Out of Court

A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court.
by Robert Shogan.
Bobbs-Merrill. 314 pp. $10.00.

On the basis of early returns the Supreme Court, which now seats four appointees of Mr. Nixon, is living up to the best hopes of one part of the citizenry and the worst expectations of another, by changing the direction of decisions in the area of criminal law. With the liberal group which dominated the Warren Court shrunk to a minority, the Justices are exhibiting greater compassion for the problems of prosecutors and not so much for the problems of defendants. For this implementation of a campaign promise Mr. Nixon owes something to Abe Fortas, Lyndon Johnson, and Louis Wolfson, the main players in A Question of Judgment. Robert Shogan, who covered the Supreme Court for Newsweek at the time of Justice Fortas’s forced resignation in 1969, tells the story in a fair and coherent, if not stylish, way. His leading characters are big men, self-made, smart, manipulative, and very successful. Though the tale falls considerably short of Greek tragedy, to which some observers hastened to liken it at the time, its protagonists were in fact done in by the very qualities which had raised them so high.

Fortas received his place on the Court in 1965, in one of those fast shuffles which were second nature to his friend Lyndon Johnson. Scarcely had Adlai Stevenson been laid to rest than Johnson was twisting the arm of Justice Arthur Goldberg to take Stevenson’s uncomfortable, unrewarding, and unimportant place as U.S. Ambassador to the United Nations. Nothing in the former President’s career indicates that he held any special regard either for the United Nations or for Arthur Goldberg—but Goldberg’s departure from the Court would leave open the “Jewish seat” for occupancy by Abe Fortas.

Cronyism seems to come more naturally to Democratic Presidents than to Republicans. Who can imagine Richard Nixon having a crony? Harry Truman’s weakness for old pals burdened the Supreme Court with Tom Clark and Sherman Minton. In the case of Fortas, however, even conservatives did not dispute his experience of the law or the quality of his mind. Liberals were willing to overlook his late associations with big business out of consideration for his earlier defense of alleged security risks. Though there was some grumbling among Republicans over the fact that Fortas was too close to the President for their comfort, having served for a couple of decades as Johnson’s confidant, front man, and intermediary in such delicate matters as those involving Bobby Baker and Walter Jenkins, his appointment went through without any difficulty whatsoever.

The President’s effort in 1968 to turn Associate Justice Fortas into Chief Justice Fortas was again distinguished by the LBJ technique, and remains a revealing tale of maneuverings on the highest level of government. The project took shape under a cloud, with the confidential resignation of Chief Justice Warren, to become effective at the President’s pleasure. Foreseeing that Richard Nixon, whose low opinion of the Warren Court was no secret in that election season, might soon assume the Presidency, Warren naturally preferred that his successor be named by Johnson. By leaving the precise date of his retirement open, he was putting the Senate’s Republicans on notice that if they obstructed confirmation of whomever Johnson might choose, he, Warren, would still be on the bench. The Republicans did not miss the point, and did not take it kindly.

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Johnson went about preparing for the elevation of Abe Fortas with the means which he had perfected in the Senate. To replace Fortas as Associate Justice, he chose an old pal, Homer Thornberry, a former Congressman whom he had already turned into a district-court judge and then into a court-of-appeals judge. Thornberry’s main qualification for the high court was that he came from Texas—a distinction that Johnson hoped would please important Southern Senators who felt no particular kinship with Abe Fortas.

To pacify the Republican side, the President made a degrading deal with Minority Leader Everett Dirksen, one feature of which was the preservation of the Subversive Activities Control Board, a relic of the 1950’s which had been put out of business but not out of existence by a series of court decisions. As the situation stood in 1968, if the Attorney General did not bring a case before the Board by the end of the year it was bound to expire. In consequence of the Johnson-Dirksen deal, Attorney General Ramsey Clark, renowned civil libertarian, presented the Board with seven sham cases and thus continued its useless life, and Abe Fortas, renowned adversary of subversive-hunters, was spared the opposition of Everett Dirksen.

