JEWISH JUSTICES OF THE UNITED STATES SUPREME COURT

1. JEWISH JUSTICES OF THE UNITED STATES SUPREME COURT THE FORGOTTEN MEN: GOLDBERG AND FORTAS January 17, 2019 Presented by: Denise J. Karlin, Esq.

2. ARTHUR JOSEPH GOLDBERG (1908-1990): THE AMBITIOUS JUSTICE

3. ARTHUR J. GOLDBERG: THE EARLY YEARS • Born in 1908 on the West Side of Chicago to Russian Jewish immigrants, the youngest of 11 children • His father, a fruit peddler, died when Goldberg was 8 years old. All his older siblings had to quit school, but Arthur was allowed to continue because he was the youngest • Worked his way, doing all kinds of odd jobs, through Crane Junior College of the City College of Chicago and then DePaul University, where he earned a BSL magna cum laude. Then earned a JD from Northwestern University Law School in 1930 • Interest in the law was sparked by the notorious Leopold and Loeb case where two rich young men, who committed a murder for fun, were spared the death penalty because of the strong advocacy of their attorney, Clarence Darrow. It showed him the inequalities in the law due to wealth

4. ARTHUR J. GOLDBERG: EARLY CAREER AND PERSONAL LIFE • Married Dorothy Kargans in in 1931. They had two children, one son and one daughter, and a long and happy 57 year marriage • Worked for a big law firm in Chicago but resigned after being asked to do mortgage foreclosure work. Founded his own small law firm representing workers and poor people hurt by the Great Depression • Among Goldberg's clients was the American Newspaper Guild which, in 1938, struck against the Hearst newspapers in Chicago. For eight months, Goldberg represented the strikers without charge, spending countless days in court defending arrested picketers. In the end, Hearst recognized the union and Goldberg made his name as a hero of the working person • Was a strong Zionist. Practiced pretty traditional Judaism but did not keep kosher, but would serve kosher food to those who kept kosher and came to his home, including one of his law clerks – Alan Dershowitz -- when he was on the Supreme Court

5. ARTHUR J. GOLDBERG: EARLY CAREER AND PERSONAL LIFE • Served in the United States Army in World War II, first as a captain and then as a major, as part of the Office of Strategic Services (OSS), the precursor to the CIA • As part of the OSS, he was Chief of the Labor Desk, an autonomous division of the OSS that was charged with the task of cultivating contacts and networks within the European underground labor movement during World War II. Organized anti-Nazi European transportation workers into an extensive intelligence network • Developed his strong Zionist views at this time because he had firsthand knowledge of the Nazi atrocities

6. ARTHUR J. GOLDBERG: PROMINENT LABOR ATTORNEY • After World War II, rose to prominence as a leading labor attorney representing the unions • Appointed general counsel to the Congress of Industrial Organizations (CIO) in 1948. Goldberg served as a negotiator and chief legal adviser in the merger of the American Federation of Labor (AFL) and CIO in 1955 and became General Counsel of the newly formed AFL-CIO. Goldberg also served as general counsel of the United Steelworkers of America • Goldberg drew the AFL-CIO into the emerging civil rights movement by filing amicus briefs with the Court in desegregation cases.

7. ARTHUR J. GOLDBERG: UNITED STATES SECRETARY OF LABOR • Appointed Secretary of Labor by President John F. Kennedy in 1961. Served as mentor to a young Daniel Patrick Moynihan, who became a Harvard government professor and United States Senator • Goldberg was considered among the most energetic members of the Cabinet. Some called him the "Davey Crockett of the New Frontier" and Hubert Humphrey referred to him as the "vitamins" of the Kennedy Administration. Lyndon Johnson is rumored to have said that Goldberg was the only member of the Kennedy cabinet with any intelligence

8. ARTHUR J. GOLDBERG: SUPREME COURT JUSTICE • President Kennedy appointed Goldberg to fill the United States Supreme Court seat vacated by the resignation of Felix Frankfurter in 1962 • On September 25, 1962, Goldberg was confirmed by the Senate by acclimation in an easy confirmation process • His appointment to the seat previously held by Frankfurter and Cardozo created the notion of the so-called “Jewish seat” on the Court • Goldberg resigned from the Court in 1965, serving only 2 years and 10 months, to become Ambassador to the United Nations

