By Bruce Allen Murphy
William Morrow & Company
Illustrated, 717 pages
When I was a fledgling lawyer in the '60s, one of the prominent attorneys
of the day, whom I especially admired, was Abe Fortas. He followed the
path to success of many first-generation Americansscholarship. It
paved his way to power and influence in the New Deal and to the success
and esteem of his law firm, Arnold, Fortas and Porter. All of this was
at a time when the law business was dominated by sedate law firms of Wall
Street and Washington that traced their origins to the 19th century and
often had no living name partners. His financial success was equalled
by distinguished pro bono work in defense of individuals targeted by the
McCarthy hearings, such as Owen Lattimore, and defendants in such landmark
constitutional cases as Gideon v. Wainwright.
I was delighted when, in 1965, President Johnson appointed him
to succeed Arthur Goldberg on the Supreme Court. In 1969 Fortas
resigned from the Court in apparent disgrace. Wanting to believe
he had been victimized, I suppressed those facts that cast doubt
on my judgment. I have since wondered what the Court would have
been like had he remained.
Bruce Allen Murphy's hook, Fortas: The Rise and Ruin of
a Supreme Court Justice, shattered my illusions. Professor
Murphy traces Abe Fortas' rise to preeminence as student, teacher,
public servant, practitioner of the law and power broker, followed
by his untimely resignation from the Supreme Court, and leaves little
doubt that he victimized himself. The author portrays a man driven
by ego, ambition, greed and the heady wine of political power.
Fortas' career began on the faculty of Yale Law School following
his graduation. Contacts he made there led to his work in the Roosevelt
New Deal administration. Contacts made in government service provided
both a client and power base that contributed to the success of
Fortas and his law firm.
Fortas' reputation and considerable legal skill enabled him to
establish his ultimate power relationship by saving Lyndon Johnson's
first election to the Senate. Johnson's victory in the 1948 Texas
Democratic primary for a vacant Senate seat was being contested
and had been blocked by a federal court order. To save the primary
and, in effect, the election for Johnson, Fortas had to quickly
overcome the order by having the matter referred to state court.
He devised a strategy for bringing it before Associate Justice Hugo
Black, whom he persuaded to issue the needed order. Thereafter and
throughout Johnson's political career, Fortas was among his closest
friends and advisers.
When Johnson was still in the Senate, he hoped he would someday
have the opportunity to repay Fortas for his service by nominating
him to the United States Supreme Court. Finally, in 1965, Johnson
had that opportunity, even though Fortas indicated considerable
reluctance to serve. Fortas' nomination was readily confirmed by
the Senate. It is ironic that a bitter and hostile relationship
developed between Fortas and Hugo Black, who had provided the court
order that saved Johnson's career.
In 1968, both to continue the record of the Warren Court and to
further reward his friend, Johnson nominated Fortas to succeed Earl
Warren as chief justice. Unlike his first appointment, Fortas' second
was not well-received by many of the Republican and Southern Democratic
members of the Senate Judiciary Committee. The confirmation process
was brutal as senators, philosophically at odds with the Warren
Court and some with apparent anti-Semitic leanings, attacked both
Court decisions by Fortas and a relationship with President Johnson
that appeared to breach Fortas' constitutional responsibility to
keep the judicial branch separated from the executive. (This aspect
of the story may temper the sensitivities of those who believe Robert
Bork was unfairly treated in his unsuccessful confirmation hearings
earlier this year.)
The hearings did not fully reveal Fortas' compulsive need to remain
at the center of power, but that issue, coupled with questions raised
by fees he accepted while a justice, provided his opposition with
the votes needed to prevent cloture of a filibuster to block the
full Senate from voting on his nomination. Finally, at Fortas' request,
the president withdrew his name.
Although he was treated harshly by the Senate, it is clear that
Fortas' continuing greed for power and money provided the material
needed to support opponents driven by less than honorable motives.
The fee issues uncovered in the course of his confirmation hearings
did not come to rest after his name was withdrawn as a nominee for
chief justice. In 1969, following the disclosure of one particularly
questionable fee arrangement, he resigned from the Court. That was
the end of what had been a distinguished legal career.
Professor Murphy's book reveals the attention to detail of a careful
and thoughtful researcher. Unfortunately, Murphy's desire to share
that detail serves to encumber as well as enhance the book. The
detail is often tedious, even confusingparticularly in the
beginningleaving one to wish for the hand of a good editor.
While the story's pace resembles that of an exciting mystery as
it gets into the Senate confirmation hearings on Fortas' chief justice
nomination regrettably, the author's penchant for detail impairs
the momentum that might otherwise have been achieved. For example,
in a chapter entitled "The Scarlett Letter" (presumably to titillate
the reader), he devotes over 30 pages to a tale of Senator Richard
Russell's effort to influence the nomination of a successor to Frank
Scarlett as a Federal District Court judge, and how it led to the
loss of Russell's support for Fortas' nomination. In the guise of
a tale of intrigue, he bores and confuses the reader with a story
best left to a vignette.
In the early part of the book I hoped and expected Murphy to analyze
details of the Fortas story in the fashion of psychoanalytical biographies
currently so popular. However, as I got further into the book I
thought that he had properly left the reader to do his own evaluation.
Given that, I was disappointed that the author attempted an analysis
in his eight-page epilogue. The details of the book revealed it
was a superficial effort to assess a man who was, on the one hand,
very complex and, on the other, rather obvious. In any case, readers
could take the facts provided by Murphy and enjoy doing their own
Notwithstanding the book's shortcomings, anyone interested in
Fortas or even the Supreme Court will probably enjoy the book. Anyone
without either of those special interests, however, will probably
find the book a tedious way to learn about fascinating people in
significant eras of the nation's history.