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The Fortas Reflex

The Fourth Estate

By William C. Bryson

When Supreme Court Justice Abe Fortas requested that President Johnson withdraw his name from nomination as Chief Justice, the Washington Post editorialized solemnly:

"The manner of choosing Chief Justices defined by the Constitution has been subverted...Behind the attack [on Fortas] was hatred of the President and a desire to discipline the court."

The New York Times wrote, even more ominously, that the Senate's refusal to consider the Fortas nomination represented "a defeat for democracy." "The Senate of the United States," the Times continued, "has been coerced into non-fulfillment of its constitutional duty."

Liberal papers throughout the country righteously excoriated the cabal of Southern Democrats and conservative Republicans who held up, and finally defeated, the appointments of Fortas and former congressman Homer Thornberry. Unfortunately, much less time was spent on the substantive issue of whether Fortas, and more particularly Thornberry, were good choices for the positions. That they were opposed by the Senate neanderthals, and that many of the attacks on Fortas were fatuous and petulant, seemed enough to make the case for their appointments airtight and inviolable.

Some of the charges levied against Fortas--his alleged involvement with a Communist-dominated legal group in the early thirties, his vote to exclude a few cheap skin flicks from classification as hard-core pornography, and the contention that his booklet on civil disobedience "condoned lawlessness"--were clearly distorted, irrelevant, and fundamentally stupid. And Senator J. Strom Thurmond's infantile harassment of Justice Fortas during the Senate Judiciary Committee hearings did nothing to enhance the dignity of either the senate or the court.

Other of the charges against Fortas, however, were more valid, and deserved far more careful examination from the press than they received.

Accusations of cronyism in the appointments were pooh-poohed by everyone from the Times to Senator Everett Dirksen ("The President surely wouldn't go out looking for enemies to put on the court, now would he?"). But, the Times itself reported, after the junior justice had already been on the bench for more than a year, "Fortas's involvement in the President's life seems total," and he appears "the most intimate and omnipresent of the President's friends and advisors."

Johnson and Fortas met in the late thirties, and since then Fortas has served as Johnson's legal advisor in a number of tight spots. Following the 1948 Texas Democratic Primary--which Johnson won by 87 votes when 200 dead Mexicans lined up in alphabetical order a week after the election to cast their ballots for him--Fortas did Johnson what might have been the biggest favor in the President's political life. Johnson's incredulous opponent had sought and obtained a court order to keep Johnson's name off the November ballot pending an investigation of the transparent fraud. Fortas, however, was able to convince Justice Hugo Black to have the order reversed, and Johnson's name was placed on the ballot, sans investigation.

Since that time, Fortas has been called upon to defend Johnson's former secretary, Bobby Baker, and to cover up for Presidential aide Walter Jenkins when he was arrested in Washington on a morals charge. Fortas's wife handles the Johnson family's tax accounts.

When he appointed Fortas to the Court, Johnson commented in his best imperial manner, "I'm sending 50,000 men to Vietnam and I'm sending you to the Supreme Court."

Although Fortas insisted in testimony before the Senate Judiciary Committee that his private discussions with Johnson, during the past three years, never involved anything that might conceivably come before the court, he subsequently admitted to having taken part in top-level conferences on both the Vietnam war and the Detroit riots. The idea that Fortas and Johnson carefully probed Constitutional questions of the separation of powers before engaging in their consultations is discredited by a comment the Times attributed to one of the President's aides: "It doesn't occur to Johnson not to call on Fortas just because he's on the Supreme Court.

"With the increasing intensity of the War in Vietnam," the Times reported in 1967, "Fortas is consulted more and more on foreign policy. As one of Johnson's closest friends, Fortas's instinct for making the wheels turn did not vanish when he donned the robe."

What the Times seemed to regard as a quaint exemplar of ranch-house politics takes on a more unsavory look in the light of at least one of the chores Fortas was apparently called upon to perform while he was a Justice. Early in 1967, Ralph Lazarus, president of the Federated Department Stores, predicted that expenditures on the war in Vietnam for the coming year would be some $5 billion over the President's public estimates. The next day Lazarus received a call from Justice Fortas, which the Times relates "was to transmit Lyndon Johnson's ire." Lazarus quickly recanted publicly confessing that he had probably been in error.

Fortas's self-defense on these important charges was extraordinarily weak. Asked about the advisability of Justices and Presidents consulting on important issues, he replied lamely, "I did not seek the post of Justice of the Supreme Court of the United States. It was not part of my life plan." Questioned about his call to businessman Lazarus, Fortas answered, "I am a Justice of the Supreme Court, but I am still a citizen." His failure to appear at a second set of hearings by the Senate Judiciary Committee could be explained by an unwillingness to put up with a few more hours of Strom Thurmond's self-indulgent venom-spewing, but it was still an insult to the Senate.

Although much more attention was paid in the press to Fortas's nomination than to Thornberry's, the real change in the decisions which a Fortas court could be expected to hand down would have depended ultimately on the way Thornberry voted.

If anything, Thornberry's case is more susceptible to charges of cronyism than Fortas's. In 1948, when Johnson joined the Senate, Thornberry became Congressman in Johnson's place. For fifteen years, until he retired to accept a District Judgeship in late 1963, Thornberry held the central Texas seat, and remained a good domino-playing friend of Johnson's. As a Senator, and later as Vice-President, Johnson often referred to him as "my congressman."

During the later part of his term, and particularly during the three years of the Kennedy-Johnson administration, Thornberry began to establish a reputation for himself as a "Southern moderate." He had voted against most of the watered-down civil rights measures of the fifties, and tended to vote with the "conservative coalition" more often than not during that time, but he avoided the rabid racism and extreme conservatism of the deep Southern block.

As a member of the key House Rules Committee under Kennedy, he enhanced his reputation as a moderate by being the only Southerner to side regularly with the administration. But he never declared himself in favor of the most important measure to come before the Committee during his tenure--the Civil Rights Bill of 1964. As administration representatives diplomatically put it, they hoped they wouldn't have to depend on the votes of Thornberry or any of the other "Southern moderates."

As a judge on the Fifth Circuit Court, Thornberry retained his image as a "moderate" largely by contrast with his peers. When Johnson appointed him to the Fifth Circuit, in 1965, he also appointed former Mississippi Governor J.P. Coleman, who drew all the fire from civil rights organizations for being a racist, and for having supported segregationist legislation during his term as Governor. Thornberry, in the shadows then as he has been this year, was quietly accepted.

The bland Times editorial this June supporting Thornberry's nomination referred to his Southern origin and his moderation four separate times, as if that unlikely juxtaposition would suffice to insure his vote for the forces of sanity and enlightment. The Times concluded that Thornberry's appointment would keep the Fortas court "firmly cemented into the liberal posture that was characteristic of the Warren court." One Southern legislator with a better conception of the meaning of "moderate" in the South commented simply: "It looks like a pretty good deal to me. Okay, so we let Fortas become Chief Justice. In return, we get a moderate on the Court."

The fear that a Nixon appointment may mark a turn away from the relative enlightenment of the Warren Court is certainly warranted. A Thurmond Court, say, could bring the Supreme Court firmly in line with a conservative administration and Congress. But the assumption that a Fortas Court, with Thornberry the moderate, would continue and build upon the work of the Warren Court is knee-jerk liberalism in the grand old style.

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