Despite an endless stream of bombshells, there was little novelty in the noxious confirmation fights involving Merrick Garland, Neil M. Gorsuch and Brett M. Kavanaugh over the last three years. They were simply the latest rounds of a long-running battle over the Supreme Court. Well before the term “Borked” became synonymous with the unorthodox steps taken to defeat Robert H. Bork’s nomination in 1987, the nomination of Abe Fortas — already a sitting justice — to become chief justice in 1968 established the template for the bitter confirmation battles mimicked by later generations.
Confronted with the threat of impeachment months after his aborted ascension, Fortas resigned from the court on May 14, 1969. Though renowned as an able jurist, he will forever be remembered as the only justice to resign under a cloud of scandal.
Fortas wasn’t blameless in his downfall. Questionable financial arrangements allowed his political enemies to orchestrate his ouster, but his misbegotten ethical choices weren’t what doomed him. As Chief Justice Earl Warren’s ideological heir, Fortas was the first casualty of a conservative counterrevolution that, in trying to seize control of the court over the next half-century, revolutionized the confirmation process.
On the 50th anniversary of his fall, the legacy of Abe Fortas’ nomination still looms over the nation.
It was a cruel irony that months before his undoing, he was on the verge of reaching the pinnacle of his career. When President Lyndon B. Johnson named Fortas on June 26, 1968, to replace Warren, congratulatory letters poured in from the capital’s elite.
They had good reason to be confident.
Fortas brandished stellar credentials. After graduating from Yale Law School, he worked in various New Deal agencies before establishing one of the nation’s preeminent law firms. Touted for guiding clients through Washington’s legal and political minefields, a colleague called him a “brain surgeon … the guy you call when all else fails.”
History also foretold his swift ascension. In a process largely devoid of ideological litmus tests and partisan wrangling, the Senate had confirmed all but one of 46 nominees from 1894 to 1967, mostly through voice votes, a procedure used to vote expeditiously and often unanimously. Hearings were usually brief and uncontroversial — one lasted five minutes. Fortas earned the Senate’s imprimatur in a mere fortnight to become an associate justice in 1965. Expecting a repeat performance three years later, the New York Times confidently proclaimed: “Fortas will move up … to stage center as Chief Justice.”
Then came the unexpected insurrection.
South Carolina’s Strom Thurmond, a Republican, emerged as the bombastic frontman of a coalition of senators willing to breach the deep-seated customs governing judicial appointments to sabotage Fortas. Exasperated by repeated failures to neutralize the Warren court’s liberal rulings, they devised a revolutionary strategy that has since become the norm: Obstruct a political rival’s nominees while stacking the court with like-minded jurists.
Shattering long-held norms, Republicans teamed up with Southern Democrats to orchestrate the first filibuster against a court nominee. Claiming Johnson was a “lame duck,” Fortas’ opponents called for the next president to fill the vacancy. Aiming for the jugular, critics labeled Fortas a “crony” for serving as the president’s advisor, tarnished his reputation by pointing to questionable earnings from a teaching position and invited social conservatives to brand him a guardian of criminals and pornographers. In the era’s version of culture wars, Thurmond aired a series of adult movies the court had shielded from censors to underscore Fortas’ purportedly lax morals. The highlight of his performance occurred when, during Fortas’ testimony, Thurmond blindly accused Fortas of encouraging criminals to “commit rapes.” Blindsided by this unanticipated fusillade, Fortas grumbled to Justice William O. Douglas: “All the accumulated venom about practically everything seems to have come to a focus.”
On Oct. 1, 1968, Fortas became the only court nominee to be done in by a filibuster. Seven months later, President Nixon pressured the justice to resign — also a first — by exploiting Fortas’ arrangement with a white-collar criminal who arranged for him to be paid the equivalent of half of Fortas’ annual judicial salary for serving on a foundation board.
Contrary to the prevailing wisdom, it was this imbroglio — and not Bork’s nomination in 1987 — that triggered the modern confirmation wars, transforming the selection of justices into the hyper-politicized, high-stakes contest we live with to this day. This new paradigm became evident soon after Fortas’ exodus. Within a year of his resignation, Senate liberals avenged him by rejecting two of Nixon’s nominees — the Southern conservatives Clement Haynsworth and G. Harrold Carswell. In the next phase of this tit-for-tat, Nixon tried to impeach Justice Douglas in 1970.
After a peaceful lull, Bork’s nomination represented an atavistic return to this epoch. With several of the combatants from 1968 taking part, the parallels between the Bork and Fortas nominations were palpable. A Johnson advisor, Joseph A. Califano Jr., even urged those disagreeing with Bork’s judicial philosophy “to oppose the nomination, by filibuster if necessary.”
Many of the groundbreaking tactics deployed against Fortas also resurfaced in later nomination clashes. In 2005, Harriet Miers was labeled George W. Bush’s “crony.” Calling President Obama a “lame duck,” Sen. Mitch McConnell refused to consider Garland’s nomination in 2016, and Senate liberals targeted Gorsuch in 2017 through a filibuster. In its latest manifestation, the heated exchanges between Kavanaugh and Senate Democrats eerily resembled the testy duels between Fortas and Thurmond.
It was Fortas’ misfortune that he became an unwitting victim of this new battlefront. The final irony was that, unwilling to leave his lucrative legal practice, he capitulated to joining the court in 1965 only after Johnson’s entreaties. Reflecting on his friend’s tragic fate, Johnson wrote: “I made him take the justiceship. In that way I ruined his life.”
He wasn’t the only one left in ruins. On the 50th anniversary of his fall, the legacy of Fortas’ nomination still looms over the nation.
Michael Bobelian is the author of “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon and the Forging of the Modern Supreme Court,” scheduled to be published May 29.