Abe Fortas, who nearly gave his name to a Supreme Court era, must have taken quiet satisfaction in the eventual fate of Richard Nixon and John Mitchell, the men who furtively engineered his resignation from the court 14 years ago.
His offense was, at worst, indiscretion; theirs, the systematic flouting of the law.
Yet the memorable Fortas embarrassments, if not of Nixonian scale, were symptomatic of a serious problem in the way influence is informally brokered in Washington. Fortas, who died last week at the age of 71, embodied a notable Washington style that came with the flood of bright young legal talents in New Deal days and remained to dominate its hidden circuitry.
As a public man, advocate and justice alike, he made lasting contributions to the law in the right of felons to counsel and the procedural rights of juveniles.
As a private man, he was never accused of making a fetish of discretion, or of the separation of powers.
After Lyndon Johnson appointed him to the Supreme Court in 1966, he went right on serving that president as a hawkish adviser on Vietnam. He even helped write LBJ's defiant war speeches, although the constitutionality of the war was being questioned in the courts. Along the way, he encouraged friends to endow a lucrative summer law seminar and accepted a $20,000-a-year lifetime retainer from the foundation of his friend, Louis Wolfson, who was under investigation by the Securities and Exchange Commission.
Since no one of his intelligence could have been blind to the risks he ran, and since he was neither corrupt nor cynical, the roots of his sometimes enigmatic behavior must be sought elsewhere.
One source, certainly, was the overbearing personality of his great patron, Lyndon Johnson. Johnson never forgot that Fortas had sent him on the way to the political heights by persuading Hugo Black to restore his name to the Texas senatorial ballot in 1948.
Fortas never sought political office, even resisted it, but LBJ thrust it upon him. After one failed attempt to make him attorney general and another to get him into black robes, Johnson virtually commanded Fortas to join the Supreme Court.
"I've ordered 500,000 American boys to Vietnam," LBJ is said to have said, "and I'm ordering you to the court." Fortas saluted and went.
The embarrassments to which that fateful command eventually led--the collapse of his nomination as chief justice in 1968, the forced resignation over the Wolfson retainer a year later--left a chill on the outside political activities that once engaged the surplus time and energies of certain Supreme Court justices, especially those of the Roosevelt vintage.
We know now from Prof. Bruce Allen Murphy's recent book, "The Brandeis- Frankfurter Connection," that there were precedents aplenty for extrajudicial activists. Both Brandeis (with Woodrow Wilson) and Frankfurther (with FDR) played advisory roles to the White House almost as adventurous, if not so bold or public, as Fortas'.
The crucial difference was that neither ever became a candidate for chief justice while sitting on the court. Fortas did.
And the circumstances of his nomination (including LJB's sly attempt to negotiate the timing of Earl Warren's retirement, pending Fortas' confirmation) gave an irritable Senate a fatal opportunity to review the unwritten rules of judicial and financial propriety that Fortas had merrily defied.
In the light of Murphy's findings, it is less easy today to view the Fortas indiscretions as censoriously as some senators did at the time--not all with the purest of motives.
As Murphy shows, justices have all along played a faster game than the separation of powers doctrine, nicely interpreted, would seem to allow. Few, however, have been as extraordinarily relaxed about it as Fortas was. The Abe Fortas who in a 1965 regional edition of "Who's Who" listed himself as a "presidential adviser" residing at 1600 Pennsylvania Avenue apparently saw no reason to dilute the boast when he became Justice Fortas.
To Fortas, it seems, those who fretted about it lived in ivory towers. He knew that power and influence in Washington often flow outside the neat channels diagrammed in proper civics texts. He went with the action, even if it meant bending the rules a bit.
Given his extraordinary talents and his undoubted public-spiritedness, perhaps it was all to the nation's good. But it led also to the tragic curtailment of a potentially great judicial career.
That there will be no "Fortas Court" in the history books suggests that even in the ultra-pragmatic world of Washington law and politics, the nemesis of pride still stalks the man who flies too high.