Abe Fortas

Abe Fortas

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 amidst a scandal.

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 Associate 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. Fortas was initially reluctant to give up his substantial salary, but he eventually accepted. 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, Fortas' confirmation by the United States Senate was in trouble. He had accepted $15,000 for speaking engagements at the American University law school. While not illegal, it raised much criticism about the court's insulation from private interests. The nomination set off a four day filibuster led by Republicans and southern Democrats ("Dixiecrats"). A cloture motion to end the filibuster failed. At that time, 66 votes were needed to stop debate. 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 remaining 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.

In 1969, a new scandal arose. Fortas had accepted a $20,000 fee from a foundation controlled by Louis Wolfson. Wolfson was a financier who was under investigation for violating Federal securities laws. He was later convicted and spent time in prison. Wolfson was also a friend and former client of Fortas. When Chief Justice Earl Warren was informed of the Wolfson fee by Attorney General John N. Mitchell, he successfully urged Fortas to resign. President Nixon appointed as his replacement Harry A. Blackmun, who later authored the controversial Roe v. Wade decision legalizing abortion in the U.S.

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.

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 tried to point out differences between their 1968 actions and what the Democrats have done. For example, Republicans cited judges that were filibustered in 2005 had clear majority support. On the other hand, Fortas had 45 votes in his favor, a majority of the votes cast, but not a majority of the Senate as a whole. There is no way to know how many votes Fortas would have received had his nomination been voted on. However, the filibuster tactic is normally used by one side when it is not confident of winning 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 president would assume office and could appoint a conservative chief justice instead of a liberal, as President Johnson was inclined to do. Republicans successfully prevented the confirmation of Fortas until Richard Nixon assumed the presidency. When Democrats filibustered in 2005, they sought to block the appointment of any judge that they deemed too conservative.

External link

• Hatching a New Filibuster Precedent - Findlaw article by John Dean on the Fortas nomination filibuster.