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tv   Lectures in History Johnson Nixon Supreme Court Nominations  CSPAN  October 11, 2020 1:07pm-2:26pm EDT

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announcer: next, brooklyn college professor casey johnson teaches a class on presidents lyndon johnson then richard nixon's supreme court nominations. he describes johnson's plan to fill the bench with justices and the difficulties he came getting them confirmed. senatorses pushed from and concludes with background on some of nixon's nominations to the court. >> today we are going to be looking at the development of controversial supreme court nominations in the late 1960's and early 1970's. we are going to look at the warren court, this increasing surge of controversial decisions from the court with two basic principles. remember the idea of counter majoritarianism. the idea that it was the job of the supreme court to stand up on behalf of people who may not have majority support, whether it was atheist or civil rights activists are criminal defendants throughout the 1960's. and second was the emergence of
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this philosophy that some historians have called right related liberalism. the idea that liberalism was primarily devoted to the protection of individual rights. as a result, the supreme court became an important mechanism for this. one problem, which is that if you are going to govern, you have to be able to appoint supreme court justices. this becomes an increasingly fraught prospect for liberals. so the backdrop. lbj. after 1964 with the civil rights act, 1965 with the voting rights act, he has a sense that the supreme court will be significant. unlike with kennedy, there are no openings on the court. johnson essentially creates one. the first one comes in 1965. it is a custom which dates back to the wilson administration.
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there was one jewish member on the court. the jewish member on the court in the early 1960's was arthur goldberg. he had been appointed by jfk. johnson however wants to appoint this man, his longtime lawyer and fairly close personal friend and advisor, abe fortas. who was jewish. he goes to goldberg and says look, it is important, we have a problem in vietnam. it can only be handled at the united nations. you are the best negotiator i know. for the good of the country you need to resign from the supreme court, accept a job as a u.n. ambassador. goes offbelieves that, to the u.n. and is basically ignored by johnson for two years. fortas continues to advise johnson behind the scenes on important policy issues. he helped to draft johnson's speeches. imagine in the current environment of john roberts regularly consulted on trump's speeches.
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it would be seen as improper and it would cause problems for johnson down the road. then second, in 1967, thurgood marshall who we have seen previously as the naacp chief counsel. who johnson appointed to the circuit court in new york, johnson sees an opportunity to name the first african-american to the court. but there is no vacancy. there is however a vacancy to the position of attorney general. johnson looks far and wide in the country and decides that ramsey clark would make the world's top attorney general. there is one small problem, his father is on the supreme court. johnson goes to ramsey clark and says i would love to appoint you as attorney general but i cannot do it with your father on the supreme court. if your father is willing to resign as a supreme court justice, i could appoint you as attorney general. the father resigns and johnson gets another vacancy.
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and marshall moves on to the court. johnson assumes he will run for reelection in 1968, he will be reelected in 1968, there are three very elderly members of the court, including two justices who are not in good health in the late 1960's. so he is working under the assumption he will be able to appoint four or five justices by the time he leaves office. instead, we all know the history. johnson's support begins to weaken and in march of 1968, he announces he will not run for reelection. by the summer of 1968, it seems pretty clear that the democrats will have a tough time winning the election. this means johnson's successor will likely nominate the replacement for the chief justice.
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and so warren, in june of 1968 decides to preempt this possibility. he makes an announcement that he will retire as chief justice of the supreme court upon the confirmation of his replacement. what warren is telling conservative senators, you have a choice, you can confirm whoever lbj nominates or i will be there as the chief justice continuing to issue these liberal opinions. the expectation is most members of the senate will more or less go along with that. even if they don't like the idea of johnson naming a replacement. there is one other thing that is in the back of the minds of both warren and johnson. johnson is arguably the most gifted president in american history and if not the most gifted -- the second or third most gifted with understanding how congress operated. he had a sense of what he could get through congress. as johnson nominates a replacement, he is thinking of this chart.
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these are all supreme court nominations in the last two political generations. dating back to 1937. all the nominations from fdr, truman, eisenhower, kennedy, and johnson. take a look at this middle column here. most of these nominations are confirmed with the letter v. that means there is a voice vote. the senate does not even bother to hold a roll call. it automatically confirms the justice. almost all of the others are overwhelmingly confirmed by the senate. by the late 1960's, there has become this expectation that yes in the constitution it says the president nominates the supreme court justice and has to confirm the selection. but in the real world, whoever the president nominates will get confirmed and this is what johnson assumes will happen in 1968 as well.
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in june of 1968, the assumption is johnson has out fought his opponents again. he will get a liberal chief justice on the supreme court who will serve throughout the 1970's and ensure the supreme court will remain liberal. there is another chart that johnson might have wanted to examine but did not. that is the chart of his declining public support. the chart here on the left is johnson's approval as measured by gallup. he goes up and down a little but there is a pattern. it goes from quite high in the -- in 1963, 1964. by early 1968 his approval rating is hovering around 35%. for comparison sake, that is seven or eight points below what trump's approval rating currently is. it is a very low approval rating for lbj. along with the fact that he is not terribly popular, he is not running for reelection.
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the last time there had been a supreme court justice confirmed by the senate who had been nominated by a president who had announced he was not running for reelection was 1893. that was a long time ago. this charming looking man. howell jackson, who was a grover cleveland nominee. served for a couple of years and got ill and died in the 1890's. from this standpoint, there is a good precedent for johnson. any president who is nominated gets confirmed. with this precedent, johnson may have some problems here. he is not a popular president, the senate did not have much of a precedent in terms of confirming late nominees. johnson is looking at one other vote. he fails to anticipate where the
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key opposition will come from in 1968. this is the chart johnson is looking at as he is making his selection. this is the roll call vote for thurgood marshall's confirmation in 1967. you will notice this is not a unanimous vote like many of the others in the 1930's, 1940's, and 1950's. there are 11 senators who voted against thurgood marshall's confirmation. the 11 are up top on the chart. if you squint closely you can pretty much identify where these people are coming from. they are all from the south. 10 of them are democrats. this is a peerriod, and the 11th -- a period where the 11th is a former democrat who is at this point a republican senator from south carolina. in johnson's mind as he is thinking of who will be a good replacement for warren, what he is saying is the people i need to preempt is a southern opposition.
