A Crony on the Court : ABE FORTAS <i> By Laura Kalman (Yale University Press: $29.95; 544 pp., illustrated) </i>
When President Lyndon Johnson nominated his close friend and longtime political associate Abe Fortas to be Chief Justice of the Supreme Court in 1968, it raised a lot of eyebrows in Washington. Fortas had been on the court since 1965, where he had generally formed a part of the Warren majority on civil-rights and constitutional-liberty issues, but his recognition in the corridors of the capital was not as a jurist, but as a crony of the President.
There was no major L.B.J. decision, it was generally agreed, that had not been at least discussed--if not cleared--with Fortas, whether the presidential response to the ghetto riots in Watts, Detroit and Newark, the advisability of a bombing pause in Vietnam, or the dispatch of American troops to meet a bogus communist threat in the Dominican Republic.
When Fortas appeared before the Senate Judiciary Committee for his confirmation hearings, some of the Senators opposed to the nomination wanted to know if this practice had continued while Fortas sat on the Supreme Court.
Fortas denied any contact with the President on a variety of matters, statements Prof. Laura Kalman, in this biography of Fortas, flatly calls “lies.” The pattern of dishonesty, Dr. Kalman says, included denials that Fortas ever had recommended a candidate for a judgeship or other public position (he was, she says, “among the White House’s most fertile sources of recruitment advice”). Further, Fortas said he had only had a limited role in counseling with respect to the Vietnam war (although perhaps only Secretary of Defense Clark Clifford had been more active in advising the President), and flatly denied having drafted L.B.J.'s response to the Detroit riots (he had).
This book is what is called an “authorized” biography. Kalman had access to family members and documents, the surviving members of his law firms threw open their files, and Carolyn Agger, Fortas’ widow, spoke often and freely--as did his many friends (and some “confidential” interviewees who were clearly not friends).
His friends and family must wish now they had not cooperated. Fortas’ reputation as L.B.J.'s “fixer,” first earned when he supplied the legal strategy that enabled Senate candidate Johnson to survive charges of ballot and electoral fraud in a Texas primary in 1948, stands up in the book. It was Fortas who thought to go to Justice Hugo Black, supervising the Fifth Circuit (which included Texas), for an order vacating a state court injunction which effectively would have kept L.B.J. off the ballot. It was smart law, and it proved successful, and Kalman cites a Fortas (and L.B.J.) detractor who thought Fortas must have been to see Black first.
There is plenty of material in this book to make that ugly charge seem, if not true, at least in character. One example should suffice. Fortas, according to the author, shared L.B.J.'s hatred of Robert Kennedy. Nothing else would have justified his behavior, as set forth here, in the curious case of Fred Black and J. Edgar Hoover.
In 1966, the Supreme Court--on which Fortas sat--declined to review a conviction for income-tax evasion of lobbyist Fred Black. Shortly thereafter, however, the Solicitor General advised the court that the FBI, in an unrelated criminal investigation, had bugged Black’s room at the Mayflower Hotel and recorded conversations between Black and his attorney. None of the information thus obtained, the memorandum said, had been used to convict Black.
The court then threw the FBI a nasty curve: It asked the Justice Department to file a memorandum giving legal authority for the microphone surveillance. The problem (as with other illegal FBI bugs such as those used to record Martin Luther King) was that the required authorization of then Attorney General Robert Kennedy had not been obtained.
Hoover, never one to let truth interfere where the reputation of the bureau was threatened, tried to get the Department of Justice to say Kennedy knew, or at least ought to have known. Attorney General Nicholas Katzenbach refused. So Hoover, anxious to get President Johnson to overrule Katzenbach, went through Fortas. He knew his man; Mr. Justice Fortas, according to Hoover’s faithful deputy Cartha DeLoach, not only agreed to talk to the FBI about the matter--behavior Kalman calls “clearly improper"--but he agreed to help cook the books against Kennedy. He even confided to the FBI that the court had met on the Black case and agreed to hear testimony on the bugging. Fortas offered to take the FBI “facts” to President Johnson and persuade him to appoint a special arbitrator to hear the evidence and report his “verdict” to the court.
This extraordinary revelation--that a sitting Supreme Court Justice connived with a government agency to persuade his friend, the President, to appoint an arbitrator who would shield the FBI and damage a political opponent by providing the court with false information--is surely the high point of this well-researched and insightful book.
The picture of Fortas that emerges is a strange one. We hear and read of his devotion to civil liberties--sometimes at considerable risk and cost. We read of his substantial impact on a whole range of New Deal issues as one of the really bright and dedicated young men who came to Washington in the ‘30s to save capitalism and the American Dream through the New Deal. But we also read of truly unpleasant behavior, to colleagues and underlings.
Kalman’s book is not quite a chronicle of a typical Washington life. There is success here, and achievement, and the smell of power. But at nearly every stage of his life, Abe Fortas seems to have been, as the British say, “too clever by half,” and it did him in.
Even in Washington, the driven capital, integrity seems to matter.