9. JUSTICE ARTHUR J. GOLDBERG: MAJOR WORK ON THE SUPREME COURT • Goldberg’s confirmation produced the fifth liberal vote on the Court – along with William O. Douglas, Hugo Black, Earl Warren, and William Brennan. The more conservative Justices were Tom Clark, John Marshall Harlan ii, Potter Stewart, and Byron White

10. JUSTICE ARTHUR J. GOLDBERG: MAJOR WORK ON THE SUPREME COURT • One of Goldberg's best-known opinions came in the concurrence of Griswold v. Connecticut (1965), arguing that the Ninth Amendment supported the existence of an unenumerated right of privacy. He argued that to determine if a right is a fundamental right, the court should look to whether the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, thus echoing Brandeis’s revolutionary new idea • Another famous decision was in the case of Escobedo v. Illinois (1964). This decision held that a suspect was granted the right to an attorney during any criminal interrogation by the authorities. It was decided a year after the more well known Gideon v. Wainwright, which held that the defendant in a criminal matter was entitled to a lawyer during trial

11. JUSTICE ARTHUR J. GOLDBERG: MAJOR WORK ON THE SUPREME COURT (DEATH PENALTY) • One of Goldberg's most influential and long lasting moves on the Court involved the death penalty. Goldberg argued in a 1963 internal Supreme Court memorandum that imposition of the death penalty was condemned by the international community and should be regarded as "cruel and unusual punishment," in contravention of the Eighth Amendment. Finding support in this position from two other justices (William J. Brennan and William O. Douglas), Goldberg published an opinion dissenting from the Court's denial of certiorari in a case, Rudolph v. Alabama, involving the imposition of the death penalty for rape, in which Goldberg cited the fact that only five nations responding to a UN survey indicated that they allowed imposition of the death penalty for rape, including the U.S., and that 33 states in the U.S. had outlawed the practice

12. JUSTICE ARTHUR J. GOLDBERG: MAJOR WORK ON THE SUPREME COURT (DEATH PENALTY) • Goldberg's dissent sent a signal to lawyers across the nation to challenge the constitutionality of capital punishment in appeals. As a result of the influx of appeals, the death penalty effectively ceased to exist in the United States for the remainder of the 1960s and 1970s, and the Supreme Court considered the issue in the 1972 case of Furman v. Georgia, where the Justices, in a 5 to 4 decision, effectively suspended the death penalty laws of states across the country on the ground of the capricious imposition of the penalty. That decision would be revisited in 1976's Gregg v. Georgia, where the justices voted to allow the death penalty under some circumstances; the death penalty for rape of an adult female victim, however, would be struck down in 1977's Coker v. Georgia. In 2008 the death penalty for juveniles convicted of rape was ruled unconstitutional by a 5 to 4 decision (Kennedy v. Louisiana).

13. AMBASSADOR ARTHUR J. GOLDBERG: SUPREME COURT RESIGNATION AND UNITED NATIONS TENURE • In 1965, Goldberg was persuaded by President Lyndon Johnson to resign his seat on the Court to replace the recently deceased Adlai Stevenson II as the Ambassador to the United Nations. Johnson wanted to appoint his friend, Abe Fortas, to the court because he thought that if any of his Great Society reforms were going to be deemed unconstitutional by the Court, Fortas would notify him in advance. Goldberg had declined an earlier offer to leave the Court to be Secretary of Health, Education and Welfare. He took Johnson's offer of the UN ambassadorship when Johnson discussed it with him on Air Force One while they were travelling to Illinois for Stevenson’s funeral

14. AMBASSADOR ARTHUR J. GOLDBERG: SUPREME COURT RESIGNATION AND UNITED NATIONS TENURE • Goldberg had a very difficult time stepping down. "I shall not, Mr. President, conceal the pain with which I leave the court after three years of service," he stated, according to the Los Angeles Times. "It has been the richest and most satisfying period of my career.“ • Johnson said of the Goldberg resignation in his later-released audio tapes: “Goldberg would be able to answer the Russians... very effectively... He's got a bulldog face on him, and I think this Jew thing would take The New York Times-- all this crowd that gives me hell all the time-- and disarm them. And still have a Johnson man. I've always thought that Goldberg was the ablest man in Kennedy's Cabinet, and he was the best man to us.... Goldberg sold bananas, you know.... He's kind of like I am... He's shined some shoes in his day and he's sold newspapers, and he's had to slug it out”