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if i can come up with a nominee who can appeal to the southerners, the nominees will go through without any problem. johnson makes this a little too complicated. he concludes that he does not want to name a new replacement. instead, what he wants to do is elevate his friend. justice fortas. so he wants to come up with a replacement for abe fortas as associate justice. >> he will have to make two nominations, rather than one. he goes through a number of lists. the name he is most interested in looking at is homer thornberry. here is a photograph of johnson with thornberry. he knows thornberry very well. thornberry had succeeded him in the house of representatives. johnson had been appointed thornberry to the fifth circuit based in new orleans.
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the appellate court judge nominated by johnson, he is a former congressman. he is very friendly with southern politicians. he is particularly friendly with richard russell, the most powerful of the southern democrats. johnson senses thornberry is somebody who will appease these southerners. who didn't like thurgood marshall and he will ensure that fortas will be confirmed. now, before johnson announces thornberry, he gets on the phone with several key figures. to sort of fill them out on what they were thinking. generally, when it johnson would -- one johnson would call you, this -- generally, when johnson would call you, this was not a two way conversation. johnson was not soliciting information. he was basically encouraging you to think as he did. his first call goes to justice fortas. he wants to get feedback for who would be a good replacement for fortas as associate justice.
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johnson has already made up his mind and his job is to basically say yes. [video clip] thornberry has disadvantages. in fact, he was congress, city councilman, state legislator. i think it would be awfully good on the court. and knowing every department of this government. from the standpoint of the liberal press, they will not give me a fair trial. hello, i would be nominated on my record for several liberties sense of rights. but the times on the post are against me. because are anti-semitic. they are anti-south. it is because i live in texas. i don't have style. that is the only thing they have against me. i have adopted their platform. i know you've got to go. i've got to get some more -- how will you rate these people one through five?
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from the standpoint of my practical problem and what i may want to do on all the other things. i've got geography, i've got the senate, i have to have sure votes. i look at this not from your standpoint, look at this from my standpoint. you know me and what i want. i want somebody i will always be proud of his vote. that's the first thing. then i will be proud of his opinion. i want to be proud of the side he was on. i want to be sure he votes right. that is the first thing. prof. johnson: these are private conversations. fortas is not aware he is being recorded. johnson does know that he is being recorded. he is perfectly candid here about what he wants. if you get a brilliant justice, that would be great. but the chief goal here is to
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get someone who will vote the way johnson wants. one suspects that every conversation had a similar line, i am sure it did with trump's nominations as well. there is an obvious win here. johnson's goal is to ensure a liberal majority on the court. he thinks he can do that with fortas and thornberry. then johnson reaches out to key senators. he understood how the senate operated in the 1950's exceptionally well. his problem will be the senate in the 1960's operated quite differently. johnson in the 50's believed he could filter through key senate leaders. he reaches out to richard russell, a democratic senator from georgia. a segregationist, but the most prestigious of the southern democrats. russell likes thornberry a lot. he doesn't particularly like fortas.
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but he says he will be willing to go along with the nomination because that will get thornberry onto the court. johnson reaches out to the minority leader. head of the senate republicans, everett dirksen. a republican senator from illinois. he and johnson had worked closely on the civil rights act. on the voting rights act. he was a supporter of african-american civil rights. he knows fortas and likes him. he also knows and likes thornberry. dirksen commits to supporting him. johnson also reaches out to mike mansfield, the majority leader of the senate, representing some liberal moderate democrats. he isn't thrilled about fortas's nominee but will go along. in late june of 1968 it looks as if this is a done deal. fortas has been nominated, thornberry is the associate. the three most powerful members of the senate johnson believes are already on board is willing
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to support the confirmations and this is a done deal. johnson's problem is that he essentially lost a decent amount of power. he hasn't conceptualized that and he will learn it very quickly in the summer of 1968. two things happen almost immediately. the first, 19 republican senators signed on to a public statement prepared by this man, robert griffin, a republican senator from michigan. it comes to be known as the round robin. it articulates the view that will reappear in american life in 2016. it is potentially the same argument mitch mcconnell makes against the garland nomination. which is look, we have a vacancy for the supreme court, a presidential election going on, we will withhold our support from any nominee on the grounds that the new president should be able to make this choice.
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>> [indiscernible] prof. johnson: johnson at this point had been elected in 1964. griffin has seen the polls. by june of 1968, nixon has assumed a fairly healthy lead over hubert humphrey. griffin is saying he is confident nixon will win. he basically says i want a republican to make the nomination rather than a democrat. if the polls were flipped. let's say we are in an alternative world and hubert humphrey were somehow ahead by 15 points in the polls. i suspect griffin would have said let's go along with this. he gets a significant chunk of senate republicans. 19 senators who were signing on to this statement. remember, we have 11 senators. 10 of whom are democrats. on paper, we have almost 30
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senators who seem to be skeptical about a possible johnson nomination. the johnson white house staff does not detect this. just at the time as the griffin round robin is coming out. johnson's liaison team in the white house that basically counts votes in congress prepared these documents for lbj. they say this is a shoe in. we have roughly 70% of the support in the senate. we have a handful of opponents but you don't need to worry. fortas is going to get confirmed. on paper, from the president's standpoint, this nomination seems to have gone very well. in reality there are big problems emerging that they do not seem to be detecting. johnson privately in late june
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and early july of 1968 is telling his aides that griffin is bluffing. yes, there are 19 republicans who have signed this letter, but in reality all of them will not vote against fortas and thornberry. they will back down when the nominees get to the floor. this is not what happens. johnson does not quite understand. then there is a second problem. dating back to louis brandeis, supreme court nominees have gone before the judiciary committee. it had been a fairly normall practice where supreme court nominees testified before the committee and then asked their opinions on constitutional issues and offer feedback. these tended to be quite routine. nothing like we saw the last few weeks. nothing like we have seen before.
