Fortas at the Bar

For congressional opponents of the Supreme Court, it was a moment of high satisfaction. Never before had a Chief Justice-designate been grilled by a Senate committee. Never before had there been so dramatic an opportunity to voice criticism of the Warren court. For Abe Fortas, the confrontation must have been an occasion of particular pain. After four days of hearings before James Eastland's Senate Judiciary Committee, it was plain that the most serious impediment to his confirmation as 15th Chief Justice of the United States may prove to be his friendship with Lyndon Johnson.

The issue of "cronyism" seemed to overshadow all others. As Fortas described it, his role as presidential adviser has been grossly exaggerated. While he was indeed called in on "a few critical matters," most notably Viet Nam and the Detroit riots, he said that his role was not to shape policy but to synthesize the arguments of others in clear legal style. "My function," he noted, "has been to listen to what is said . . . then to sum up the arguments on the one side, the considerations on the other."

Never, Never. At no time since he was appointed Associate Justice, he said, had he discussed with the President any matter relating to the court. "I have never, never," he declared, "been asked by the President, nor have I expressed my views on any pending or decided case--never, never."

Yet even the limited role described by Fortas troubled many, including liberal friends. He admitted, for instance, that 21 months after donning the judicial robes, he had called a businessman friend, Ralph Lazarus, chairman of the board of Federated Department Stores, to chide him for questioning Administration estimates of war spending. Fortas refused to say whether Johnson had instigated the call, thereby leaving the impression that he had.

Somewhat taken aback by the attention given the cronyism issue on the first day, Fortas came prepared for the second with an annotated list of 14 previous Justices who had advised Presidents. The first Chief Justice, John Jay (1789-1795) counseled George Washington.* The fifth, Roger Taney, helped Andrew Jackson. Associate Justice David Davis, Lincoln's close friend and executor, advised the Civil War President, while Louis Brandeis was called in by Woodrow Wilson during several World War I crises. Chief Justice Wil liam Howard Taft, in Fortas' words, "performed extensive advisory services for Presidents Harding, Coolidge and Hoover."

But Fortas failed to mention the dozens of other Justices who had not had intimate dealings with the White House. There are, in fact, no set guidelines for the relations between a Justice and a President. Obviously, as Senate Minority Leader Everett Dirksen points out, no Chief Executive will appoint an enemy to the bench. Just as obviously, no one expects a Justice to sever old friendships when he takes the oath. On the other hand, even open, formal service to the President--as distinguished from informal advice such as Fortas gave Johnson--has been criticized. Eugene McCarthy has faulted Johnson for asking Earl Warren to head the commission investigating John Kennedy's assassination. Chief Justice Harlan Stone refused Franklin Roosevelt's request to look into the vexatious problem of how the nation was to get its desperately needed rubber during World War II. Such an extracurricular duty, Stone wrote, exposes a Justice to attack and "indeed invites it," inevitably impairing "his value as a judge and the appropriate influence of his office."

Standin. Fortas' friendship with the President was not the only objection raised to his confirmation. For some, it was merely a screen to hide their real concern. Some Republicans, hoping for victory in November, do not want Johnson to name anyone to the court for the remainder of his term, since that might deprive a G.O.P. President of the chance to select his own man. Many Southerners dislike the activist trend of the court altogether and see Fortas as a too liberal successor to Warren. As Mississippi's John Stennis complained, "He has clearly shown his alignment with the liberal bloc and has often provided the fifth vote in the all too numerous 5-to-4 decisions by which the court has asserted its assumed role of rewriting the Constitution."

Pursuing that line with unrelenting tenacity, South Carolina's Strom Thurmond spent more than four hours denouncing decisions that have guaranteed the rights of criminal defendants. Rasped Thurmond: "Mallory! Mallory! I want that word to ring in your ears. Mallory! A man who confessed to a crime, and the court turned him loose on a technicality." In this instance, Fortas served as stand-in for the whole phalanx of Supreme Court predecessors. Mallory v. U.S., one of several cases that have brought full constitutional protections to defendants, was decided in 1957--eight years before he reached the bench.

At another point, Thurmond went to the heart of his complaint--namely, that the court's guarantees of defendants' rights sometimes permitted the guilty to go free along with the innocent. "Aren't you after getting the truth?" he demanded. "What difference does it make if there is a lawyer present or not? What difference does it make if you get the truth?" Fortas replied that the difference might be the Constitution. By the time Thurmond got to loyalty oaths, Fortas was beyond surprise. "Do you think," asked the South Carolinian, "that the parent of a child who has a Communist for a teacher has reason to be concerned?" Reply: "Oh, Senator, I can't answer that."

With "the greatest regret," Fortas refused to answer more than 50 of Thur mond's 100-odd questions, on the ground that the legislative branch must not interfere with the judiciary. "I tell myself every morning," he said, " 'You are not participating in this hearing as Abe Fortas. You are participating as an Associate Justice of the Supreme Court.' I cannot, I will not be an instrument by which the Constitution's separation of powers is called into question." When Homer Thornberry, Johnson's nominee for Associate Justice, was called to testify, he followed Fortas' example by refusing to comment on decisions that he had participated in as a judge of the U.S. Court of Appeals.

Only once did Fortas show anger. That was when Thurmond asked whether Fortas agreed that the Supreme Court was "the principal reason for the turmoil and air of revolutionary conditions that prevailed in Washington." After a long pause in which he was obviously trying to contain himself, Fortas merely said "No."

A Problem of Time. Fortas' real problem is not so much votes as time. He would almost certainly receive the simple majority he needs if the Senate were to vote now. But Congress is about to adjourn for the Republican Convention. Many Senators will be reluctant to return to Washington in the midst of the campaign, which might enable a small but determined group to mount an effective filibuster that could conceivably kill his confirmation. At any rate, it is possible that when the court begins its new session in October, the filibuster will still be running, and the 14th Chief Justice, Earl Warren, will still be presiding.

*And ran twice for Governor of New York while he was on the court.

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