15. AMBASSADOR ARTHUR J. GOLDBERG: RESOLUTION 242 • In 1967, Goldberg was a key drafter of Resolution 242, which followed the 1967 Six-Day War between Israel and the Arab states. While interpretation of that resolution has subsequently become controversial, Goldberg was very clear that the resolution does not obligate Israel to withdraw from all of the captured territories. He stated that: “The notable omissions in language used to refer to withdrawal are the words the, all, and the June 5, 1967 lines. I refer to the English text of the resolution. The French and Soviet texts differ from the English in this respect, but the English text was voted on by the Security Council, and thus it is determinative. In other words, there is lacking a declaration requiring Israel to withdraw from the (or all the) territories occupied by it on and after June 5, 1967. Instead, the resolution stipulates withdrawal from occupied territories without defining the extent of withdrawal. And it can be inferred from the incorporation of the words secure and recognized boundaries that the territorial adjustments to be made by the parties in their peace settlements could encompass less than a complete withdrawal of Israeli forces from occupied territories.” [italics by Goldberg]

16. ARTHUR J. GOLDBERG: REGISNATION FROM THE AMBASSADORSHIP AND POLITICAL CAREER • Goldberg had hoped that he could persuade Johnson to disengage from Vietnam, but that did not happen. Frustrated with the war in Vietnam, Goldberg resigned from the ambassadorship in 1968 and accepted a senior partnership with the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison. Longing to return to the bench, Goldberg later claimed that he was Earl Warren's preference to succeed him when the Chief Justice announced his retirement in 1968, but President Johnson selected Abe Fortas instead.After Fortas's nomination was withdrawn in the face of Senate opposition, Johnson briefly considered naming Goldberg Chief Justice as a recess appointment before ruling out the idea

17. ARTHUR J. GOLDBERG: POLITICAL CAREER • With the prospect of a return to the Supreme Court closed to him by the election of Richard Nixon, Goldberg contemplated a run for elected office. Initially considering a challenge to Charles Goodell's reelection to the United States Senate, he decided to run against New York Governor Nelson Rockefeller in 1970. Though the former Justice and Ambassador initially polled well, a contested primary and Goldberg's own poor skills as a campaigner, coupled with Rockefeller's formidable advantages, resulted in a 700,000 vote margin of victory for the incumbent • There is speculation that Goldberg had hoped to use the Governorship of New York as a stepping stone to a future Presidential run

18. ARTHUR J. GOLDBERG: LATER CAREER AND LEGACY • After his defeat, Goldberg returned to law practice in Washington, D.C., and served as President of the American Jewish Committee. Goldberg said, "I'm proud of my Jewish heritage; I don't like any American who's not proud of his heritage." The link between his Judaism and his liberalism appeared particularly at Passover Seders, where he retold the story of the Israelites in a way that made their struggles sound like the civil rights struggles of the 1960s. A friend once remarked, "He makes the whole thing the story of all the oppressed and outcast of the world, as if he were presenting a brief before the Supreme Court of History that will forever put Pharaoh in outer darkness." • In 1972, Goldberg returned to the Supreme Court as a lawyer, representing center fielder Curt Flood in Flood v. Kuhn, which upheld Major League Baseball’s antitrust exemption. His oral argument was referred to by one observer as "one of the worst arguments I'd ever heard – by one of the smartest men I've ever known..." Under President Jimmy Carter, Goldberg served as United States Ambassador to the Belgrade Conference on Human Rights in 1977, and was awarded the Presidential Medal of Freedom in 1978. • Goldberg passed away in 1990 at age 82 and is buried in Arlington National Cemetery

19. ABRAHAM “ABE” FORTAS (1910-1982): THE RELUCTANT JUSTICE

20. ABE FORTAS: THE EARLY YEARS • Born in Memphis, Tennessee to immigrant parents – father from England and Russia and mother from Russia. Father was a cabinetmaker. Was the youngest of five children • Was an avid violinist and known around town as “Fiddlin’ Abe” • Attended Southwestern College (now Rhodes College) and graduated first in his class in 1930. • Attended Yale Law School where he was Editor in Chief of Yale Law Journal and graduated first in his class in 1933

