Republicans Looking to Invoke 'LBJ Precedent' to Stop Obama Court Pick

The tragic death Saturday of Justice Antonin Scalia means President Obama — with less than a year in office to go — has suddenly been presented the opportunity to change the direction of the U.S. Supreme Court.

As a result, talk is already mounting among conservative court-watchers that Senate Republicans should invoke what is known as the “LBJ precedent” of 1968. 

In June of that year, when Chief Justice Earl Warren announced his retirement, President Lyndon Johnson nominated Associate Justice Abe Fortas to succeed him and Federal Judge Homer Thornberry to succeed Fortas.

“At  age 58, Fortas, one of Johnson’s oldest and closest advisers, could be counted on to give the court democratic leadership far into the future, even if Republicans regained the presidency in 1968, as seemed likely,” reported the late columnists Rowland Evans and Robert Novak. 
         
A combination of Republican and conservative Democratic senators charged that, with barely seven months left to his term, it was unfair for the lame duck President to make such a crucial appointment. 

Led by the late Sen. Robert Griffin (R.-Mich.), Fortas opponents of both parties maintained a filibuster.  Fortas eventually withdrew his nomination and the next President, Republican Richard Nixon, named Warren Burger the new chief justice to succeed Warren in 1969.
 
Fortas’ succession to Warren would have maintained liberal domination of the court in 1968. 

Scalia’s death means the stakes today are much higher.  An Obama-annointed heir to Scalia would mean nothing less than a flip of the court from left to right. 

Throughout Obama’s seven years in the White House, the high court has been considered split 4-to-4 between strict constructionist (or conservative) justices and those jurists who embrace a more liberal interpretation of the Constitution.

The remaining justice, Reagan appointee Anthony Kennedy, is in many cases the “swing vote” on key cases before the court.  

Were the Senate to confirm a liberal Obama nominee in the mold of his two previous justices (Elena Kagan and Sonia Sotomayor) to succeed the scholarly constructionist Scalia, Kennedy the court would almost surely swing to a liberal panel by 5-to-3 (with Kennedy in the middle, but no longer the “swing vote”).

Such a “sea change” would come as the Supreme Court is poised to rule on such key legal cases dealing with the President’s controversial executive order on immigration (U.S. v. Texas) and the use of union dues for political purposes (Friedrichs v. CTA, et. al.). 
         
Whether Senate Majority Leader Mitch McConnell (R.-Ky.) and his fellow GOP senators in the majority invoke the “LBJ precedent” will be a defining moment for the Republican Party in the Senate this year.