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nothing like where there would be a television spectacle. you have to go through the motions. the problem for johnson is that the judiciary committee in 1968 is probably the single most hostile committee to the president and liberal philosophy that exists. think back a few weeks ago to the brett kavanaugh hearings. we basically have 19 member committee. 10 very conservative republicans, nine fairly liberal democrats. it is an ideologically split committee. that is not the case in 1968. the chairman of the committee is this man, jim eastland, a democratic senator from mississippi. he voted against thurgood marshall's confirmation and voted against the civil rights act. voted against the voting rights act.
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the second ranking democrat on the committee, john mcclellan, democratic senator from arkansas had been absent from the marshall confirmation but had made clear he opposed marshall. voted against the voting rights act and voted against the civil rights act. sam ervin, who we will encounter again in this class, democratic senator from north carolina voted against the marshall confirmation, voted against the voting rights act, and voted against the civil rights act. these are the three most senior democrats on the judiciary committee. these are senators who today would be among the most conservative members of the senate. they are bitter critics of the warren court and the decisions. essentially, what they decide
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amongst themselves, the chair of the committee controls how the process operates. the key person in the cavanaugh hearings was chuck grassley. the republican chairman who presided over the hearings. what these three decide as they will use this opportunity to put the warren court on trial. to basically bring abe fortas before their committee and grill him on the variety of the warren court's decisions. instead of a routine hearing, what he gets is questions about specific decisions, he doesn't give consistent answers. sometimes he says he will defend the decisions and sometimes says he cannot talk about them because he cannot talk about how the court may decisions. the committee also starts asking questions about fortas's'advice
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to johnson. it is highly improper. a supreme court justice should not be providing political advice to a sitting president. everyone knew fortas was doing he says he cannot give this advice because that would be an improper intrusion into the court's freedom of action. the conservative democrats say three, that does not make any sense. you are willing to talk to the president that you are not willing to talk to the senate? and fortas -- this is always a problem with fortas and lbj. like a lawyer. he tended to give these very specific, legalistic answers that tended to sound very defensive. he was not a particularly good witness. but the star of the hearing is not any of the democrats. the star of the hearing is this man, strom thurmond.
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republican senator from south carolina. former democrat. had flipped to the republicans in 1964. thurmond was a demagogue. he understood how to prosper in politics. he was a sharp opponent of civil rights. in the thurmond's mind, the questions that were coming fortas and mcclellan work too -- were too legalistic. they weren't, he feared, they weren't going to attract the attention of the public. make them oppose fortas. he goes over fortas's judicial record. which is not particularly robust. fortas had only been on the court for three years. what thurmond noticed was he had frequently been in 5-4 majorities. on paper, the decisive vote. on a series of decisions that the warren court made over pornography issues. where the court had struck down state laws restricting the
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sale or dissemination of pornography. sensed this might be -- someone who was outside of the ideological mainstream. he welcomes as a witness and member of the minority, they get to invite a handful of witnesses. this man, james clancy. who is head of citizens for decent literature, an anti-pornography literature. clancy describes in quite robust detail, the plot lines of various films and books that fortas's decisions upheld as non-obscene. and this line of attack, that fortas is a pro pornography justice, starts to resonate.
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a lot of conservative members of the senate begin to distance themselves. both russell and dirksen retreat a bit. russell comes out against fortas. dirksen says he might support fortas, he might not. johnson is trying to figure out what is going on. the problem here is he does not have any close allies on the judiciary committee. he finally turns to this man, george smathers, a democratic senator from florida. a low-ranking member of the judiciary committee but a close personal friend of jfk and lbj. he is trying to get a sense from smathers, why is this committee process taking so long? what smathers tells him is that these senators are very interested in the pornographic films, and indeed he suggests they frequently want extra time to view these films in person to
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determine their level of pornography. and, as we will see, he is telling johnson that eastland is using procedures to delay things. of course, if it is delayed after the election it looks as have nos is going to chance -- little chance of nomination. two contextual items, johnson references this film called the graduate. dustin hoffman is the star. it is seen as a very racy film in the context of 1968. hoffman is seduced by the mother of one of his friends. and smathers is going to be talking about his own views for pornography here. smathers had a reputation for a very active social life. but that is not the betrayal that smathers gives of himself in this conversation.
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>> [indiscernible] my other reaction is, i'm not going to see the movie. i don't look at anything like that, pornographic. that's a bad choice. i choose not to look at it. others choose to look at it. maythe court says that he can. i don't look at it. i have not seen it. i'm not going to pass judgment
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on whether or not this the kind of thing -- this is the kind of thing that should be going around or it shouldn't. ranting and raving about this kind of thing. he wanted a long time to look into this. he's going to look into this more deeply. >> the graduate? >> that's right. we are due to vote on it next wednesday. >> can you just do that? ofwell, with the cooperation east end, i don't know how you were going to adopt it. prof. johnson: what smathers is referring to is a rule of the judiciary committee that allows any member of the committee to delay the vote by one week. if you are dealing with a president that is running out of time in office, these repeated delays are going to cause significant problems.
