Appointing a New Justice to the Supreme Court: Insights from 1968's Experience

The unexpected death of Associate Justice Antonin Scalia has created a vacancy on the United States Supreme Court, leaving a significant void in the court's conservative bloc. This event presents a political dilemma for President Obama and Congress, particularly in light of the upcoming presidential election in November.

In a similar scenario, in 1968, President Lyndon Johnson promptly nominated Abe Fortas as chief justice to fill a Supreme Court vacancy. However, Fortas' nomination was met with opposition, and the Republicans blocked his appointment due to perceived political maneuvering. The round of contentious confirmation hearings for Fortas made matters worse for Johnson, and his nomination was eventually withdrawn.

The movement of conservative white Southerners into the Republican Party since 1968 has given them an outright majority in the Senate. This shift in political power has made it more challenging for a president to push through a nominee to whom the Republicans object. In fact, the GOP leadership in the Senate announced they would not consider any nomination until after the presidential election in 2016.

If President Obama wants a nominee confirmed before the November election, he should choose someone acceptable to a majority of Senate Republicans. This strategy would help avoid a repeat of the Fortas fiasco, a lesson learned from the 1968 nomination debacle. The Fortas nomination taught the importance of nominating a candidate who is broadly acceptable to both parties, to avoid a complete fiasco.

The Republicans are in a better position to block a nominee to whom they object than they were in 1968. This is due in part to the conservative shift in the Senate and their ability to block many of President Obama's nominees after obtaining a Senate majority in 2014.

In a bid to avoid a similar fate, President Obama could nominate a moderate and broadly acceptable judge. Such a nominee would have a realistic chance of Senate confirmation, given that confirmation requires majority approval.

Chief Justice Earl Warren's decision to retire in 1968, denying a potential nominee appointed by President Nixon, is another lesson from the past. Warren's motives for retiring included personal and political reasons, as well as concerns about Nixon's stance on the Supreme Court and criminal justice.

The vacancy created by Scalia's death is causing a dilemma for the president and Congress. The president must navigate the political landscape carefully to ensure a fair and timely appointment to the Supreme Court. The lessons from the past, such as the Fortas fiasco and Warren's retirement, provide valuable insights into how to approach this delicate situation.

In conclusion, the death of Associate Justice Scalia has created a significant political dilemma for President Obama and Congress. To avoid a repeat of the Fortas fiasco, President Obama should nominate a moderate and broadly acceptable judge with a centrist and uncontroversial record as a judge, such as a nominee from the U.S. Courts of Appeals or a state Supreme Court. Only then can a fair and timely appointment be made to the Supreme Court.