edited 11/24 to correct an error
Every president, during the last year or so of his term of office, tries to leave his mark on the Supreme Court if opportunity presents. Bush II was certainly provided with ample opportunity and in Alito and Roberts, he picked someone of strong ideological bent. The confirmation battle becomes in such circumstances becomes prolonged and vicious. The aspirant fails in his nomination bid and retires bitterly to the lecture circuit. Such is the story of both Bork and Abe Fortas, Lyndon Johnson’s controversial nominee for Chief Justice (who, ironically, was already serving on the court as an associate justice.) The battle, even more bitter than the one over Bork, is detailed in fascinating detail by Bruce Allen Murphy
Although questions about his integrity played a part in his downfall (he eventually withdrew his nomination and retired from the court,) Murphy argues persuasively that as in Bork’s case the rejection was primarily ideological. The struggle over Fortas raised the acceptable political temperature well beyond the norm, paving the way for fierce debates over Nixon appointees. (Thank goodness, or we might have had that great proponent of mediocrity G. Harold Carswell trying to figure out which way to hold a book, while sitting on the bench.) By the time of the Bork nomination all restraint was gone. Ironically Fortas was an unlikely candidate for an ideological firestorm. Inside and out of government he was the deal maker not the ideologue: the kind of man that friends like Lyndon Johnson turned to when they wanted to get things done. According to Murphy, this was precisely his undoing. Like Bork, Fortas became a symbol of an embattled white House who was eventually sacrificed in a struggle over the President's beliefs. The ultimate question is whether it serves the Republic by breaking with tradition and answering questions about how a nominee vote on a given issue, thus making a mockery of the idea that judges are independent of Congress and the executive. Presidents will come under increasing pressure to pick candidates who adhere to their own beliefs. What Murphy failed to predict was rather than increasingly bitter battles, the result was the bland non-answer hearings that have become the standard as defined by Roberts.