Lyndon B. Johnson judicial appointment controversies
Encyclopedia
During President Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...

's presidency, federal judicial appointments played a central role. Johnson appointed two individuals to the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 in just over five years as president.

In 1965, Johnson nominated his friend, high-profile Washington, D.C. lawyer Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...

, to the Supreme Court, and he was confirmed by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

. In 1967, Johnson nominated United States Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...

 Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

 to the Supreme Court, and he also was confirmed by the Senate. In 1968, however, Johnson made two failed nominations to the Supreme Court. He nominated Fortas to become Chief Justice of the Supreme Court
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

 to replace the retiring Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

, and he nominated United States Court of Appeals for the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...

 judge Homer Thornberry
Homer Thornberry
William Homer Thornberry was a United States Representative from the 10th congressional district of Texas from 1948 to 1963, and then was a federal judge.-Biography:...

 to replace Fortas as Associate Justice. However, Johnson wound up withdrawing Fortas' nomination after his confirmation was filibustered by Sen. Robert Griffin (R-MI), and he was not able to make another Chief Justice nomination before his presidency ended. As a result, Warren continued as Chief Justice and Fortas as an Associate Justice, so Johnson also ended up withdrawing Thornberry's nomination. Ultimately, Johnson's successor, President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

, appointed Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...

 as Chief Justice of the United States
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

. After Fortas resigned from the Supreme Court, Nixon appointed Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...

 to fill Fortas' seat after his previous nominations of Clement Haynsworth
Clement Haynsworth
Clement Furman Haynsworth, Jr. was a United States judge and an unsuccessful nominee for the United States Supreme Court....

 and G. Harrold Carswell to that seat both were rejected by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

.

At the appellate level, Johnson formally nominated one person, Barefoot Sanders, for a federal appellate judgeship
United States federal judge
In the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....

 who was never confirmed. The United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 did not act on Sanders' nomination before Johnson's presidency ended, and Nixon did not renominate him. Johnson also considered other appeals court nominees whom he never wound up nominating.

List of failed appellate nominees

  • United States Court of Appeals for the District of Columbia Circuit
    United States Court of Appeals for the District of Columbia Circuit
    The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...

    • Seat - Barefoot Sanders (judgeship later filled by Nixon nominee George MacKinnon
      George MacKinnon
      George Edward MacKinnon was appointed by President Nixon to the United States Court of Appeals for the District of Columbia in May 1969, where he served until his death in 1995. Judge MacKinnon is also the father of feminist legal scholar Catharine MacKinnon.According to Judge Harry T...

      ) (Sanders later was appointed by President Jimmy Carter
      Jimmy Carter
      James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...

       to the United States District Court for the Northern District of Texas
      United States District Court for the Northern District of Texas
      The United States District Court for the Northern District of Texas is a United States district court. Its first judge, Andrew Phelps McCormick, was appointed to the court on April 10, 1879. The court convenes in Dallas, Texas with divisions in Fort Worth, Amarillo, Abilene, Lubbock, San Angelo...

      )


In addition to Sanders, three Johnson nominees to district judgeships were not voted on by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 before Johnson's presidency ended: David Bress to the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...

; Cecil F. Poole
Cecil F. Poole
Cecil F. Poole was a prominent African American lawyer and federal judge. Poole was born in Birmingham, Alabama and raised in Pittsburgh, Pennsylvania....

 to the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...

; and William Byrne to the United States District Court for the Central District of California
United States District Court for the Central District of California
The United States District Court for the Central District of California serves over 18 million people in southern and central California, making it the largest federal judicial district by population...

. Johnson had nominated Sanders, Poole, Bress and Byrne during the 90th United States Congress
90th United States Congress
The Ninetieth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1967 to January 3, 1969, during the last two years of...

, and he renominated the four in the 91st United States Congress
91st United States Congress
The Ninety-first United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1969 to January 3, 1971, during the first two years...

, right before his presidency ended. However, three days after taking office, Nixon withdrew all four nominations. Nixon later wound up renominating Byrne to the same court in 1971, with Byrne quickly winning Senate confirmation. Poole was renominated by President Gerald Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...

 to a seat on the same court in 1976, and was quickly confirmed by the Senate.

In Nixon's first news conference after his inauguration, he explained his decision to withdraw the four nominations:

Others who were considered for nomination

In 1964, Johnson considered nominating either noted civil rights lawyer Bernard Segal
Bernard Segal
Bernard G. Segal was an American lawyer known for his advocacy of the poor and his work in the Civil Rights Movement....

 or William Thaddeus Coleman, Jr.
William Thaddeus Coleman, Jr.
William Thaddeus Coleman, Jr. was the fourth United States Secretary of Transportation, from March 7, 1975 to January 20, 1977, and the second African American to serve in the Cabinet...

 to fill a vacancy on the United States Court of Appeals for the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...

 that had been created by the death of Herbert Funk Goodrich
Herbert Funk Goodrich
Herbert Funk Goodrich was a judge on the United States Court of Appeals for the Third Circuit...

. Johnson personally approached Coleman regarding the nomination, but Coleman declined the offer. Johnson ultimately wound up nominating Abraham Lincoln Freedman
Abraham Lincoln Freedman
Abraham Lincoln Freedman was a United States federal judge.-Biography:Born in Trenton, New Jersey, Freedman received an LL.B. from Temple University School of Law in 1926, immediately entering private practice in Philadelphia, Pennsylvania. While in private practice...

 to the seat, and he was confirmed quickly by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

.

In 1968, Johnson had wanted to nominate liberal Republican Sen. Thomas Kuchel
Thomas Kuchel
Thomas Henry Kuchel was a moderate Republican U.S. Senator from California. From 1959 to 1969 he was the minority whip in the Senate, where he was the co-manager on the floor for the Civil Rights Act of 1964 and the Voting Rights Act of 1965.-Biography:Kuchel was born in Anaheim in Orange County,...

 to a newly created seat on the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

 after he lost re-election in his party's primary that year. However, because the judgeship was created while Kuchel was in the Senate, Kuchel was constitutionally barred from being appointed to that seat during the final months of his Senate term (and the final months of Johnson's presidency).

See also

  • United States federal judge
    United States federal judge
    In the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....

  • Federal judicial appointment history
    Federal judicial appointment history
    The appointment of federal judges has become viewed as a political process in the last several decades. This is especially true of U.S. Supreme Court and court of appeals appointments...

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