Democrats can learn from the Abe Fortas Case
Mother Jones, a magazine that has taken up the mantra of tut-tutting neoliberalism and run with it, has published an article that claims that it is a “liberal fantasy” to think of impeaching Brett Kavanaugh. The writer of the piece is their correspondent for covering the court, Stephanie Mencimer, so presumably she knows what she is talking about. This is her “wake up to the coffee” graf:
It’s never going to happen. If the Democrats can’t stop Kavanaugh’s confirmation in the Senate, there’s no way they’re going to be able to boot him from the bench after he’s secured his lifetime appointment. No Supreme Court justice has ever been successfully impeached and removed by Congress. The last time Congress even tried was in 1804.
This, for Mencimer, disposes of the issue. Then she goes on to troll a bit how we don’t appreciate an “independent judiciary” anymore, like the elite slaveholders who founded the U.S. did.
Well, I have many bones to pick with the last part, but it is the first part I would like to direct my vitriol to.
Liberals would do well, at this point, to look to the Republican-directed pressure that was put on justices from the Warren court. One case stands out: Abe Fortas
When Abe Fortas died in 1982, his obituary was featured on the front page of the NYT. Since that time, his story has slipped into the national amnesia, save for that part of the national brain that consists of the Federalist society and its groupies. You could date the rightward shift, and the organization of one of the most powerful but underrated forces in the U.S., conservative legal activism, from the nomination of Abe Fortas by Lyndon Johnson to the post of Chief Justice, after Earl Warren stepped down.
Here’s the obituary thumbnail:
Mr. Fortas resigned from the Court amid an uproar over disclosures that he had accepted a $20,000 fee from a foundation controlled by Louis E. Wolfson, a friend and former client who at the time of the payment was under Federal investigation for violating securities laws. His resignation ended a stormy three-and-a-half-year tenure on the Court, which included an abortive effort by President Johnson to name him Chief Justice, and made Mr. Fortas the only Justice in the history of the Supreme Court to resign under the pressure of public criticism.
This happened in 1969, giving Richard Nixon his opportunity to put his impress on the Court.
So how did this happen?
In 1965, when LBJ nominated Abe Fortas, the editors of the New Republic commented:
When the President nominated his friend Abe Fortas for the Supreme Court, he was rewarding Mr. Fortas’ long-held, passionate faith in the statesmanship and liberalism of Lyndon B. Johnson – a faith not widely held or easily maintained in liberal and intellectual circles ten or even five years ago. But the President was able to reward a friend while at the same time appointing one of the ablest lawyers of his generation, and a lawyer who takes an exalted view of the court he is about to join. Little more than a year before his nomination and subsequent confirmation by the Senate, Mr. Fortas wrote of the court while paying tribute, in the Yale Law Journal, to another old friend. Justice William O. Douglas. “A man may live a long and active life – even in the aquarium of public office – without revealing and, indeed, without discovering his essential convictions. There are many hiding places; there are many factors which invite avoidance of this painful confrontation: the pressures of too little time; the exigencies of the moment; the rationalization engineered by the overwhelming virtue of self-preservation; the primacy of the need to accommodate one’s views to those of others; the driving need for immediate results.
Fortas here was worshipping at the idol of the lifetime appointment – the foundation of the “independent judiciary” so beloved by the Mother Jones correspondent. These words seem a little strange to us now: they speak more of a Straussian belief in the white lie, as the rulers nudge us into what they want us to do, then a faith in democratic forces and the wisdom of the crowd.
So what happened when Fortas was nominated to be Chief Justice in 1968 and the aquarium of public office was hurled at his head?
Fortas’s downfall was engineered by two deeply racist Dixiecrats, James Eastland of Mississippi and Strom Thurmond of South Carolina. We can follow the story in further New Republic editorials:
Senator Strom Thurmond of South Carolina, who after the GOP convention must be reckoned a power in the Republican Party and in the country, told his delegation at one point in Miami Beach that if it held firm for Nixon he (Thurmond) would be mightily encouraged in his battle against the Fortas nomination. Shouts and handclaps greeted his assurance to the Carolinians that “We hope to defeat Mr. Fortas’ confirmation” and “If we can defeat this confirmation, in my judgment it will be a turning point in this nation.