21. ABE FORTAS: EARLY CAREER AND PERSONAL LIFE • His mentor at Yale was William O. Douglas, then a professor at Yale law who arranged for Fortas to became an Assistant Professor at Yale Law • Married Carolyn Agger in 1935 and persuaded her to attend Yale Law School. They had no children. She was a highly successful tax lawyer and one of first women to join a big mainstream law firm and become a powerful partner is in an influential firm • Fortas was an amateur musician who played the violin on Sunday evenings in a string quartet, called the "N Street Strictly-no-refunds String Quartet". It often included notable musicians passing through Washington D.C., such as Isaac Stern

22. ABE FORTAS: EARLY CAREER • Douglas left Yale shorty after the election of Franklin D. Roosevelt to run the Securities and Exchange Commission and Fortas was able to commute between Washington and New Haven to continue teaching and advising the SEC • Douglas stayed close to Fortas and persuaded him to join the Roosevelt Administration • Fortas served as general counsel of the Public Works Administration and as Undersecretary of the Interior during the administration of Franklin D. Roosevelt. While he was working at the U.S. Department of the Interior, the Secretary of the Interior, Harold L. Ickes, introduced him to a young congressman from Texas named Lyndon Johnson

23. ABE FORTAS: EARLY CAREER • In 1945, Fortas was granted a leave of absence from the Department of Interior to join the Armed Forces of the United States. Within a month, Fortas was discharged because of an arrested case of ocular tuberculosis. Later in 1945, he was appointed by President Harry Truman as an advisor to the U.S. delegation during the organizational meeting of the United Nations in San Francisco and at the 1946 General Assembly meeting in London • Fortas was a good friend of the first democratically elected Governor of Puerto Rico, Luis Muñoz Marín, calling him "a spectacularly great figure". Fortas visited the island often, frequently lobbied for the island's interests in Congress, participated in drafting the Constitution of Puerto Rico, and gave legal advice to Marín's administration whenever requested

24. ABE FORTAS: WASHINGTON INSIDER • In 1946, after leaving government service, Fortas founded a law firm, Arnold & Fortas, with Thurman Arnold. Former Federal Communications Commission commissioner Paul A. Porter joined the firm in 1947 and the firm became Arnold, Fortas and Porter, and after the appointment of Fortas to the Supreme Court, the firm was renamed Arnold & Porter. For many years, it has been one of Washington's most influential law firms and today is among the largest and most influential law firms in the world • In 1948, Lyndon Johnson ran for the Democratic nomination for one of the two seats in the U.S. Senate from Texas. Johnson won the Democratic primary by only 87 votes. His opponent, former Governor of Texas Coke R. Stevenson, persuaded a federal judge to issue an injunction taking Johnson's name off the general election ballot while the primary results were being contested. There were serious allegations of corruption in the voting process, including 200 votes for Johnson that had been cast in alphabetical order. Johnson asked Fortas for help, and Fortas persuaded Supreme Court Justice Hugo Black to overturn the injunction, thus cementing the Johnson-Fortas close friendship. Johnson then won the general election and became a U.S. Senator

25. ABE FORTAS: SOCIAL JUSTICE CRUSADER • While Fortas maintained a highly lucrative law practice as a business litigator, he devoted his time to social justice causes as well • During the Red Scare of the late 1940s and early 1950s, Fortas came to widespread notice as the defense attorney for Owen Lattimore, an author and China expert who had worked in the State Department. In 1950, Fortas often clashed with Senator Joseph McCarthy when representing Lattimore before the Tydings Committee, and also before the Senate Internal Security Subcommittee. Latimer was ultimately indicted for lying to Congress and being a Communist but the charges were dismissed in the mid 1950s

26. ABE FORTAS: SOCIAL JUSTICE CRUSADER AND PRESIDENTIAL ADVISOR • In 1963, Fortas represented Clarence Earl Gideon in his 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 when he asked for one at trial. In its landmark ruling in Gideon v. Wainwright, the Supreme Court held for Gideon, ruling that state courts are required under the Sixth Amendment to provide counsel in criminal cases for defendants unable to afford their own attorneys • Fortas advised Johnson informally but did not take a position in the Administration when Johnson became President after John F. Kennedy was assassinated. Fortas initially opposed the creation of a Presidential commission to investigate the assassination of President John F. Kennedy. When it became clear that multiple investigations were gearing up simultaneously at the city, state, and federal levels, Fortas changed his mind and advised Johnson to establish the Warren Commission

