Waiting for a Court Vacancy

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A SCOTUS vacancy will no doubt produce the same kind of fight that greeted the Robert Bork nomination in 1987. hide caption

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Arthur Goldberg's resume was not enough to defeat New York Gov. Nelson Rockefeller in 1970. hide caption

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Thirty-four years ago today, Alaska Sen. Gravel begins reading the Pentagon Papers aloud in the Senate. hide caption

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Q: Are you surprised that Chief Justice William Rehnquist didn't announce his retirement? I thought his leaving was a no-brainer. — Arthur Taylor, Nyack, N.Y.

A: Media conjecture aside, there was no guarantee that Rehnquist — if he were to call it quits — would do so on the last day of the court's term. Or on the day after. Certainly, everyone was bracing for an announcement, and certainly the e-mail blasters and bloggers on the left and the right were ready to strike. I still expect Rehnquist, who is suffering from thyroid cancer, to retire in the very near future.

It is true that when justices leave voluntarily, more often than not they do so at the conclusion of the court's term. The last justice to retire, Harry Blackmun, was even more accommodating: His announcement came in April of 1994, to be effective at the end of the term in late June. That gave the Clinton administration plenty of time to weigh potential successors.

The situation was different when William O. Douglas left the court. He suffered a debilitating stroke on New Year's Eve, 1974, but refused to step aside — despite the urgings of many of his colleagues. He finally resigned on Nov. 12, 1975.

Speaking of Blackmun, his retirement was the last time there was a vacancy on the court — and that was 11 years ago. The longest previous period of constancy was the 12-year period between 1811-1823, in which no justice retired or died.

Q: In reading about a possible vacancy on the Supreme Court, I came across something called the "Jewish seat." What in the world is that? — Norman Brooks, Trenton, N.J.

A: It's not officially called that, of course. But after Associate Justice Benjamin Cardozo died in 1938, Felix Frankfurter succeeded him on the court. And when Frankfurter retired in 1962, President Kennedy named another Jew, Arthur Goldberg, to succeed him. That's when the term "Jewish seat" began to be widely used.

The tradition continued when Abe Fortas succeeded Goldberg in 1965.

The first Jew named to the court was Louis Brandeis, who was nominated by President Wilson in 1916. His nomination was met with angry debate, much of it blamed on anti-Semitism. Emotions ran so high that when Brandeis joined the court, another associate justice, James McReynolds, refused to sit next to him when the court had its official photo taken. While still on the court, Brandeis was joined by another Jew, Cardozo, who was named by President Hoover in 1932. Compared to the outcry over Brandeis' nomination, however, the reaction to Cardozo was muted; unlike the Senate vote on Brandeis, when 22 senators voted no, Cardozo was approved by voice vote. It was Cardozo who essentially began the streak that became known as the "Jewish seat."

Cardozo's death in 1938 led to Frankfurter, who left the court in 1962 following a stroke and was succeeded by Goldberg. Following the death of United Nations ambassador Adlai Stevenson in 1965, President Johnson convinced Goldberg to leave the court for the U.N. One reason for LBJ's maneuvering was to get his longtime ally/crony (take your pick), Abe Fortas (who also happened to be Jewish) on the court.

Goldberg may have been bamboozled into leaving the court — and that in itself is a fascinating story — but for Fortas the turmoil was worse. Johnson tried to elevate him to chief justice in 1968 after Earl Warren announced he wanted to step down. A filibuster led by Republicans and Southern Democrats forced Johnson to withdraw Fortas' name that year, though he did stay on the court. Then, a year later, Life magazine reported that Fortas took (though later returned) money from a foundation controlled by the family of Louis Wolfson, an indicted stock manipulator. The resulting uproar forced Fortas to quit the court in May of 1969, although he denied any wrongdoing.

