The Senate: The Fortas Defeat

When Abe Fortas was nominated last summer as Chief Justice of the U.S., few doubted that he would win swift approval. He had, after all, already been before the Senate and been confirmed as an Associate Justice, and even Fortas’ critics acknowledged that his is one of the nation’s best legal minds. Gradually, however, opposition mounted, partly because confident Republicans wanted to name a new Chief Justice themselves come January. The most senous argument against Fortas was that he remained a close adviser to Lyndon Johnson after joining the court. There was also Fortas’ imprudence in recently accepting $15,000 for 18 hours of lecturing at American University.

Fortas finally became the hapless focus of conservative unrest over court decisions on pornography and the rights of criminal suspects. The attack developed into an assault on the whole Warren court, impairing its prestige severely in the process (see THE LAW). Last week the nomination that once looked like a sure thing went down to an embarrassing defeat.

Constitutionally Tragic. “Never in our history,” cried Michigan’s Democratic Senator Philip Hart, “has a matter of the nomination of a Justice to the Supreme Court been resolved by a filibuster.” But shortly after Hart spoke, the Senate refused to cut off debate on whether it should even take up the Fortas nomination, thereby killing his chances. The vote was 43 against cloture to 45 in favor—14 short of the two thirds needed to stop the anti-Fortas filibuster.

Next day, at Fortas’ request, Lyndon Johnson withdrew the nomination. It was a profound humiliation for the President. Said Johnson: “The action of the Senate, a body I revere and to which I devoted a dozen years of my life, is historically and constitutionally tragic.” Johnson was referring to the fact that the Senate had never actually voted on the merits of the nomination, only on the procedural question of giving it formal consideration. All but forgotten was another loser in the affair: Homer Thornberry, who was to have replaced Fortas as an Associate Justice on the court. Since Fortas will now keep his own seat, there is now no room for Thornberry; his nomination lies in a legal limbo.

The Fortas defeat was a notable victory for Michigan Republican Robert Griffin. As leader of the anti-Fortas fight, Griffin had taken to wearing on his lapel a golden miniature of the mythological beast that is his family’s namesake. In the legends of ancient Greece, a griffin had the body of a lion and the head and wings of an eagle, and served to guard the gold of the realm. Griffin’s wife recently told him: “You are opposing the President, the Supreme Court, the minority leader of the Senate, the majority leader of the Senate and the American Bar Association. Who do you think you are?” In reply, Griffin only smiled. In fact, at the end, Griffin even forced Minority Leader Everett Dirksen to abandon his original support of Fortas’ nomination. Two weeks ago, when he recognized that Griffin had enlisted a solid majority of Senate Republicans against Fortas, Dirksen abruptly reversed himself.

Determined to Persevere. The President now has several options open to him. He could wait until January, when the new Congress has convened and just before his own term expires, to confer with the congressional leadership and offer a noncontroversial nominee. He could nominate a Senator like Hart. He could appoint another nominee immediately, before the Supreme Court gets far into its new term. Among the other names currently bruited about in Washington, though with no real conviction that any will be submitted: former Associate Justices Tom Clark and Arthur Goldberg, Defense Secretary Clark Clifford, Treasury Secretary Henry Fowler and Viet Nam Negotiator Cyrus Vance.

One thing at least was clear: Fortas aims to stay on the court to vindicate himself, if for no other reason. When Arthur Goldberg spoke at a New York University convocation last week, he said that his wife Dorothy had telephoned Fortas after the Senate vote. During the conversation, Dorothy Goldberg had quoted Benjamin Franklin: “We must not in the course of public life expect immediate approbation of our services. But let us persevere through abuse and even injury.” Midway through his own 40-minute speech on the 14th Amendment, Fortas won an ovation when he turned to Gold berg and declared: “Tell Dorothy that so far as I am concerned, I shall persevere.”