A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court
Long before his fall, when it seemed as if he and LBJ might roll on forever, Abe Fortas wasn’t your ordinary Supreme Court justice—not when he was gliding around Washington in his chauffeured Rolls-Royce. During the late 1960s justices of the Supreme Court were, as a rule, unseen and pedestrian—that is, they walked—but Fortas had that Georgetown house with the swimming pool. I saw it from the inside once and it was all it was said to be, with the “good” antique furniture and the valuable string instruments including a Guidantus and a 1740 dancing master’s fiddle given to Fortas by Mrs. Wurlitzer and performed on by Isaac Stern.
He had people like that in to dinner and he lived that way—not in a public, publicity-seeking manner, but you heard about him. Other members of the Court may have had as much money and lived like swells but if they did, they kept it to themselves. Fortas let it be known or it got out because he was so close to Johnson that people would pry.
He and his wife, Carolyn Agger, a skillful and enormously successful tax lawyer, lacked the prudence of anonymity. The wife of an associate justice does not brag that many of the expensive pieces of furniture in their house were given to them by their rich friends. A senator can get away with that but the members of the Supreme Court are the cardinals of the American political papacy. Thus William O. Douglas’s liking of young wives has hurt him, and Fortas’s presumed liking of money helped set him up to become the first justice to be forced to resign in disgrace and scandal.
How he ended up on the bench and how he got knocked off it is well told by Robert Shogan. The book suffers from the refusals of Fortas and the principals in the Nixon Administration to hold still for interviews. But by excellent reporting and good, clear, meat-and-potatoes writing Shogan tells us about as much as we’re going to know about this affair until memoirs are written, men die, and private papers are opened.
Amid the obloquy surrounding Fortas’s departure, when even his liberal friends in the Senate had given up defending him, it’s easy to overlook that this man isn’t another crumbbum of the sort Nixon strives to stuff the Court with. The fact that Fortas was so close to Johnson in advising him on Vietnam has hardly made him a sympathetic figure. The evidence is there for us to see Fortas as only another volpine Washington lawyer, who waxed fat on the lambs until Nixon came along and wolfed him down in his turn. It was, after all, Fortas who got LBJ safely through the ballot box stuffing charges in the 1948 Texas primary which put Johnson in the Senate and sent him winging. While he was winging, his lawyer Fortas represented him in everything from his television stations to getting Washington’s three newspapers to black out the Walter Jenkins story. Shogan tells us that it was Lyndon who brought Fortas in to defend his crooked pal Bobby Baker when the little fella first started getting in trouble with the law.
The clients attracted to the law firm of Arnold, Fortas & Porter made it redoubtable but not very admirable: Coca Cola, Lever Brothers, Western Union, the American Broadcasting Company, the Greatamerica Corporation, and Philip Morris. Such names obliterated the memory of earlier clients like Owen Lattimore and Clarence Earl Gideon. Few in Washington know or remember that Fortas defended Lattimore and other McCarthy victims at great professional risk for a lawyer who indisputably loves a dollar. He did it for free and did it when equally talented men like Edward Bennett Williams elected to represent Joe McCarthy.
The Gideon case involved no risk. In this instance Fortas was the Supreme Court appointed lawyer for the penniless Gideon, who was arguing that the state of Florida had unconstitutionally jailed him by trying him without a lawyer. He won the case, thus guaranteeing for the rest of us the right to counsel.
That was in the early Sixties and it would appear that by then Fortas had about all he wanted and would have been happy to float along the rest of his life on the cream of money and the pompous distinction that goes with being at the top of the law business in Washington. Because he was up there, semi-famous, rich, influential, deferred to, and far away from the boy from Memphis, Tennessee, the poor son of a poor pawnbroker and cabinetmaker.
If he’d stayed where he was he’d never have gotten into trouble. There are a lot of prosperous fat lawyers who have done worse than take money to fiddle with a charitable foundation set up by a man sent to jail for a technical violation of the Securities and Exchange Commission regulations. That’s all they ever nailed Fortas on, if you call that getting nailed. He was home free if he stayed put, but LBJ wanted him on the high court bench, wanted to take care of his old buddy, and Fortas was a lawyer wasn’t he, and doesn’t every lawyer want to be a Supreme Court justice?
Perhaps not Fortas. Shogan thinks Fortas genuinely didn’t want the job, but was sandbagged into taking it and ultimately ruining himself. He describes how, after Fortas had turned LBJ down several times, the President invited his old friend to the White House, ostensibly to hear him make a Vietnam speech, and then tacked on the end of it that he was appointing Abe Fortas, “a scholar, a profound thinker, a lawyer of superior ability and a man of humane and deeply compassionate feelings,” to the Court. He quotes Johnson telling Fortas in private just before he went on the air with the speech, “I’m sending fifty thousand boys to Vietnam, I want you to go to the Supreme Court.”
Better Lyndon had sent nobody anywhere, but it was done and at the time Fortas’s connection with Louis Wolfson couldn’t have seemed important. Wolfson wasn’t yet in trouble with the law, and if Fortas was getting a little on the side to pay the mortgage on his $250,000 house, well, William O. Douglas was getting it from another foundation just as Warren Burger would later pick up spare change from the Mayo foundation.
If Fortas did nothing more naughty than what is currently on the public record, he was, by current Washington ethical standards, guilty of nothing more than having picked in Louis Wolfson the wrong tycoon to take money from. Wrong, not in the sense that Wolfson is more of a crook, but because Wolfson was inept at keeping his rear covered.
You can’t help thinking that Fortas was merely unlucky, that he violated no operative Washington ethical standard. Look at the career of the hatchet man whom Mitchell assigned to collect the damning dossier used against Fortas—the dossier which John Mitchell appears to have taken to Earl Warren and which, from what we can guess, persuaded Warren to advise Fortas to quit.
This was Will Wilson, chief of the Justice Department’s Criminal Division. For six years prior to that Wilson worked for Frank Sharp, the central figure in Texas’s enormous bribery scandal which has convicted the speaker of the Texas House of Representatives and disgraced nearly every major politician from Governor Preston Smith on down. Wilson bought a block of stock that Sharp allegedly used to bribe a federal bank examiner. The former chief of the Criminal Division claims he was the unknowing “patsy” of the deal and is innocent of all wrongdoing. What is not in dispute is that during the time Wilson worked for Sharp his personal wealth increased from $500,000 to $1,300,000.
“Anytime you find a payment like that to a judge, you immediately want to find out more about it,” Wilson said of Fortas. The same holds true for chiefs of the Criminal Division of the Justice Department, but we’re not going to know more because Wilson was allowed to resign with honor and will not be prosecuted. Scarcely surprising when Richard Kleindienst, the Attorney General designate, has admitted in open court that he was offered a $100,000 bribe which for some days he failed to report to the proper authorities, who, we can presume, must have been sitting in the next office.
The Fortas affair can be kissed off as one of those minor Washington tragedies of a man with so much pride he didn’t think the rules applied to him. That may be Fortas. You can’t really tell from Shogan’s book, which isn’t an intimate biography but rather a history of how Nixon seized upon the discovery of the Wolfson relationship to force Fortas to resign and win himself the bonus of one more Supreme Court job.
Another way to read this story is as a measure of the tone of this town, of how raunchy it is. We’ve been trained by all the pop social science floating around to explain everything that happens as a matter of impersonal forces, pressures, and the historical laws. It’s the bureaucracy or the institutional setting, we say to ourselves, and assuredly it often is. But much more often than we want to admit, it’s just takin’ it under the table, dipping into the old cookie jar, simple greed and graft in America’s Second Gilded Age.