicans and southern conservatives, who wanted to hold the appointment aside until Nixon took office.
They denounced Fortas’s opinions on obscenity and criminal procedure, and highlighted his continuing close associations with the White House—which Fortas downplayed in testimony before the Senate. It was revealed during the proceedings that Fortas accepted a generous stipend of $15,000 for teaching a course at American University, the funds having been raised by several friends and business associates with potential cases before the Court. The accumulated attacks took their toll: Fortas’s appointment was rebuffed by a filibuster in the Senate, taking Thornberry’s appointment down with it. Johnson, acknowledging defeat, withdrew the appointment at Fortas’s request. Warren sat for another term as Chief Justice, until he stepped down in 1969 when President Nixon replaced him with Warren Burger.
There was a final coda to the Fortas saga. The attacks in 1968 revealed several weaknesses in his record, and provided political opponents with the hope that they might force him off the Court altogether. Then, in May of 1969, Life magazine published a long story detailing Fortas’s association with Louis Wolfson, a former client at Arnold and Porter, and a known financial manipulator who was charged by the Justice Department in 1967 with violating securities laws. Many suspected that Nixon’s Justice Department had leaked the damaging information about Fortas that the author used as the basis for the article.
The article reported that in 1966, while Fortas was a member of the Court, he accepted $20,000 from Wolfson’s private foundation as compensation for providing advice on charitable projects. This was to be a lifetime arrangement, with the funds going to Fortas’s widow in the event of his death. Fortas visited Wolfson for two days at his home in Florida at the same time in 1966 as the SEC was completing its investigations into his stock manipulation. Wolfson may have believed that Fortas might “fix” the SEC investigation, and prevent charges from being filed by the Justice Department. After his conviction, Wolfson thought he might use Fortas’s influence with Johnson to arrange a presidential pardon. He was disappointed in these hopes. Fortas soon returned the funds sent to him by Wolfson, and did not intercede on his behalf with the SEC or the Justice Department, though Wolfson’s lawyer later suggested that Fortas may have spoken to Johnson about a possible pardon.
Life’s article, nevertheless, made it clear that Fortas had continued to act as a Washington operator after he had ascended to the Supreme Court. The article led to renewed calls for his impeachment or resignation. Nixon directed his aottorney general to commence an investigation of Fortas for using his position to assist Wolfson, though no evidence was found to support that suspicion. The Justice Department also looked into claims that Fortas’s wife, Carolyn Agger, herself a prominent attorney in Washington, may have withheld information in an earlier price-fixing case in violation of a subpoena—the investigation itself a move designed to turn up pressure on Fortas. The tactic worked: Fortas announced his resignation days after the article in Life appeared, declaring in doing so that he hoped to spare the Court from further attacks on its reputation.
It appeared at this point that Johnson’s machinations were only partly successful. Justice Marshall, appointed in 1967, served as an influential justice until 1991, when he was replaced by Clarence Thomas. It is likely that, if Johnson had not maneuvered to create that vacancy, Justice Tom Clark might have remained on the Court for several more years until Nixon would have been in position to appoint his successor. Absent Johnson’s maneuver, there might never have been a Justice Thurgood Marshall.
But in regard to Fortas and Warren, his maneuvers backfired in spectacular fashion. Fortas had to resign his post in 1969, while Johnson was unsuccessful in confirming a successor to Chief Justice Warren. These defeats gave Nixon two immediate vacancies which he planned to fill with conservative jurists who might begin to reverse the liberal jurisprudence of the Warren Court.
In this quest, Nixon may have succeeded, but only in part and against great resistance. While he managed to stop the forward motion of the Warren Court, he never managed to create the conservative court of the kind he promised during the 1968 campaign. Nixon did succeed in confirming Warren Burger as the successor to Warren as Chief Justice, but was frustrated in his efforts to confirm a successor to Fortas. Democrats, stung by the reversals in 1968 and 1969, rejected the first two of Nixon’s nominees before they finally agreed (in 1970) to confirm the third—Harry Blackmun, who proceeded to carve out a liberal record on the Court. He is remembered today as the author of the Court’s majority opinion in Roe vs. Wade (1973), the case that legalized abortion across the country. The hostilities that developed between Nixon and congressional Democrats in 1968 and 1969 may have laid the foundations for the Watergate scandal that erupted a few years later.
It may not be possible in this day and age for President Biden (or any president) to take lessons from Johnson and Nixon in regard to forcing a vacancy on the Court or in pressuring a sitting justice to resign his (or her) position. Political conflicts today, especially in regard to the Court, may be too heated for any president to consider such maneuvers.
On the other hand, progressive critics managed to pressure Justice Stephen Breyer to resign earlier this year so that President Biden could appoint his successor. The same critics harangued Justice Ruth Bader Ginsburg to resign several years ago, albeit to no avail. They might try the same approach today, though it is unlikely that they could persuade Justices Kagan or Sotomayor to resign to make room for Vice-President Harris. Both are relatively young (for Supreme Court justices) and still vigorous in their advocacy for progressive positions. It would also be difficult for the President to dangle a new position in front of them (as Johnson did with Goldberg) during what might turn out to be the final year of his presidency.
One ought not to rule out the possibility that Democrats might still try to drive one of the conservative justices off the Court in order to create a new vacancy for Harris, or some other left leaning Democrat who might push the institution in another direction. They have been vocal in their criticisms of the Court, and of Justices Thomas, Alito, and Kavanaugh, in particular. They have significant grievances against all three of those justices. Nixon drove Fortas off the Court via threats of criminal prosecutions from the Justice Department.
Would Biden and his Attorney General try such an aggressive and risky gambit? Perhaps not—on the other hand, they have already indicted Donald Trump and several of his associates on charges of serious crimes. The investigation of a Supreme Court justice would not be a long step beyond what they have already attempted. It would be an unlikely development, and one that might boomerang badly on Biden, his Justice Department, and Democrats in general, just as machinations by Johnson and Nixon led to “blowback” from opponents that afterwards haunted both presidents. Still, in strange times, it sometimes pays to anticipate or expect the unexpected.