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the pornography argument resonates with the public. the fortas confirmation is the first supreme court confirmation in american history that all of us would be somewhat familiar with. that is, that the public is engaged with the confirmation. they are reaching out to members of the senate. the letters that senators are getting -- this is the -- the letterse senators are getting are overwhelmingly opposed. these are a couple of photos sent to a democratic senator from north dakota. he was one of fortas's strongest defenders in the senate. these are lines from these average north dakota ends, who are concerned about what they are hearing on fortas and they are saying he is making too many compromises with the issue of pornography and that you can't compromise with the devil. and that this is sort of problematic. let's say you are an undecided senator.
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you are getting all of these letters opposing fortas. johnson is not going to be around next year to protect you. there is going to be a new president. you might be coming up for the election in 1970. if you don't have strong opinions you might be inclined to say look, i'm going to vote no and avoid the problem. fortas' support starts to erode quite significantly. johnson is furious. he gets on the phone with ramsey clark and starts complaining that the problem here is that griffin and thurmond and the senate republicans had been spreading too many unfounded rumors about fortas. so, it is time for the democrats to start spreading unfounded rumors about griffin to even the score. again, as we see, clark does not get a word in edge wise. >> he's having a big press conference this morning.
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they make 40 allegations and we get tried and convicted every day, our side does. >> hit somebody can write some mean speeches allege things they've got to deny. that's what you've got to do. you've got to employ their resources and talents doing research instead of attacking you. we've got to keep them busy. i would find some reason that griffin's is in this thing. griffin set a week before the appointment that he was against anybody. he was not worried about pornography. anybody look at his face and can tell that does not bother him. [laughter] pornography. he was worried that, by god, he could not make a partisan deal out of the chief justice. and the republican chief justice and playelayed it politics with it until he could get in. that is what he said. said it days before we even
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decided the name for it. somebody ought to point that out. prof. johnson: this is desperation. when your tactic for getting your nominee supported is uncorroborated things about republicans, you are probably going to lose. griffin delivers the final nail in the coffin for fortas in the early fall of 1968. griffin, he was a quite talented senator. he made it clear he had heard rumors of him being unethical. if people had information, he says, my office. what he finds out is that fortas had been given a substantial cash bonus. a not0, which in 1968 is insignificant amount of money, to teach a very short seminar at american university law school. in d.c. university is
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this money had not come from american university. instead, it had come from a handful of private donors who were friends of fortas. this sounds uncomfortably close to being a bribe. these people are paying fortas to do a token amount of work. the dean of american university law school says that $15,000 sounds like a lot of money, but fortas was doing more than teaching a class. he had to prepare a syllabus. as we know, preparing a syllabus is very extensive work. this is not a credible allegation. the committee invites fortas to come back before it and explain what exactly he did for this $15,000. fortas says nope and at that point the southern democrats and the republicans announce they will filibuster the nomination. they will not allow it to come to a vote. it can only be breached if two thirds of the members of the senate vote to end debate.
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it is clear that is not going to happen. october 1, the senate votes. fortas by this point is reduced to hoping for the symbolic victory. he is hoping a majority of the senate will vote to impose aoture and he can say majority of the senate wanted me on the supreme court, and these conservatives blocked me. instead the final vote is 45-43. 50 two -- two to impose cloture. at that point the nomination is dead. this is october of 1968. johnson is still in office for a few months. he does not quite give up but this amounted to his last chance. fortas withdraws the next day after spending 24 hours hoping he might find a way to revive himself. so warren is still on the court but has made clear he does not really want to stay on the
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court. now, as all of this is occurring, we have a presidential election going on in the presidential election in which the supreme court has emerged as a major issue for both of the challengers. george wallace -- encountered before -- civil rights opponent, governor of alabama. he runs as a candidate of the america independent party. strong opponent of civil rights. he argues the warren court has exulted the power of african-americans -- of course, he does not use the word african-americans. they have exulted criminals, atheists, and communists at the expense of real americans. he gets strong support in the south, but also fairly strong support in some white ethnic areas in the north. very late in the 1968 campaign wallace is pulling in double
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digits in brooklyn, staten island -- which is his test borough in new york city -- and queens. he is not just a southern candidate. indeed, he poses a problem for the republican nominee, richard nixon. if nixon is not -- if wallace conservativeany votes away from nixon, he would help the democrats win with the minority of the votes. on this quite clever strategy called at the -- ita southern strategy was actually much broader than a southern strategy -- of challenging the precedence of the warren court. appealing to what we would call a racial backlash vote. but doing so in code. so you don't hear anything from 1968 from nixon that the civil rights act was bad, or that i am
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opposed to equal rights for black people. he would leave impressions of the mind. the issue nixon seizes on is crime. that the warren court has made too many decisions in favor of the rights of criminals and it has created dangerous situations for society as a whole. and here is an example of a tv at nixon runs in 1968. it is a very cleverly constructed ad. as we will see, there is only one person in this ad. we are left to imagine who the person pursuing this woman actually is. >> crimes of violence in the united states have almost doubled in recent years. today, a violent crime is
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committed every 60 seconds. a robbery every 2.5 minutes. a mugging every six minutes. a murder every 43 minutes. and it will get worse, unless we take the offensive. freedom from fear is a basic right of every american. we must restore it. prof. johnson: the actual text, the video of that at does not appeal to racial sentiment at all. we are seeing a woman walking down the street. if you are a viewer in 1968 and you happen to imagine that an african-american man is following that woman, that might be what is in your mind. it is not what nixon says. the nixon strategy in 1968 is plausible deniability on the issue of race. he is not stimulating a backlash
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sentiment. yes, he seems to be talking a lot about crime, and yes, there seems to be the idea that african-americans are criminals. he does not really push the issue in a way that wallace does. there is a lot of overt racist rhetoric that we see from wallace. student: were those numbers accurate? prof. johnson: they were perfectly accurate numbers. there was a crime wave. there are riots in most urban areas in the u.s. starting in 1964 and going through 1968. every summer there are major riots. one time in new york, one time in l.a., in newark, rochester, new york. nixon is not inventing the crime issue. the answer that he is giving is a simplistic answer. student: do know how that compares to now? prof. johnson: we will talk more about this when we get to the 1980's and 1990's. violent crime rate is way down
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from the 1960's and the severity 1970's. of these crimes has increased because the power of weapons has increased in some respects, but murder is down, armed robbery is down, muggings are down. this is a period with a much more dangerous period if you want to use that. nixon is not inventing the issue, but he is presenting a particular frame on the issue. student: with dr. martin luther king, did it cause a problem? prof. johnson: the other policy backdrop here is that after the assassination of martin luther king and the assassination of robert kennedy, congress passes a crime control act. but the primary thrust of this act is a gun control measure. a fairly weak gun control measure. but nonetheless, a gun control measure. from nixon's standpoint, the underlying argument is johnson and liberals in washington are interested not in protecting this woman walking down the street.