27. ABE FORTAS: SUPREME COURT NOMINATION • Johnson really wanted his friend Fortas on the Court. Johnson feared the Court would take action against his Great Society legislation, like it did in the 1930s when it found much New Deal legislation was unconstitutional. He thought that Fortas would give him a heads up so he could get the legislation modified. Johnson’s fears were groundless since there was a 5-4 liberal majority with some of the conservatives being quite moderate • Fortas did not want the nomination. He liked the rough and tumble atmosphere of the courtroom and knew he would be bored in the more cerebral environment of the Court. Also, it would have meant a significant pay cut. Fortas was making over $200,000 in 1965 dollars and Supreme Court Justices made $39,500. He wife was said to have been livid. They lived a rather lavish lifestyle and she did not want to be the primary breadwinner although she made as much as her husband, or perhaps more, as a high powered tax attorney for Arnold, Fortas and Porter.

28. ABE FORTAS: SUPREME COURT NOMINATION • Johnson finally convinced Fortas to take the nomination. He invited Fortas to a press conference that he was holding on the Vietnam War and halfway down the hall told Fortas that at this press conference, he was also going to announce Fortas’s nomination to the Supreme Court. Johnson also added: “I am sending all these boys to Vietnam. They’re giving their lives to their country and you can do no less.” By this method, he forced Fortas to accept the Supreme Court appointment • Johnson managed to use his legendary powers of persuasion to get a Justice who loved the job and wanted to stay to resign and to get an attorney who wanted no part of the job to accept it. Johnson wasn’t called “The Great Manipulator” for no reason • On August 11, 1965, Fortas was approved by the Senate by acclimation. Goldberg had resigned his seat less three weeks earlier on July 25, 1965

29. JUSTICE ABE FORTAS: MAJOR WORK ON THE SUPREME COURT • Fortas was critical of justices (he specifically cited Thurgood Marshall) who frequently broke into attorneys' arguments to ask questions. As an attorney arguing before the Court many times, Fortas had resented intrusions by the Justices and so as a Justice himself, he felt it best to let the lawyers give their arguments uninterrupted. This was unusual and most Justices asked – and still do ask – lots of questions • During his time on the Court, Fortas led a revolution in US juvenile justice, broadly extending the Court's logic on due process rights and procedure to minors and overturning the existing paradigm of parens patriae in which the state had usurped the parental role, rather than viewing the juvenile as a defendant

30. JUSTICE ABE FORTAS: MAJOR WORK ON THE SUPREME COURT • Fortas wrote the majority opinion in the case of In re Gault (1967). The case concerned a 15-year-old who had been sentenced to almost six years (until his 21st birthday) in the Arizona State Industrial School for making an obscene phone call to his neighbor. Had he been an adult, the maximum punishment he could have received was a $50.00 fine or two months in jail. The case ruled that the Due Process Clause of the 14th Amendment applies to juvenile defendants as well as to adult defendants. Juveniles accused of crimes in a delinquency proceeding must be afforded many of the same due process rights as adults, such as the right to timely notification of the charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel. Fortas used the case to launch a ferocious attack on the juvenile justice system and parens patriae. His majority opinion was a landmark, extending the Fourteenth Amendment's guarantees of right to sufficient notice, right to counsel, right to confrontation of witnesses, and right against self-incrimination to certain juvenile proceedings

31. JUSTICE ABE FORTAS: MAJOR WORK ON THE SUPREME COURT • Two years later, Fortas wrote another landmark decision in children's rights with the decision in the case of Tinker v. Des Moines Independent Community School District (1969), involving two high school students and one junior high school student who had been suspended for wearing black armbands to school to protest the Vietnam War. Extending First Amendment rights to school students for the first time, Fortas wrote that neither "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"

32. JUSTICE ABE FORTAS: MAJOR WORK ON THE SUPREME COURT • Epperson v. Arkansas(1968), where Fortas wrote the majority opinion, was a United States Supreme Court case that invalidated an Arkansas statute that prohibited the teaching of human evolution in the public schools. The Court held that the First Amendment to the United States Constitution prohibits a state from requiring, in the words of the majority opinion, "that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." The Supreme Court declared the Arkansas statute unconstitutional because it violated the Establishment Clause of the First Amendment. After this decision, some jurisdictions passed laws that required the teaching of creation science alongside evolution when evolution was taught

