Abe Fortas

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Image:Abe fortas hand in air.jpg Abraham Fortas (June 19, 1910 – April 5, 1982) was a U.S. Supreme Court associate justice. He served in that role from October 4, 1965 until May 14, 1969, when he resigned under pressure.

Fortas was born in Memphis, Tennessee. He was the youngest of five children. His father, a native of England, was an Orthodox Jew who worked as a cabinetmaker. Abe Fortas acquired a life-long love for music from his father, who encouraged his playing the violin, and was known in Memphis as "Fiddlin' Abe Fortas". He attended public schools in Memphis, and graduated from Southwestern (later known as Rhodes College) in 1930.

Fortas left Memphis to enroll in Yale Law School. He graduated second in his class in 1933 and was Editor in Chief of the Yale Law Journal. One of his professors, William O. Douglas, was impressed with Fortas and arranged for him to stay at Yale and become an assistant professor.

Shortly thereafter, Douglas left Yale to run the U.S. Securities and Exchange Commission (SEC) in Washington, DC. Fortas commuted between New Haven and Washington both teaching at Yale and advising the SEC.

He served as general counsel of the Public Works Administration and as Undersecretary of the Interior during the Franklin D. Roosevelt administration. While he was working at the Department of the Interior, the Secretary of the Interior, Harold L. Ickes, introduced him to a young congressman from Texas, Lyndon Johnson.

After leaving government service, Fortas started the firm Arnold, Fortas & Porter. It became one of Washington's most influential law firms.

In 1948, Lyndon Johnson ran for the Democratic nomination for one of Texas' seats in the US Senate. He won the primary by only 87 votes. His opponent convinced a federal judge to issue an order taking Johnson's name off of the general election ballot while the primary results were being contested; there were serious allegations of corruption in the voting process, including 200 Johnson votes that had been cast in alphabetical order. Johnson asked Fortas for help, and Fortas persuaded a U.S. Supreme Court Justice, Hugo Black, to overturn the ruling. Johnson became a U.S. Senator, winning the general election.

In 1962, Fortas was asked to represent Clarence Earl Gideon's appeal before the Supreme Court. Gideon, a poor man from Florida, had been convicted of breaking into a pool hall. He could not afford a lawyer, and none was provided for him. Fortas and a team of attorneys from his firm spent months preparing the appellate brief, and won a unanimous decision from the Supreme Court for Gideon. This decision, Gideon v. Wainwright, solidified the constitutional right of criminal defendants to have legal counsel when charged with serious offenses.

In 1965, Lyndon Johnson, now President, persuaded Supreme Court Justice Arthur Goldberg to resign his seat to become Ambassador to the United Nations. He then appointed his longtime friend, Abe Fortas, to the court. On the Court, Fortas was a reliable liberal, authoring the notable opinion in 1969's Tinker v. Des Moines School District accepting the rights of schoolchildren to wear black armbands to protest the Vietnam War. His effort to overturn public drunkenness laws failed, however, as the Court upheld such laws in 1968's Powell v. Texas.

When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Fortas to replace Warren as Chief Justice. However, the Warren Court's far-reaching interpretations of the Constitution had angered many conservative members of the United States Senate, and the nomination of Fortas, who was generally a reliable liberal vote on the Court, provided the first opportunity for these senators to register their disenchantment with the direction of the Court.

Also controversial was Fortas's acceptance of $15,000 for speaking engagements at the American University law school. While not illegal, the size of the fee raised much concern about the court's insulation from private interests. Fortas also faced hostile questioning about his relationship with Lyndon Johnson while on the Court. At his confirmation hearing, Fortas denied continuing as an advisor to Johnson, though White House tapes now prove this to be untrue, as Johnson consulted with Fortas about political matters frequently while Fortas was on the Court.

Fortas's nomination resulted in a five day filibuster led by Republicans and conservative southern Democrats ("Dixiecrats"). A cloture motion to end the filibuster failed. At that time, 67 votes were needed to stop debate (it is now 60). The vote was 45-43, with 10 Republicans and 35 Democrats voting for cloture and 24 Republicans and 19 Democrats voting against cloture. The 12 other Senators, all Democrats, were not present. Fortas then withdrew his name from consideration. The next president, Richard Nixon, a Republican, appointed Warren E. Burger as Chief Justice.

Fortas remained on the bench, but in 1969, a new scandal arose. Fortas had accepted a secret $20,000 retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. Fortas signed a contract with Wolfson's foundation; in return for unspecified advice it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life). Wolfson was under investigation for securities violations at the time and expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon; Fortas denied that he ever helped Wolfson. Wolfson was convicted of violating federal securities laws later that year and spent time in prison, and Fortas returned the retainer. When Chief Justice Earl Warren was informed of the incident by the new Attorney General John N. Mitchell, he persuaded Fortas to resign to protect the reputation of the Court. President Nixon appointed as his replacement Harry A. Blackmun.

Rebuffed in the wake of his fall by the powerful Washington law firm he had founded, Fortas founded another and maintained a successful law practice until his death in 1982.

Fortas was the author of Concerning Dissent and Civil Disobedience.

In 1939, he married Carolyn E. Agger, a successful tax lawyer. They had no children.

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Returning to the news in 2005

In 2005 Abe Fortas again became a focus of controversy as the Republicans considered changing Senate rules to eliminate filibusters of judicial appointments, a plan referred to as the "nuclear option." Democrats cited the Fortas filibuster as a precedent for their more recent filibusters. Republicans pointed to differences between the events of 1968 and the Democrats' policy of judicial filibusters during the Bush presidency. For example, Republicans cited judges that were filibustered in 2005 who had clear majority support, while Fortas had 45 votes in his favor in the 1968 cloture vote that followed five days of debate. The 45 votes was a majority of the votes cast, but not a majority of the Senate as a whole. Democrats responded by pointing out that a number of Senators were absent on the day of the cloture vote and contemporaneous whip counts showed a clear majority vote for the nomination. They also pointed to the statements of leaders of the 1968 filibuster showing clearly that they believed they would lose a straight up-or-down vote.

Ultimately, there is no way to know how many votes any filibustered nominee would have received had a vote been taken. However, the filibuster tactic is normally used by one side when it is does not believe it will win a majority in a straight up-or-down vote.

Another difference Republicans cited between the 2005 filibusters and Fortas' filibuster is that Republicans filibustered Fortas with the intention that if they delayed his confirmation long enough, a Republican might win that year's Presidential election and could then appoint a conservative chief justice instead of the liberal Fortas. (A strategy that proved successful.) By contrast, when Democrats filibustered in 2005, they sought to block the appointment of judges that they deemed too conservative a full three years before the next Presidential election.

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