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Editor's Note: This is Part II of a three part series.

Pandemonium Reigns Over a Scandal-Plagued Nominee

The year was June 1968 and Chief Justice Earl Warren had privately alerted President Lyndon B. Johnson that he would be retiring from the Supreme Court. Within days, President Johnson announced that he would nominate liberal Associate Justice Abe Fortas as Earl Warren's replacement. Later Johnson would reveal that the Chief Justice (appointed by Republican Dwight D. Eisenhower) had been concerned about who would determine his successor and was interested in seeing to it that the progressive record that the Warren Court has created would be maintained.

But a politically wounded President and a scandal plagued nominee would find themselves powerless against a United States Senate engaging in new tactics that ultimately would shape and influence what would become the modern Supreme Court confirmation process.

Just three months earlier, in a bid to salvage the presidential prospects of the Democratic Party, President Johnson had announced that he would not be running for re-election stating "I have concluded that I should not permit the Presidency to become involved in the partisan divisions that are developing in this political year.... Believing this as I do I shall not seek, and I will not accept, the nomination of my party for another term as your President." In his place, the Democrats would run Vice President Hubert H. Humphrey who would go on to narrowly lose to former Vice President Richard M. Nixon in November. Early polls had shown a newly rehabilitated Nixon doing quite well against Humphrey and Nixon would ultimately open up a double digit lead in those polls before the summer was over.

In the summer of 1968, there was only one real candidate that President Johnson would consider: Associate Justice Abe Fortas a reliable liberal vote on the Supreme Court, a long time political advisor and friend who had been unanimously confirmed three years earlier. Justice Fortas was born in Memphis, Tennessee as the youngest son of an Orthodox Jewish cabinetmaker who'd been born in England.

Although Abe Fortas' impressive career included graduating second in his class at Yale Law School, teaching at Yale Law School, working as a senior advisor to SEC Chairman (and future Supreme Court Justice) William O. Douglass, getting appointed as general counsel of the Public Works Administration, serving as Undersecretary of the Interior in the Roosevelt Administration and working as a member of President Johnson's senior White House Staff before joining the Supreme Court, he was perhaps most well known for having successfully argued Clarence Earl Gideon's appeal before the Supreme Court.

Clarence Earl Gideon had been convicted of breaking into a pool hall in Florida. Unable to afford an attorney, Abe Fortas argued on his behalf that Florida should have provided one for him and ultimately won a unanimous decision from the Court. It was in Gideon v. Wainwright, that the Court recognized for the first time that the right to have legal counsel included an obligation for the state to provide one in all criminal cases to the indigent.

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