The Senate: Fortas at the Bar

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For congressional opponents of the Supreme Court, it was a moment of high satisfaction. Never before had a Chief Justice-designate been grilled by a Senate committee. Never before had there been so dramatic an opportunity to voice criticism of the Warren court. For Abe Fortas, the confrontation must have been an occasion of particular pain. After four days of hearings before James Eastland's Senate Judiciary Committee, it was plain that the most serious impediment to his confirmation as 15th Chief Justice of the United States may prove to be his friendship with Lyndon Johnson.

The issue of "cronyism" seemed to overshadow all others. As Fortas described it, his role as presidential adviser has been grossly exaggerated. While he was indeed called in on "a few critical matters," most notably Viet Nam and the Detroit riots, he said that his role was not to shape policy but to synthesize the arguments of others in clear legal style. "My function," he noted, "has been to listen to what is said . . . then to sum up the arguments on the one side, the considerations on the other."

Never, Never. At no time since he was appointed Associate Justice, he said, had he discussed with the President any matter relating to the court. "I have never, never," he declared, "been asked by the President, nor have I expressed my views on any pending or decided case—never, never."

Yet even the limited role described by Fortas troubled many, including liberal friends. He admitted, for instance, that 21 months after donning the judicial robes, he had called a businessman friend, Ralph Lazarus, chairman of the board of Federated Department Stores, to chide him for questioning Administration estimates of war spending. Fortas refused to say whether Johnson had instigated the call, thereby leaving the impression that he had.

Somewhat taken aback by the attention given the cronyism issue on the first day, Fortas came prepared for the second with an annotated list of 14 previous Justices who had advised Presidents. The first Chief Justice, John Jay (1789-1795) counseled George Washington.* The fifth, Roger Taney, helped Andrew Jackson. Associate Justice David Davis, Lincoln's close friend and executor, advised the Civil War President, while Louis Brandeis was called in by Woodrow Wilson during several World War I crises. Chief Justice Wil liam Howard Taft, in Fortas' words, "performed extensive advisory services for Presidents Harding, Coolidge and Hoover."