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they are interested in taking away or limiting the rights of guns for americans. nixon overwhelmingly wins. johnson, in 1968, had carried 44 of 50 states. by 1968 nixon basically sweeps the country. wallace carries a handful of states in the south. as all of this is going on, johnson is still trying to come up with a scheme to put a replacement on the supreme court. and what he thinks is a possibility is to use the recess appointment power. this very obscure constitutional clause that was commonly used in the 19th century, had started to fall out of fashion in the 20th century. it said when there was a federal vacancy and congress was out of
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session on a recess, the president could name a replacement that would serve until the end of the next congressional term. so, what johnson is thinking in late october and early november, maybe what iote -- will do is, congress is in recess. i will name a recess appointment as chief justice. it is not going to be fortas. we are not going to come up with this complicated scheme of a two for one replacement. but name a liberal. the liberal he seizes on is goldberg, the former justice he had driven out in 1965. the hope was if he named goldberg as a recess appointment and goldberg was in place when nixon became president that nixon might be somehow pressured to nominate goldberg for a full term. the chances of that happening were not high. nixon figures out what he is doing. almost immediately after nixon wins the election, he issues a
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public statement inviting her warning -- earl warren to remain in place for the remainder of the term. johnson concedes that the game is up. he calls warren, to sort of complain about the situation, like his conversations with fortas. it was a quite improper call. we have johnson and warren trying to come up with a scheme to replace them. this is from november of 1968. this is the last time lbj thinks of the possibility of the supreme court nominee. >> the press will be asking us , what right does nixon have to say it will end january the 20th? have we committed that we will not name anyone? that leaves me in bad shape with goldberg. what we have said to goldberg is this. i told people to talk to me on his behalf. i don't think he could get confirmed and i think it would be tragic for his life.
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if there were evidence that i was wrong, i would certainly want to preserve the court, if i could. i would certainly regard him as a good appointment. >> so what i. >> that is my problem with him. i don't think there is much chance, but i'm afraid he won't understand what has happened here. i'm afraid he will think i have been playing and knowing the whole time that this might happen. i'm hoping you will explain to him what took place. prof. johnson: a typical johnson call. the other person does not really get in much. warren gets the message and calls goldberg. he says, look, we tried for the recess appointment but it did not work out. i will remain in place. he finally resigns in june of 1969. at which point, nixon nominates this man, warren burger. a fairly conservative judge from
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the eighth circuit, which is based in the minnesota, to become chief justice of the supreme court. so we replaced a liberal chief justice -- a very liberal -- with a more conservative court. this is only nixon's first appointment. nixon will get to make four supreme court appointments in his first term. a significant turnover. the second is an unexpected one. justice fortas. one of the great ironies of this is that johnson, by trying to promote fortas from associate justice to chief justice gives -- paves the way for fortas to collapse entirely and be removed from the court. the public had been exposed to this idea that fortas is a little ethically challenged. we have the $15,000 deal at american university. he seemed to be consulting with lbj inappropriately.
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i mean, it was clear this guy was not a paragon of ethics. and the press starts looking into fortas' background. there have been rumors around fortas as a high-priced lawyer before he went on to the supreme court. being a public servant cost fortas a decent amount in terms of finances. his friends would try to prop him up. then in 1969, it comes out that fortas had been accepting a retainer. every year, a $20,000 payment from a financier named wilson -- wolfson who was under criminal investigation. if you're planning a career as a supreme court justice, it is not a good idea to be accepting an annual payment from someone who is subject to criminal investigation. this is highly unethical conduct. the irony is this probably would not have ever come out not for
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the fact that the press was prompted to look into fortas. nixon starts sending out rumors that if he does not resign, that republicans and conservative democrats will seek to impeach him. it seems not implausible that he -- that fortas would have been removed from office. it certainly would have been a very difficult flight. fortas concludes that the integrity of the court is such i need to resign. in the summer of 1969, fortas steps down. nixon gets a wholly unexpected vacancy. this guy who was appointed in 1965, who everyone assumed would stay on the court at least through the 1970's, and is now out after four years. nixon goes to the justice department. in 1968, nixon used a southern strategy. the idea of approaching racial backlash as a way of getting southern votes.