It all went for nothing. Johnson’s prestige was crumbling in 1968, and Dirksen could not keep his troops from the attack. The Senate’s conservative cadre found no joy in the prospect of a Fortas Court replacing the Warren Court, and set up a determined resistance, with at least the implicit support of candidate Nixon. Fortas was vulnerable to the charge that while on the bench he had remained an intimate counselor at the White House and his testimony before a Senate committee, as Shogan reports, “left an appearance of cleverness rather than candor”—an observation that may be applied more generally to Fortas’s public performances. The revelation that the Justice had received $15,000 from five businessmen that summer for conducting a university seminar capped the anti-Fortas campaign. The Presidential election was on everyone’s mind; the Republicans and their Southern-Democratic allies mounted a filibuster against the nomination; and Everett Dirksen decided that his arrangement with the President did not require that he vote for cloture. The pleasure of filling the post of Chief Justice was left to the new President.

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Did anti-Semitism figure significantly in the rejection of Abe Fortas? At one stage during the campaign for his nomination, according to Shogan, the Johnson forces spread the word that rejection would be ill interpreted by Jewish groups, so the factor of Jewishness might actually have made the opposition a bit more fastidious. One need not pretend that there are no anti-Semites in the U.S. Senate to believe that in this case the conservative coalition had sufficient cause for seeking to block Fortas’s promotion without worrying about his religion.

The fact that Fortas, while a Justice, would accept a substantial sum from businessmen suggests that his long career as a Washington lawyer and operator was not easily reconcilable with his new career. His salary on the Court was $39,500 a year, about a fifth of his earnings at Arnold, Fortas & Porter. That, to be sure, was not the totality of his income. He had, as men in his position do, real-estate and stock holdings. Shogan reports that he was also getting $50,000 a year for five years under the terms of his settlement with his law firm, and his wife, a most successful attorney, was earning upward of $100,000 a year. But the couple lived high, and money seemed to be much on the Justice’s mind. How else explain his readiness—indeed, by Shogan’s account, his positive eagerness—after his appointment to the bench, to become a consultant to the Wolfson Family Foundation, a post which carried with it few duties and $20,000 a year for the rest of his life, and the same continuing sum to his wife after his death?

Louis Wolfson, the man with whom Justice Fortas negotiated this dreamy arrangement, was an odd one for association with a judge at any level. A known wheeler-dealer in stocks and companies whose activities had already brought him under suspicion of the SEC and would soon bring him to jail, Wolfson, like others of his temperament and specialty, was given to making friendly overtures to public figures. One never knew, after all, where influence might reside at any given time, and a modest investment might produce high returns. Or perhaps it was only his way of repairing some fearful insecurity. Whatever prompted Wolfson’s fits of generosity, never had so prominent a figure as a Supreme Court Justice responded so warmly to his overtures.

Well, Life magazine broke the story of the Wolfson-Fortas relationship. No one charged that the Justice had actually interceded for the businessman in his troubles with the law or had done anything at all illegal, but that was not necessary. The Nixon administration had enough to force his resignation—and resign he did, after an “explanation” so evasive, not to say untruthful, that it remains today an embarrassment to read. Shogan tells this part of the story particularly well.

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I have heard no grieving over Abe Fortas’s having to resume the practice of law in Washington, along with the cultivated, expensive, high-powered way of life for which he was known. But there has been lamentation over the fact that the Supreme Court was deprived of so brilliant a mind just at a time when Richard Nixon had the power to stock it with mediocrities. The President has left no question of his attraction to the mediocre, but Abe Fortas’s mind may have suffered from an excess of brilliance, or at any rate, agility. According to Robert Shogan, it was Fortas who developed the theory that the way in which alleged pornography is advertised can be used to convict a distributor of material which is not in itself illegal, and so to send Ralph Ginzburg to jail. A tricky ruling, the product of a quick mind intent on creating a crime to satisfy the desire to punish. Agility taken by itself is not entirely an asset for a judge.

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A Question of Justice does not tell us what makes a good judge. It does convey a notion of what makes an effective lawyer-about-Washington. Perhaps Abe Fortas simply came to the Court too late, after too many years of doing what had to be done to make a career of mediating between the rich and the powerful, and enjoying it too much. He is, undeniably, a man of varied accomplishments, but the Court was not his vocation.

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