In seeking a nominee to succeed Fortas, President Nixon had no desire to continue the "Jewish seat" tradition. After the Senate rejected his first two choices (Clement Haynsworth and G. Harrold Carswell), Nixon settled on Harry Blackmun, a Methodist and long-time friend of Chief Justice Warren Burger. That ended the decades-long tradition of having a Jew on the court. It lasted until President Clinton named Ruth Bader Ginsburg to the court in 1993 and Stephen Breyer the following year; both still serve.

Q: Thanks for your June 23rd column on who might succeed Chief Justice Rehnquist. I was especially glad that you didn't make the common mistake concerning his title — it's Chief Justice of the United States, not Chief Justice of the Supreme Court. This is largely due to the efforts of Salmon Chase, an Ohioan who was appointed chief justice by President Lincoln in 1864. Chase was somewhat egotistical and wanted a grander title than it had originally been. Congress went along with the change, and later chief justices have all borne the modified title. On the Supreme Court, the chief justice is primus inter pares ["first among equals"], but he is not the boss. — William Vodrey, Cleveland, Ohio

Q: I enjoyed your historical tidbit about the censure of Connecticut Sen. Tom Dodd [see June 23rd column]. It is interesting to note that Sen. John Tower was one of the few senators to vote against the censure — and that, more than two decades later, Sen. Christopher Dodd returned the favor, as one of the few Democratic senators who supported the ill-fated nomination of Tower as Secretary of Defense in 1989. — Bill Stephens, Tacoma, Wash.

A: From the moment Tower was named by the first President Bush to be Defense Secretary, Sen. Chris Dodd insisted that Tower's support for his father during the '67 censure battle would not affect how he planned to vote on the Tower nomination. And even when Chris Dodd ultimately decided to vote for Tower's nomination, he said it was about fairness, not a political debt from decades past. "I owe John Tower the same fairness and careful judgment he used 22 years ago," Chris Dodd said in explaining how he would vote in 1989. But he added, "Of course, I haven't forgotten how John Tower voted. What kind of son would I be if I did?"

Q: I am a Canadian living in California and was told that Gerald Ford was not the first nonelected president. Ford, of course, became president because Richard Nixon chose him to replace Spiro Agnew as vice president after Agnew resigned, and then Ford became president after Nixon resigned. If Ford was not the first nonelected president, then who was, and under what circumstances did he become president? — Brian Elliot, Sacramento, Calif.

A: Gerald Ford is the only person to serve as president AND vice president without being elected to either post. But he was certainly not the first nonelected president. That would be John Tyler, who succeeded to the presidency on April 4, 1841, following the death of President William Henry Harrison. Other presidents who served but were never elected: Millard Fillmore, Andrew Johnson and Chester A. Arthur.

Q: I noticed that you haven't mentioned your obsession with the New York Yankees this year. Is it because your $200 million team is old and pathetic and falling apart? — Robert Sawyer, Boston, Mass.

A: As I wrote in last week's column, I feel this column is not the appropriate vehicle to be talking about CPB chairman Ken Tomlinson and his political agenda.

Fried Rice: Sally Smith of Ashburn, Va., took issue with an item in my June 16th column, which talked about potential Southern candidates for president in 2008. I included Secretary of State Condoleezza Rice, who was born in Alabama and who often talks about what it was like to grow up in segregated Birmingham. "C'mon, Ken," she writes. "Rice is no more an Alabamian than Newt Gingrich is a Pennsylvanian [Newton Leroy McPherson, born 6/17/43 in Harrisburg, PA]. I recall that in 1990, when Sen. Pete Wilson was elected governor of California, he seriously considered appointing Rice to fill his vacant Senate seat. To the extent that Rice has political ties anywhere, they are strongest in California."

This Day In Political History: Sen. Mike Gravel, an Alaska Democrat, begins reading large portions of a secret Defense Department document that chronicles U.S. involvement in Vietnam. The documents, first released to the media by former Pentagon aide Daniel Ellsberg, become known as the "Pentagon Papers" (June 29, 1971).

Got a question? Ask Ken Rudin: politicaljunkie@npr.org.



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