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go back to the map. nixon does not carry some southern states. he loses texas to humphrey, and loses arkansas, louisiana, this is sippy, alabama, and georgia to george wallace. whyn's advisers say look, don't we try to use this vacant supreme court appointment as a way of appealing to southern conservatives? showing them if they affiliate with the republican party, they will get a concrete benefit. the warren court was not popular in the south. if they could get a southern conservative onto the court, nixon concludes that will be a way of bolstering republican support. there seems to be a quite good judge from north carolina on the fourth circuit, which is an appellate court in the mid-atlantic states, named clement haynesworth. very popular among north carolina republican types. a republican nominee at a time
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where there were not many republican judges in the south. remember, the south had basically been a one party, democratic area. the problem is that haynesworth actually has a pretty good judicial record. but not a great judicial record. there is some rumors of ethical improprieties, he had a couple of votes on civil rights issues that civil rights groups perceived as not particularly supportive. a group of young liberals in the senate, kind of embittered i what happened to fortas, decide that they are going to fight against haynesworth. ted kennedy, democratic senator from massachusetts. a very young ted kennedy at this point. had been elected in 1962 to take the seat that his brother had once occupied.
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kennedy is named to the judiciary committee, becomes a prominent person on civil rights issues. one of the democrats point people on civil rights issues throughout the 1960's. burj dubai, his as someone will later be a governor from indiana. he narrowly was elected in 1962, narrowly reelected in 1968, narrowly reelected in 1974, and then finally gets crushed in 1980 by dan quayle who will la as george h.w. bush's vice president. by was a very creative thinker, someone who did not temper his opinions, even though he was from a conservative state basically took liberal positions. he was a democratic activist on constitutional issues. and he is critical of haynesworth as well.
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he is worried that if haynesworth gets on the court, the result will be a string of anti-civil rights decisions. the striking thing about the haynesworth folk, however, is not that kennedy and by opposing -- oppose him. it is that we have all of these red dots on the rollcall chart. these are senate republicans who cast votes against haynesworth's confirmation. remember, this is a time where we have conservative democrats and liberal republicans. clifford case, the last republican to be elected to the u.s. senate from new jersey. election is in a very 1972. liberal republican. more liberal and lots of democrats. jacob javits, the last of the new york liberal republicans , would stay in the senate until 1980. republicanase smith,
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senator from maine, declaration of conscience against joseph mccarthy. a fairly moderate republican as well. charles mathias, a republican senator from maryland. basically, every liberal or moderate republican in the senate, and even a couple of conservatives -- robert griffin, charles caddell, a short-term now commissioner of the nfl. father was a more prestigious figure than the son. goodell had been appointed the seat and had been hoping for a full term if he could get elected. he goes down to defeat, 55-45. and nixon is astonished. he assumed this would be a safe thing. the fortas confirmation was a one-off.
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what seems to have happened is the fortas confirmation change d the rules of the game. they became more willing to look at supreme court nominees with a degree of skepticism. as we will see over the next several weeks that pattern continues at several points in the future. nixon at this point has two options. the first is to take a look at this roll call and conclude this is a democratically controlled senate, republicans are not the majority. there are some liberal republicans and in that kind of senate there simply is not a , majority for a very conservative southern judge who might be perceived as hostile to civil rights and so, nixon needs to look elsewhere. that would have been the reasonable response to the vote. nixon often did not take the reasonable response devotes and this is the occasion when he did
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not. he goes to his aides and says, i want another southerner. if he is more conservative than haynesworth, that is fine. i don't particularly care. it has to be another southerner, if at all possible. the justice department takes a look at appeals court judges from the south. they do not find anyone who would be appropriate, a republican, a southerner who , seems to be of a sufficient age to be on the supreme court. but they see a district court judge, the lowest level of the federal judiciary from florida. from the northern district of florida. this man named g harold carswell. they tell nixon he is not perfect, because he is not an appeals court judge. the traditional path for supreme nominations, event
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at this was you want to move point, from the appeals court to the supreme court. they say he is a republican. he is very conservative. if you want to go with a southern conservative nominee, he is your man. nixon says that sounds great, we will nominate him. there are two problems with the carswell nomination. the first is that haynesworth did have a couple of votes that were hostile to civil rights. there was no indication that haynesworth was racist or that he was personally hostile towards african-americans in any respect. indeed he would stay on the circuit court after his defeat. for several years, he was well-liked liked by both parties. you might have liked his votes or disliked his votes, but he was not personally problematic. carswell on the before entering judiciary had run for public
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, office in georgia. it doesn't appear as if the nixon people pick this up. in 1948, running for state legislature in georgia, he delivered a speech saying he was in favor of segregation forever. he disparaged the idea of african american equality. if haynesworth is unacceptable because of his civil rights positions, carswell will be worse. but nixon pushes senate republicans. he says we cannot let the senate , democrats do this to us twice. he blocked us with haynesworth. you have to stay with me on carswell. it looks as if carswell, despite this embarrassing vote, might make it through. but then a second problem emerges. the district court opinions get appealed to the appellate courts . for the most part, district court judges get it right. you don't see tons of decisions that are overturned by the appeals court. sometimes it might be 15% or
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20%. carswell on the other hand has seen his opinion turned over at a higher ratio than any other district court judge in the country as of 1969. a lot of these were not cases where, let us say carswell is , making anti-civil rights decisions and the appeals court was saying you cannot do that. these were technical decisions. carswell seemed not to be understanding the basics of the law. their quickly emerged a consensus among both parties that, quite apart from his beliefs, this was a man who was not particularly smart. whether that was a good nominee for that to be on the court. this becomes crystallized in a senate debate. the republican point person, the senator from nebraska, his argument for carswell is that the mediocre people of the united states deserve representation on the court as
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well. [laughter] this is a very peculiar argument for a supreme court justice. so, for senate republicans that had been inclined to go along with nixon, even though they did not carswell and his civil rights opinions, swallowing this as an argument, that the mediocre are entitled to representation and that is why we should confirm carswell is a bridge too far. carswell goes down to defeat, although by a narrower margin. 45 to 51 is the vote and carswell is gone. confirming the argument that his critics made about his intelligence or lack thereof. carswell decides that he will give up his position. life, tenured position on the federal judiciary, to run for the u.s. senate from florida in
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the following year in 1970. he is certain he will be elected and he can become a prominent national figure. he does not even get the republican nomination and he is never heard from again in political life. at that point, nixon concludes we are not going to get a at least a seven conservative -- in this particular environment. he goes to the justice department and says get me a conservative who will be an acceptable nominee. the justice department turns to harry blackmun. a close friend reliable .f warren he'll vote the nixon way on judicial matters. blackmun becomes the most liberal member of the supreme court. he is the most liberal member of the supreme court. a reminder that these confirmation battles can have lasting impacts.
