The Congress: The Fortas Film Festival

Berating the U.S. Supreme Court used to be the fairly exclusive pastime of racists and other right-wing extremists. Now it has become a more popular preoccupation. Many people who think that U.S. society is somehow sick tend to blame the court for much of the rise in crime, the loosening of morals, the racial conflict and the general air of permissiveness. Most of those complaints have welled up in the acrimonious debate in the Senate over Lyndon Johnson’s nomination of Abe Fortas to become the nation’s 15th Chief Justice. Last week the argument grew angrier, and opposition to Fortas stiffened. As the fight moved toward a climax within the next two weeks, it seemed likely to increase the divisiveness in the land and become an important campaign issue.

Darkened Offices. The fight against Fortas was stepped up on two fronts. One was being carefully led on the Senate floor by Michigan Republican Robert P. Griffin. The other was pressed within the Senate Judiciary Committee by Republican Strom Thurmond, the gentleman Torquemada from South Carolina. Thurmond continued to ham mer at an emotional, if elusive issue: pornography. He condemned the fact that Fortas had voted with the court majority in a 5-to-4 decision holding that a Los Angeles exhibitor did not violate the law with his raunchy films. The ruling made it easier for U.S. exhibitors to show films featuring total male and female nudity.

Day after day last week, Thurmond buttonholed his colleagues to watch the films in darkened Senate offices. One aide of Richard Nixon called it “the Fortas Film Festival.” The Senators were not titillated but shocked, and they left the showings in a grim mood. The screenings apparently swayed some votes away from Fortas. Senators know that middle-class opposition to pornography is rising, and the subject—like the Supreme Court itself—has become a symbol of what is wrong in the U.S.

It mattered little that nobody really knew what Fortas thought about the films. The court judgment involving them was one of the many per curiam decisions, which do not require Justices to write their opinions. In an obscenity case, what is often at issue is not the merits or demerits of the film, but the manner in which it was seized, the legality of the prior court action, and the definition of obscenity in the individual situation. Definitions have been vague ever since the landmark Roth decision of 1957, eight years before Fortas was appointed an Associate Justice. That decision established several broad criteria of tolerance, all of which have created problems of interpretation.

Fortas’ interpretations vary, depending on the case. In 1966, he voted with the 5-to-4 majority to uphold the conviction of Eros Publisher Ralph Ginzburg on grounds that he pandered to prurient interests by using overly suggestive advertising. But that did not make much of an impression upon Eastland, Thurmond and critics even farther to the right. In a large mailing, the fanatically right-wing Liberty Lobby accused Fortas of being a convinced revolutionary and a supporter of the pornography industry.

Fat Free. Fortas was asked to appear before the committee for still another grilling last week, but he declined. Convinced that they had done sufficient damage to torpedo Fortas, the opposition forces on the committee agreed to send the matter to the Senate floor this week. There it will run into trouble—and not only on the pornography issue. The skillful managers of the case against Fortas, notably Senator Griffin, saw to it that new revelations about the Associate Justice were brought out almost every day. More doubts were raised by a disclosure last week that Fortas had accepted $15,000 for 18 hours of summer-school teaching at American University’s law school. Though some other Justices accept fees, there is an ethical question about whether they should. What aggravates the question of Fortas’ particularly generous fee is that it was donated by five big businessmen who some day may well have matters of interest come before the court.

Other questions about Fortas nagged the Senators. The objections to his role as Lyndon Johnson’s backstairs adviser were heightened by reports that Fortas had substantially rewritten a first version of the President’s 1966 State of the Union Message. Some Senators were also bothered by the fact that Chief Justice Earl Warren had not really resigned, but has only opted to retire if and when a successor was agreed upon. Republicans, scenting victory in November, thought that was a ploy to prevent Nixon from naming his own Chief Justice.

No Withdrawal. With all that, Republicans and Southern Democrats were in a strong position to block the appointment with a filibuster. Hubert Humphrey challenged Richard Nixon to call Republicans off the filibuster, so that the case could come to a vote, which Fortas would probably win. Nixon refused, but tried to steer a middle course that would not overly displease either liberals or conservatives. He called Fortas an able jurist, expressed his own distaste for a filibuster, but said that he did not want to interfere with a Senate matter.

Minority Leader Everett Dirksen, who favors Fortas and opposes the filibuster, despairs of the outcome. He estimates that 50 Senators will vote against shutting off debate, leaving far fewer than the two-thirds needed for cloture. After two failures on a cloture vote, Majority Leader Mike Mansfield is likely to withdraw the nomination, and the court will open its new session next month with Warren back on the bench.

If that happens, Johnson will be further humiliated, the status of Fortas diminished, and the reputation of the court further tarnished. Equally important, members of the court in the future may be reluctant to take unpopular stands, lest they lose the chance to become Chief Justice. Since Fortas’ chances seem so hopeless, some friends have recommended that he withdraw his nomination. The embattled jurist has not done so, and plans to fight to the end.