Posted by: distributorcap | July 16, 2009

60s Thursday – Friends in High Places

On October 4, 1965, Abe Fortas was sworn in to one of the most select jobs in America – one of nine justices on the U.S. Supreme Court. Justice Fortas’ road to the bench and his tenure on the Court was one of the rockiest and most controversial in recent history. Sonia Sotomayor should take note that Fortas’ treatment was (in many ways) precedent for her current confirmation. In the end though, Abe Fortas turned out to deserve that treatment – as his actions bordered on the edge of (or rather crossed over into) improper.

Fortas, the son of an orthodox Jew, was born in Memphis, Tennessee. He attended Rhodes College in Memphis and then Yale Law School – where he was editor of the Yale Law Journal. Fortas’ became a professor at Yale, and then headed to Washington. While working in the Roosevelt Administration in the 1930’s, he met Texas Congressman Lyndon Johnson. It was a relationship that would both serve him well and poorly during his career.

When Johnson decided to run for the US Senate seat in Texas, he first had to enter and win the Democratic primary (which at that time was as good as winning the seat). His razor thin 87-vote margin of victory over Governor Stevenson caused his opponent to allege corruption in the electoral process. Stevenson went to court, to prevent Johnson from appearing on the general election ballot. Abe Fortas persuaded Supreme Court Justice Hugo Black to overturn the lower court’s ruling. Johnson went on to win the Senate seat. (As a note, Johnson’s campaign manager in that controversial election was none other than “magic bullet” John Connally). It would not be the last time that Abe Fortas helped save Lyndon Johnson’s political standing.

Fortas became well-known for representing Clarence Earl Gideon’s appeal before the Supreme Court in Gideon v. Wainwright. In one of the most important cases in US legal history, the Supreme Court ruled in favor of Gideon (and hence Fortas), requiring states to provide counsel for defendants unable to afford their own attorney.

In 1965, President Johnson, who was beginning to implement some controversial programs via the Great Society (which included Medicare) wanted to insure he had an ally on the Court (just in case). To gain that influence, Johnson persuaded (some say he actually pushed) Arthur Goldberg to resign from the Supreme Court by naming him UN Ambassador. Johnson then appointed his longtime friend, Abe Fortas. At first Fortas told Johnson he did not want the job, but reluctantly he accepted it. In what has to be some form of conflict of interest – Justice Fortas wrote President Johnson’s 1966 State of the Union address.

Abe Fortas was a reliably liberal vote on the Court. One of his most important opinions led to banning religious based creationism from public schools. He also believed in the power of the executive at the expense of the legislative.

In June 1968, Chief Justice Earl Warren announced his retirement. On June 26, while the country was reeling from the recent assassination of Robert Kennedy, lame-duck President Johnson nominated Fortas to replace him. For Fortas’ seat – Johnson nominated Homer Thornberry.

I what proved to be very bad precedent – Abe Fortas became the first sitting Justice to appear before the Judiciary Committee. Conservative senators (including Southern Democrats) despised the liberal leanings of Fortas and threatened to filibuster. It was their chance to pounce. It also didn’t help that Fortas lied to the Judiciary Committee about receiving some fees – and then got caught. There were also some whiffs of anti-Semitism.

The grilling of Fortas was harsh. Many questions revolved his close relationship with President Johnson (interestingly enough, barely a blink of conflict of interest was registered when Scalia went hunting with Cheney 30+ years later). Also brought to light was Fortas’ acceptance of speaking fees – with money that came from private companies and former partners. The $15,000 in fees was considered excessive and improper – mainly because they represented 40% of a Justice’s salary at that time (which meant a Supreme Court Justice earned $37,500 in 1968).

Johnson had to go to bat for Fortas. At that time, cloture (to shut off debate in the Senate) was 67 votes (today it is 60). Johnson knew he couldn’t get that – but thought a simple majority would help him save face. The vote was 45-43 (12, all Democrats, were not present) – despite the majority vote, Fortas’ nomination was through. Many Senators at that time also felt they didn’t owe Johnson a thing. Shortly afterwards, Fortas withdrew his nomination for Chief Justice.

Fortas remained on the bench, but a financial payoff and money-for-pardon scandal soon implicated Fortas. When Richard Nixon became President in January 1969, the new Attorney General – John Mitchell (who would later be embroiled in his own scandal with Nixon, and served time in prison) – persuaded Fortas to resign before he was impeached. Abe Fortas left the Supreme Court in May 1969, and went back to private practice. Nixon went on to appoint Warren Burger as Chief Justice.

Abe Fortas died in 1982.


  1. Wasn't John Mitchell married to Martha Mitchell?She's the gal who used her phone to essentially pre-live blogged from her bedroom and told of men coming in wearing masks who injected her with something.She mysteriously contracted fatal cancer and was dead with a few weeks.

  2. yes she was married to mitchell – nixon famously said the david frost that there would have been no watergate without martha mitchellmartha also has a syndrome named after her – the martha mitchell syndrome"Martha Mitchell syndrome – when a psychologist, or other mental health clinician mistakes the patient's perception of real events as delusional"

  3. Why did the Nixon administration want to silence her?Was it her knowledge of the Nixon administration's expansion of Vietnam or its role in Watergate?

  4. Say what you will about LBJ, but he was a strong Democrat who would mow down any Republican who dared to take him on.We need more men and women of his character on our side. He may have been a bastard, but we need more Democratic bastards right now.

  5. I do admire LBJ's, er, persuasiveness, but I still believe he knew about the upcoming JFK assassination. I feel like that event opened the door to the Vietnam mistakes. JFK wouldn't have made those mistakes; he didn't have quite the hubris that LBJ had.

  6. Christopher – You must remember that was a time when people (except a few) were more honest. As I recall Martha had a bit of a drinking problem but it didn't seem to distort her understanding or knowledge of what was going on. It wasn't about Vietnam. That info was well buried. The focus was Watergate.I recall one night watching the evening news when a reporter finally asked her who was involved in the break in and how high up did it go. And almost in a as a matter of fact manner she told them. "You know this goes all the way to the top." She then started to name names.

  7. Hi Karen;After JFK's assassination and when LBJ was sworn in, I was a kid, but the thought entered my mind that he had something to do with his predecessor's early demise.I never trusted him after that although there is no fact to back it up, only a kid's perception.

  8. i'm with zippy. we could use a few lbjs these days. however, i don't know if that's even possible. i doubt lbj would have been able to get away with some of the stuff he got away with if there had been 24/7 news stations and the internets back posts like this one, dcAp. the back stories are always interesting.

  9. LBJ had zero to do with JFK's murder. He was a bastard but he was too much of a Democrat to kill a fellow D.P.S. D-Cap I left you a little surprise at Chez Zipdrive. Enjoy.

  10. I remember this too, Demeur.She knew everything, and thus had to be "done in."This was my intro to understanding Rethuglican xianity.It's never been refuted.Thanks for this recap, Dcap!SP.S. Russ Baker's Bush's Family of Secrets has a few words on LBJ's role in JFK's assassination that might surprise you.

  11. This was great DCap. It tied a lot of things together quite well. I remember most of the basic premises, as I am an old bitch, but your article brought them all together for me.

  12. This was an interesting post. As for Johnson, he certainly was a mixed bag. He was corrupt and a war criminal, but he cared more about poverty and domestic civil rights than anyone in the White House after him.LBJ certainly is the most logical and credible suspect in the JFK assassination. He benefited tremendously from it. There were a lot of rumors about dead bodies in Texas when Kennedy chose Johnson for VP.

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