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rather than haynesworth or carswell the country gets blackmun, a liberal nominee. justice, butsecond it does not go as well as he had hoped. there are two final nixon confirmations. both come in 1971, almost back-to-back. justice john marshall harlan the ii falls ill in the summer of 1971. resigns from the court and dies a couple of months thereafter. justice hugo black appointed to the court by fdr in the 1930s suffers a stroke in september 1931 and dies a couple of weeks later. so nixon all of a sudden has two vacancies. the justice department has found a southerner who will be acceptable. this man, lewis powell from
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conservative, but acceptable to senate democrats. he's easily confirmed. but nixon goes to the justice and says, look, what i want is a strong conservative. a principled conservative, someone who will fight for conservative ideas on the court. that's the first obligation. but the second obligation, nixon said, is ideally what we would like is someone that will help us for the 1972 campaign. this is late 1971. the 1972 campaign is gearing up and republican polling suggests that a particularly soft area for democrats in 1972 are northern white ethnic voters, who are concerned about issues like crime and the vietnam war, and what they see as the democrats as being too friendly
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to hippies and radical students and not consumed enough with hard working union voters. in particular, ethnic voters. catholic voters, polish voters, irish american, italian americans, in new york city, in chicago, in cleveland, in detroit, and in key northern areas. so nixon presses the justice department to see if they can find a good conservative ethnic nominee. is this is thee point where, for the most part catholic voters tended to be , democrats. dwight eisenhower had nominated a catholic in the 1950s, justice brennan he turned out to , be very liberal. the court wants to avoid this. nixon gets on the phone to press the justice department, here he is with john mitchell, who is his attorney general, to see if there is an alternative to rehnquist. someone who would be very conservative but also might , satisfy ethnic political desires. [video clip] now on the second thing, john
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if it comes, can i urge you to , see if you can find a catholic? a good catholic. >> another brennan? >> christ, no. that is what i mean. >> [indiscernible] >> they got brennan, no. you don't have an honest italian, do you? >> they are awful hard to find a . polish? >> oh, christ, no. he's a protestant. >> all right. take a look at the catholics, will you? >> [indiscernible] >> politically, we're going to gain a lot more from a catholic. if he's a conservative, a
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catholic conservative is better than a protestant conservative. we really need that -- the point is it will mean more to the catholics in my mind than it will to the protestants. >> [indiscernible] >> well, sounds good. after i die. you know and i know there aren't any. >> there are no conservatives out there. >> never. [laughter] >> this is not exactly a reassuring conversation about an administration that's looking for high qualifications to the court. mitchell does his due diligence and concludes there are no acceptably conservative catholics to nominate and so rehnquist is selected. of nixon's four nominees rehnquist is the one who most closely full fist his vision. he's a strong conservative, very smart. he had come to washington in the 1960s, having worked for barry goldwater. he'll remain on the court through the bush two years. he eventually will be elevated to be chief justice by reagan and we'll encounter him over and over again over the considers of the semester. so essentially what we have is a transformation of the court from
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a very liberal court to a much more closely divided court with a strong conservative. rehnquist a fairly conservative chief justice. in berger, moderate conservative justice. and blackmon who will become liberal although in the 1970's he is more centrist or center right. he drifts to the left in the beginning of the late 1970s, and so what liberals discover, they had assumed in the 1960s. they control the court for another generation and they issued a series of division that is would protect individual rights regardless of what the public was saying. but if you do not control the supreme court you can't rely on , that as an approach that we'll see next time when we look at some of the social controversies in the liberals struggle to, 1970's. once they no longer have the court, to figure out a way to advance their cause politically.
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any questions from this material? things were not clear on? yes. go back to the strategy. when mr. johnson had predicted once he passed the civil rights bill that they would lose the south for 100 years. was that an open discussion that he had made, or he just basically thought that privately? >> that's a conversation that he purported, although this is a rare johnson conversation that wasn't recorded, with bill moyers, but he never said it publicly. in fact, what johnson does especially in the 1964 election, continuing through at least 1966, is to try to come up with a new southern coalition. he assumes, correctly the , democrats are going to struggle with white rural southerners. most of these people were critical of the civil rights movement in the 1960s, and these are people who vote for wallace in and they will vote nixon inwhelmingly for
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george mcgovern doesn't get 25% 1972. of the vote in louisiana, mississippi, and alabama, but johnson does not think it's impossible that the south will remain democratic. instead, what he's hoping for is to create a new coalition of african americans who now have the right to vote. he wants them to register and get out to vote, and urban, better educated whites. especially from places like atlanta or charlotte, or new orleans, or, you know, boston, san antonio, dallas, houston, texas who he thinks they might be moderate, they might be pro-business but he thinks they , will be open. that's a coalition to some extent that started to form in the last few years, especially in a state like virginia or in north carolina. but in the late 1960's and 1970's that coalition never quite forms.
