Fortas: The Rise and Ruin of a Supreme Court Justice
By Bruce Allen Murphy
William Morrow, $25.00
ABE Fortas--New Deal liberal whiz kid, chief counsel in the Gideon case, drafter of what amounted to a Juvenile Bill of Rights while an associate Supreme Court justice--owned a chauffeur-driven two-tone Rolls Royce. It is a harsh fact to remember him by.
But in the end, the Rolls Royce owned by this man who fought for the rights of the unprotected, who himself had known poverty as a young Jewish boy growing up in Memphis, Tennessee, does matter. Just as the $20,000 fee he accepted from well-known stock manipulator Louis Wolfson or the $15,000 he was paid for a "seminar" he led at American University, all while serving on the Court, mattered to the Senate when Lyndon Baines Johnson nominated him to replace Earl Warren as chief justice.
Bruce Allen Murphy in his gripping biography of this ultimate insider, practitioner and brilliant legal mind attempts to understand how Abe Fortas met such a disastrous finale. The rising young star of the Warren Court and the man groomed to lead liberalism after the great chief justice had retired would suffer a resounding defeat before the Senate during his confirmation hearings on his promotion to the top position in the Court.
Shortly after Richard M. Nixon entered the White House, he would become the target of the press, the Justice Department and ultimately the legal world for what were perceived to be ethical breaches. If before he was the torchbearer of liberalism under siege, after the second round of controversy, Fortas was simply forgotten or remembered as an embarrassment.
Murphy writes this biography as if it were a murder mystery, with the victim being Fortas' political life. In the end, he concludes, "The Rise and Ruin" of Fortas is the story of a murder-suicide. The strength of this massive work lies in the depth of detail offered and the grace and drama of the telling. Key incidents are hinted at then slyly tucked away by Murphy, only to be revealed at a later moment when the dramatic effect would be greater.
In a post-Watergate world, we have all become suckers for smoking guns and Murphy exploits this weakness in his readers to the hilt. His telling of the confirmation hearings is breathtaking, with Strom Thurmond, Sam Ervin and others titans of the Senate's conservative wing desperately trying to pin down their cagey witness, while Murphy treats his readers to the bombshells that his inquisitors never could draw out of him.
BUT if Murphy has learned how to tell a story from Woodward and Bernstein, he has unfortunately allowed his historical imagination to take its cue from investigative reporters as well. Murphy believes that Fortas' story is murder-suicide because the justice and top adviser to Johnson, who proved so adroit in managing the crises that others confronted, suffered from personal paralysis when in similar situations. After all had not Justice William O. Douglas himself had an arrangement with the Parvin Foundation while on the Court that was remarkably similar to Fortas' own connection to the Wolfson Foundation?
Yet Douglas was never brought to ruin for it. Murphy suggests that Douglas knew how to play political hardball in a way Fortas did not; when Douglas was bleeding, he struck back at the sharks while Fortas treaded water in deliberation. But there is more to the Fortas story than political ineptitude.
Indeed, from reading this biography, one gets the distinct impression that far from not being able to handle the rough and tumble ways of Washington, Fortas was all too good at politics, so good at it that he probably didn't belong on the Court.
The greatest myth about the Nation's Capitol is that all the players are unethical, idealism is a luxury, rumor and perception always matter more than fact, and battles are fought always for personal gain and never a higher cause. Murphy has swallowed the myth whole, at one point telling us that in Washington everyone has a skeleton in his closet.
Of course the truth is that there are ethical people in Washington and truer still, many a Washington player with a skeleton in his closet still believes that somewhere in government someone should be clean. The United States Supreme Court seems a logical place to center such expectations of cleanliness, truthfulness and honor.
Abe Fortas, for all the good that he did and all the brilliance he possessed, was not pristine. He was shamelessly greedy and even more shamelessly solicitous of power.
FROM his first days as a young member of the Yale law faculty, his lust for fame was in evidence. He belonged to an elite club of profs there who played a game which amounted to counting the number of times each participant was mentioned in the press on a given week. While serving on the Court, he spent much of his time at the White House, advising Johnson just as he had done before becoming a justice. Fortas knew deep down that such a bending of the doctrine of separation of powers was not right, and though he never made such an admission, his omissions on the subject before the Senate Judiciary Committee during his confirmation hearings show his own doubts.
He told the committee members that he had made "full disclosure" to them on the subject, when he had not, for had they known of his extent of involvement in formulating Administration policy--including everything from the Detroit riots, to suggesting appointments, to crafting our policy in Vietnam--the Senate and the public would have been shocked.
In short, Fortas was the ultimate creature of Washington, who wanted to be in on everything and accountable to no one. His ruin is thus not surprising, because there is a limit quite simply to what one can get away with. And if it is true that others got away with more or just as much and were never caught, that by no means implies that Fortas was a victim of ineptitude and not, in the lexicon of today, his own sleaze.
Murphy is most convincing when he tries to put the Fortas affair into a historical context, rather than a crassly political one. He notes that Fortas fell victim to what amounted to a swing of the pendulum in American politics, when the "whales" of the Senate saw their power pass away to a younger generation and when the liberalism of LBJ and JFK was replaced by a conservatism of which we may only now be seeing the last vestiges.
THE fate of Robert Bork, who himself fell victim to the Senate after a similarly brusing confirmation battle in which his conservative views were treated with the same contempt that once met Fortas' liberal ideas, lingers in the background of this biography. Murphy makes the connection explicit in his preface and his epilogue. But a crucial difference remains.
If the Bork episode was purely the result of clashing political ideologies and a shift in the direction of American politics, such was not the case for Fortas. In the end, even liberal senators would call for his resignation from the Court, and then-Sen. Walter Mondale (D-Minn.) was the first of them to deliver the request.
Fortas had betrayed his own ideals, and in the process made the myth of Camelot and the Great Society seem a cruel hoax. One could fight for truth and justice and make a pretty good buck while doing it, was the lesson he taught. One could also cozy up to power, find for himself a comfortable niche in the White House power structure and never fear that he would be accountable.
The murder of Abe Fortas was in many ways simply more testimony to the reality that no matter how corrupt our government, how illusory our democracy, the myth is too strong to be discarded and accountability will ulitmately catch up with fugitives from it.
So far from foreshadowing the Bork hearings, the Fortas affair is a prelude to Watergate, another time when democracy caught up with its defilers. What nags at the end of this book, though, is that had Fortas not accepted Johnson's appointment to the Court as he had tried to do, he would never had been held accountable. His power would have been unchecked, his wealth would have been increased.
One knows today that the number of Abe Fortases who roam the White House halls and never get caught simply because they never officially become a part of the government is large. And so long as their ranks remain large, the lesson of the rise and ruin of Abe Fortas will never be fully learned.