33. JUSTICE ABE FORTAS: MAJOR WORK ON THE SUPREME COURT • Fortas believed in an expanded executive branch and a less powerful legislative branch. He wrote: "The enormous growth of presidential power from Franklin D. Roosevelt to Lyndon Johnson was a necessary and an inevitable adaptation of our constitutional system to national needs.” He was a strong proponent of judicial activism • While on the Court, Fortas wrote a book called Concerning Dissent and Civil Disobedience (1968). Fortas argued that nonviolent dissent can successfully achieve revolutionary goals within the law, institutions & traditions of our democratic society. It was unusual for a sitting Supreme Court Justice to write such a politically oriented book • Fortas also informally continued to advise Johnson while Fortas sat on the Court, even writing Johnson’s 1966 State of the Union Address

34. JUSTICE ABE FORTAS: CHIEF JUSTICE NOMINATION • When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Fortas to replace Warren as Chief Justice. However, the Warren Court's form of activist jurisprudence had angered many conservative members of the Senate, and the nomination of Fortas provided the first opportunity for these senators to register their disenchantment with the direction of the Court. Senate Judiciary Committee Chair James Eastland of Mississippi told Johnson he "had never seen so much feeling against a man as against Fortas". Fortas was the first nominee for Chief Justice ever to appear before the Senate and faced hostile questioning about his relationship with President Johnson, who had consulted with Fortas about political matters frequently while Fortas was on the Supreme Court.

35. JUSTICE ABE FORTAS: CHIEF JUSTICE NOMINATION • Fortas's acceptance of $15,000 for nine speaking engagements at American University's Washington College of Law became a source of controversy during the hearing process. The money had come not from the University but from private sources that represented business interests connected to 40 companies. Senator Strom Thurmond raised the idea that cases involving these companies might come to the Court and Fortas might not be objective. While the fee was legal, the size of the fee raised much concern about the Court's insulation from private interests, especially as it was funded by former clients and partners of Fortas. The $15,000 represented more than 40 percent of a Supreme Court Justice's salary at the time and was seven times what any other American University seminar leader had ever been paid

36. JUSTICE ABE FORTAS: CHIEF JUSTICE NOMINATION • As part of the confirmation procedure, Senator Strom Thurmond obtained some of the pornographic films that were the subject of litigation where Fortas had ruled that the films could not be barred on First Amendment ground. Thurmond played them in the Senate building while the hearings were out of session, eventually admitting them to the official record. He was lampooned in the press as a pornographer himself for these tactics—the showings became the "Fortas Film Festival"—but the association of Fortas with some of the films' strip-teases and especially the rape or homosexual sex depicted in one called Flaming Creatures was effective. Many, including Nixon adviser Pat Buchanan, credit Thurmond's efforts for ruining Fortas's nomination

37. JUSTICE ABE FORTAS: WITHDRAWAL OF CHIEF JUSTICE NOMINATION • "We won't withdraw the nomination. I won't do that to Abe." Though we couldn't get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. "With a majority on the floor for Abe, he'll be able to stay on the Court with his head up. We have to do that for him." Fortas also wanted the majority vote.... On October 1, 1968. after a strenuous White House effort, a 45–43 majority of senators voted to end the filibuster, short of the 67 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination. • Public debate occasionally still occurs over whether Fortas would have been confirmed in a simple majority vote. The Fortas vote is seen as an early precedent for later filibusters of judicial nominees

38. JUSTICE ABE FORTAS: WITHDRAWAL OF CHIEF JUSTICE NOMINATION • In 1968, the rules of the Senate required the approval of two thirds of senators present to cut off debate (from 1975 to 2017 the consent of three fifths of the membership of the Senate was required to cut off debate, but as of 2017 a simple majority is sufficient). The 45 to 43 cloture vote to end the Fortas debate included 10 Republicans and 35 Democrats voting for cloture, and 24 Republicans and 19 Democrats voting against cloture. The 12 other senators, all Democrats, were absent. The New York Times wrote of the 45 to 43 vote for cloture: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote." The next president, Republican Richard Nixon, appointed Warren Burger the next Chief Justice. David Leonhardt of The New York Times called Johnson's nomination of Fortas "one of the most consequential blunders in modern American politics," as the role of Chief Justice has been held by conservatives appointed by Republican presidents ever since