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we talk about this a little more next time in part because urban conservatives, white conservatives in the south in the 1970s are just conservative, but also because there are tensions within this movement in the south, especially over issues around public schools. were african-americans in the south are saying we want to go to integrated schools. if we have to have bussing to achieve that, we are going to have bussing to achieve that. you have well educated, urban whites saying we want our kids to go to good schools. we don't want them bused halfway across town. it turns out that johnson's hope that he might be able to create a narrow majority of whites and blacks to compensate for civil rights does not come to fruition. if johnson had been able to run in 1968, he probably would have been a stronger candidate than humphrey. he might've carried a few southern states. but the democrats are on their way out in the south. the only democrats who do anything in the south after lbj or jimmy carter in 1976, and bill clinton in 1992, these are
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both white democratic governors from the south and they both are running kind of atypical years. we saw a lot of clips from the phone calls and everything. wow, i messede -- up. >> why did you give me this? [laughter] >> the controversy around the nixon reporting. i was unaware that lbj was recording his phone calls as well. was there any backlash to that at all, maybe not to the nixon extent but anything at all? ,>> this is wholly unknown. kennedy also had recorded. kennedy, johnson and nixon, the three presidents who extensively record, and these are brilliant political minds. neither kennedy nor johnson nor
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nixon realized that they are creating a record that could be subpoenaed. at this time, this is pre-watergate, these are the president's personal property to do with as he saw fit. so in theory, nixon, as we'll see next time, nixon could have destroyed the tapes, what johnson was -- kennedy taped for historical prosperity. he wanted to use the recordings to serve as a basis for his memoirs. johnson recorded because johnson did deals on the phone. he was basically wanting commitments from people so he wanted a record in case people went back on him with his deals, he could say, look, you know, you told me on september 22 you were going to be with me and i have a recording of this. but no one else knew. so when the watergate hearings break, and the nixon tapes are revealed, the assumption come at the time, is that the only person who -- only president who had ever recorded was nixon, and then they sheepishly come out that johnson and kennedy had also taped.
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there was a small amount of taping with eisenhower, roosevelt and fdr but insignificant amounts. for our purposes, these are incredible historical sources because they kind of bring us inside the oval office. there are no presidents who tape after nixon because they understand they could be subpoenaed. but you can imagine other technologies, email in the late 1980s and early 1990s,apparently the bush administration did a lot with emails because it was a new technology then and they didn't realize they were creating a permanent record. text messages in the clinton administration, again this idea of creating permanent records, but we have no other taping. >> would you argue nixon was a politician first and a president second? it seems like he was trying to find out, you know, how can i get elected? >> nixon is a foreign policy
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president. nixon's goal is to deal with foreign policy, foreign policy issues, and so, in his mind, domestic matters -- the goal of the domestic matter is to get him re-elected. so, he wouldn't have done deals like this with domestic actors on china or the soviet union. that he cares about. who is on the supreme court, he doesn't particularly care as long as it will serve his political purposes. that's a pattern you will see with nixon on a whole bunch of domestic issues, not just the supreme court. interesting to see the whole chief justice and sitting justice being able to have a conversation about basically being enslaved in his decision? that goes back to hamilton as well. what he thought the justices were supposed to be. going to the far-left. >> this is highly inappropriate behavior.
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fortas should not be having private conversations with lbj. rehnquist should not be cooperating to the degree with nixon. rehnquist recuses him from watergate hearings. you have to assume that these kind of conversations occurred with truman and fdr and probably with eisenhower. we just don't have recordings of these conversations. to some extent we've moved towards a more ethical supreme court. i mean it's highly unlikely, for instance, that in 2015, elena kagan would head off to the oval office and chat with president obama. she recognized that that sort of thing would be improper. but neither fortas nor johnson see anything wrong with this kind of conduct in the 1960s. you have to assume, you know, let's say there was a constitutional challenge to a johnson bill. could any of us really be confident that fortas would look
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at that dispassionately and say, i think this is unconstitutional so i'm going to vote against lbj although i really like him? it raises questions of impartiality. this then comes tumbling down, this issue of judicial ethics next time with watergate. that's where we are, where we're at. quizzes and a couple of the midterms are up front. [chatter] announcer: listen to lectures in history on the go by streaming our podcast anywhere, anytime. you are watching american history tv only on c-span3. announcer: if you like american history tv, keep up with us during the week on facebook, twitter, and youtube. learn about what happened this day in history and see preview clips of upcoming programs. @c-spanhistory.
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. announcer: we learn about theater roosevelt's legacy. here is a preview. [video clip] america was waiting expectantly to see what fdr would do. americans in the early 1900s did not easily overlook an agitator who bore one of the most aristocratic names, who could charm a sunday school class, turnout historical essays, or turn a steer. said, "teddy roosevelt was tom sawyer of the political world always looking for a chance to show off your cup one cabinet member put it this way. on eleanor roosevelt's 36 birthday the message read as follows -- "you have made a good
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start in life and your friends have great hopes for you when ."u grow up surely he always wanted to be the center of attention. roosevelt was the kind of person who wanted to be the bride at every wedding and the corpse at every funeral. my favorite story to illustrate is maybe apocryphal, but a story anyway. on one occasion roosevelt came up to a business and said, i had the most wonderful dream last night. that i died and went to heaven. on the first night celestial choir sang. it was magnificent. sopranos, 1000 altos, 1000 basis. the friend said, what about the tenors?
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roosevelt replied, i sang tenor. you get the idea. announcer: you can watch the entire lecture by historian william crawley sunday on american history tv at 8:00 p.m. eastern . announcer: located in charleston inbor fort sumter was held 1861. despite south carolina's secession in 1860. up next, mark malloy describes the events of april 12, 1861 when confederate guns around the harbor opened fire on fort sumter. this talk was part of a symposium on the war in the east hosted by the emerging civil war blog. welcome back to the virtual symposium. glad to have you with us. my name is chris. our next speaker comes to


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