LBJ’s biggest mistake (outside Vietnam) — not advancing Marshall to the top

Apropos of Bush’s nomination of Harriet Miers to the Supreme Court, it should be noted (as David Sirota already has done on his blog) that Lyndon Johnson’s greatest domestic mistake was nominating Associate Justice Abe Fortas to replace retiring Chief Justice Earl Warren.

Many of you know the basics — Fortas was advising LBJ on ’Nam, was leaking from private SCOTUS discussions and otherwise making a mockery of separation of powers. And of course, none of this even touches on Fortas being an old political fixer back to getting “Landslide Lyndon” to be able to hold on to his “landslide” 87-vote Senate victory in 1948.

But, the mistake is actually a mistake compounded if you look at who Johnson could have nominated.

LBJ had the chance to ensure he had the greatest civil rights legacy since Lincoln, while in the practical political world he loved, perhaps giving the Humphrey presidential campaign a boost at the same time.

All Johnson had to do was nominate Associate Justice Thurgood Marshall to replace Warren.

First, the legacy issue. Naming the first black chief justice would have put that in the bag.

Second, even though Vietnam still would have been on the table, Humphrey probably still would have gotten a boost. Remember, he lost the popular vote by just 0.7 percent and split the electoral vote 301-191, with 46 for Wallace.

And, beyond that, let’s look at the history of the court. Civil liberties and civil rights would have gotten even more protection, and the recognition of broader “penumbras,” than they did in the Burger Court. No trimming back of Miranda, either.

Plus, Marshall himself would have written an 8-1, not 7-2, opinion on Roe. He might have gone for a narrower ruling, which might have been better. He might have been wise enough to state that an explicit right to privacy was one of those unenumerated Ninth Amendment rights, and so, sneakily, thereby enumerate it.

But, because the LBJ of 1968 lapsed into the LBJ of 1948, under stress and strain, or whatever (did Fortas have a tape recording of Sheriff Parr or Photostats of the forged ballots?), and we never got Chief Justice Marshall