Strom was right. The Fortas hearings were all about how buddy-buddy Fortas was with LBJ. This might not seem like a reason to deny him the seat, but it was the excuse for what Eastland and Thurmond really wanted – a thoroughgoing excoriation of the Warren court and all its deeds, the worst of which, for the two racists, was the legal crushing of the idea that blacks were second class citizens forever and ever. But this motive, as always in the South, was merged with the idea that it was all the fault of the communists. As Thurmond said on Meet the Press:
… his decisions have turned loose criminals on technicalities; they have allowed communists to teach in schools and colleges; they have allowed communists to work in defense plants and his decisions have reversed the local communities and the lower courts on the matter of obscenity.” And: “We [of the Senate Committee] are not trying him for impeachment but we are trying him (sic) to determine his qualifications to be Chief Justice and we think his decisions on the Court, in the way I have related them, show that he is not qualified to be the Chief Justice. In fact, I don’t think he is even qualified to be on the Court.
Evidently the Republicans of Thurmond’s day disagreed with the Collins doctrine that Senators should not look at the ideology of candidates. I think that is a rule that is only evoked for far right wing candidates, anyway.
Abe Fortas remained on the Court after the battle of 1968. His downfall was coming, though, especially when the Thurmondesque president, Richard Nixon, was elected. I would recommend reading an excellent Washington Post piece dated May 16, 1969, the chronology of Fortas’s downfall was unfolded. It started when William Lambert, a Life Magazine reporter, received a tip from anonymous government official that he should look into the relationship between Fortas and a crooked businessman named Wolfson, recently imprisoned for stock manipulation (yes, Virginia, at one time they actually imprisoned crooked businessmen, instead of bailing them out with huge loans).
Word spread in D.C. The news must have made John Mitchell, the new Attorney General, smile a bit and puff a bit more on his pipe. Mitchell, somehow, didn’t have compunctions about the fantasy of getting rid of a sitting Supreme: he saw how he could catch a rat and went about it. An assistant Attorney General interviewed Lambert. And the Life news story came out with information about the 20,000 dollars given Fortas by the “charitable” foundation set up by Wolfson.
The Republicans went on the attack in the House, while in the Senate Ted Kennedy said this was a very serious charge. It should be noted that Fortas’s friendship with LBJ would not make him a friend of the Kennedies.
On May 6, Nixon met with the Republican caucus and urged them (to repressed giggles, no doubt) not to make Fortas a partisan matter. One of the attendees asked if there was more on Fortas to be discovered. To which Mitchell gave the one word answer: yes.
On May 10, Mondale was the first Senator to suggest Fortas resign. The Republicans must have been happy about that. In the house, H.R. Gross of Iowa (GOP) called for empaneling a Federal jury to make a sweeping investigation of Fortas. But in the end, Fortas’s resignation brought him relief from the hounds.
This is a story about Democrats running water for the Republicans. There will not be a similar scene if the Dems take the house, and Representative Nadler really investigates Kavanaugh. But Democrats can take some hints from the Fortas affair. Leak to the press. Keep the pressure up. And use the power you have to call for a larger investigation of the Justice. If you don’t get him to resign, you can wound him to the extent that the Supreme Court will definitely start smelling of illegitimacy. Because… the Supreme Court is illegitimate. It is the result of sheer brute political strength, exerted by the GOP. As an arm of the Republican party, the respect one should, theoretically, have for an “independent judiciary” is simply a farcical exercise in swallowing the dictates of the D.C. elite and pretending it is some kind of civic duty. Our civic duty, at this point in time, is the exercise of countervailing power, civil disobedience, and protest at the Court. Probably for a long, long time.
Roger Gathmann, editor of Willett’s Magazine, is a writer living in Paris.