39. JUSTICE ABE FORTAS: MORE SCANDAL • Fortas remained an Associate Justice, but in 1969, a new scandal arose. Fortas had accepted a $20,000 ($136,642 in 2018 dollars) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client. In January 1966, after he joined the Court, Fortas had signed a contract with Wolfson's foundation. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life). Wolfson was under investigation for securities violations at the time, and it was alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon. He asked Fortas to help him secure a pardon from Johnson, which Fortas claimed that he did not do. Fortas recused himself from Wolfson's case when it came before the Court and had earlier returned the retainer but not until Wolfson had been indicted twice

40. JUSTICE ABE FORTAS: MORE SCANDAL AND RESIGNATION • Fortas's judicial reputation was also affected by the previous Johnson consultation and American University scandals. The new Richard Nixon administration became aware of the Wolfson deal when a Life reporter began investigating the story. FBI director J. Edgar Hoover also mentioned a "tax dodge" Fortas had entered into with other judges, and Nixon concluded Fortas should be "off of there." When Chief Justice Earl Warren was informed of the incident by the new Attorney General John N. Mitchell, he persuaded Fortas to resign to protect the reputation of the Court and avoid lengthy impeachment proceedings, which were in their preliminary stages. Justice Hugo Black also urged Fortas to resign, but when Fortas said it would "kill" his wife, Black changed his mind and urged Fortas not to resign. Days after impeachment proceedings formally began with a resolution introduced by Rep. H. R. Gross (R-Iowa). Fortas decided resignation would be best for him and for his wife's legal career, he reportedly told his colleagues. William J. Brennan later said, "We were just stunned." Fortas later said he "resigned to save Douglas," another Justice who was being investigated for a similar scandal at the same time. Fortas resigned from the Court on May 14, 1969

41. ABE FORTAS: LATER CAREER • Rebuffed in the wake of his fall by the powerful Washington law firm he had founded, Fortas founded another firm, Fortas and Koven, and maintained a successful law practice until his death in 1982. However, his wife, Carolyn Agger, stayed at Fortas's original firm of Arnold and Porter, in part due to the fact that Fortas had resigned, in order to protect her job there. In the year following his resignation, he turned down an offer to publish his memoirs • At Fortas & Koven, Fortas also kept two notable non-paying clients: preeminent cellist/composer Pablo Casals and Lyndon Johnson. Johnson and Fortas remained great friends. Fortas often visited the former President at his ranch near Stonewall, Texas until Johnson’s death in 1973. Fortas was asked to donate his papers to Johnson's presidential library by Lady Bird Johnson, but he replied that his correspondence with Johnson had always been kept in strictest confidence and would remain so

42. ABE FORTAS: LEGACY • The American Bar Association revamped its rules as a result of the Wolfson affair, strictly limiting the circumstances under which a sitting judge could accept outside income • Fortas served as a longtime member of the Board of Directors of Carnegie Hall, including while he was on the Supreme Court. He also served on the Board of the Kennedy Center since its opening in 1964 • In the course of his return to private practice, Fortas sometimes appeared before his former colleagues at the Supreme Court. On the first occasion he did so, his successor, Harry Blackmun, recalled that his eyes met Fortas's: "[Fortas] kind of nodded...I wondered what was going through his mind". When Blackmun later questioned Fortas if he remembered the encounter, Fortas said he would "never forget it". Blackmun thought Fortas's attitude toward the new Justice was remarkable, not showing "an ounce of antagonism or resentment.“ • Fortas died from a ruptured aorta on April 5, 1982, at age 71. His memorial service was held at the Kennedy Center with Isaac Stern and Lady Bird Johnson in attendance

43. GOLDBERG AND FORTAS: A PERSONAL ASSESSMENT • Both men acted against their better instincts and paid dearly for it, one with the loss of a job he loved and the other with public embarrassment. • Both were advocates for social justice and one wonders where the Court would have headed if either had stayed on • Fortas’s resignation ended the so-called Jewish seat (Cardozo to Frankfurter to Goldberg to Fortas) when Harry Blackmun succeeded Fortas. Ironically, Stephen Breyer, a former Goldberg law clerk, occupies that seat