CHIEF CONFIDANT TO CHIEF JUSTICE

We are not final because we are infallible, but we are infallible only because we are final.

--Supreme Court Justice Robert Jackson (1941-54).

The third branch of the U.S. Government is intimate, unhurried and arcane, almost totally devoid of pomp or visible drama. Yet the Supreme Court's decisions affect every American, living and unborn. And it is the final, irrevocable judge of every President and Congress. Thus last week, when Lyndon Johnson nominated Associate Justice Abe Fortas to be the 15th Chief Justice of the United States, his selection was almost as significant as the election of a new President in November. A President cannot be elected more than twice. A Chief Justice can remain at the head of the world's most powerful court virtually as long as he lives or desires.

In view of President Johnson's fondness for unexpected appointments, the nomination of Fortas to succeed Earl Warren was surprising only in its predictability. A close friend and adviser, whom Johnson had named to take Arthur Goldberg's place in 1965, Fortas has distinguished himself in three Sessions on the Supreme Court, closely following--and to an increasing degree leading--the activist bloc that has dominated the Warren court for the past 15 years. If he was not a surprise, he was, at least in one way, unique. The fifth Jew to sit on the bench--the others were Louis Brandeis, Benjamin Cardozo, Felix Frankfurter and Goldberg--he would be the first of his religion to hold the third highest office in the nation.

Expectable in almost every other way, the nomination nonetheless provoked an unexpected reaction, arousing more opposition in the Senate than any other court appointment since 1930--when Herbert Hoover's choice of John J. Parker was rejected by a margin of two votes. But Parker was denied the post because of labor and Negro antipathy. Fortas is opposed not for what he has done but for what he is: the choice of a man who will be in office for less than seven more months, and the President's close friend and confidant to boot. The appointment smacked of "cronyism at its worst," said Michigan's Robert Griffin, "and everybody knows it." The charge of cronyism was reinforced by the fact that, to fill the vacancy left by Earl Warren's retirement and Fortas' move up, Lyndon Johnson appointed his old friend and fellow Texan, Homer Thornberry (see box, page 15).

Sensing victory for their party in November, and outraged by reports that Warren is retiring so that Johnson will be able to choose his successor, 19 Republican Senators signed a petition that would deny the President the right to put anybody at all on the court during the remainder of his term. "At the present time," said Griffin, who brings considerable skills as a political organizer to the G.O.P. rebellion, "the American people are in the process of choosing a new government. By their votes in November the people will designate new leadership and new direction for our nation. Of course, a lame-duck President has the constitutional power to submit nominations for the Supreme Court. But the Senate need not confirm them --and, in this case, should not do so." Richard Nixon, who thinks that he will embody Griffin's "new leadership," agreed, not surprisingly, that Johnson should postpone all court appointments until Jan. 20, 1969.

If the Republican rebels keep up the fight, the battle promises to be spirited but probably not fatal for the President's men, who need only a simple majority for confirmation. Not only do the Democrats have close to a 2-to-l majority in the Senate, but several Republicans, including Minority Leader Everett Dirksen, have also promised to vote for confirmation. Fortas, said Dirksen, is "a very able lawyer" with "sound" philosophy. He called Thornberry, a Congressman for more than 14 years, a "very solid citizen,"

Griffin's rump group would have no hope on a direct vote, but with Congress rushing toward a hoped-for Aug. 3 adjournment, it might get its way with a filibuster. Though Majority Leader Mike Mansfield could ask for a vote of cloture to limit debate, he would need a two-thirds majority, always difficult to come by.

Some Concern. If all else fails, Johnson could keep the Senate in special session until his nominations are approved. Obtaining their seats only through cloture or a special session would, however, be something of a humiliation for Fortas and Thornberry. The President and his nominees thus have some cause for concern. There is at least a possibility, says Mansfield, that Earl Warren might have to delay his retirement.

The Republican argument has novelty on its side--but little else.

In this century alone, six Justices have been appointed in presidential election years, the last, William Brennan, being named by Republican Dwight D. Eisenhower little more than a month before the 1956 election, when the nation also had a chance to change its leadership. Chief Justice John Marshall was appointed by his friend John Adams only a few weeks before Thomas Jefferson was to take office. If the G.O.P. argument were followed through, noted Mansfield, "any time a President was elected to a second term, he would become a lame duck on the very first day of that term." Johnson himself was heard to mutter: "Some people think that the presidency should go into receivership during the next seven months."

For all the immediate furor, Johnson showed much of his oldtime skill in making his choices. After receiving Warren's letter of retirement, he submitted to the Senate's leadership three names for the new opening: Thornberry; Cyrus Vance, No. 2 man in the Viet Nam peace negotiations; and Henry Fowler, Secretary of the Treasury. All, along with Fortas as Chief Justice, were quietly approved. Vance was later dropped because Johnson felt that his departure from Paris would make it look as if the U.S. had given up hope on the peace talks. Fowler lost out because of the difficulty of finding a good replacement for him during the remaining months of the Johnson Administration, and because his departure might severely damage the U.S. in the international money markets.

Both Fortas and Thornberry, moreover, had already received Senate approval for the bench, and their judicial competence could not be seriously questioned again. As a former Congressman, well liked by nearly everyone, the Texan had the even greater advantage of appealing to Congress' disposition to look after its own, and of giving the Southwest a geographical representation it has lacked since Texas' Tom Clark re tired last year.

Though the cry of cronyism was not unexpected in Congress, most lawyers seemed unconcerned. "It's like having Einstein as a crony," says University of Chicago Professor Harry Kalven Jr. of Fortas. "There's nothing wrong with a crony if he's as good as this one."

If lawyers elected the Chief Justice, Fortas might very well have made it even without the help of his old friend. "I'm very enthusiastic about the appointment," says Philip Kurland, another Chicago professor. "In his understanding of people, problems, history, and the role of the court, I feel that Fortas ranks at the top."

Needed: Seasoning. It takes years for even the best Justice to find his place on the Supreme Court. Warren had only 15. But Chief Justice Marshall --that "gloomy malignity," as Jefferson called him--had 34 years to put stamp on the institution that was formed by him more than by anyone else. Oliver Wendell Holmes had 30 to build his reputation as the "Great Dissenter. Justice Hugo Black has had 31 years, William O. Douglas 29, to help write the decisions--and dissents--that guide the Court today. Fortas, who is 58, will probably have plenty of time, too.

He has already been remarkably influential in the short period that he has sat on the court. On issues involving race and criminal justice, he has generally sided with the liberal bloc of Warren Black, Douglas and Brennan. In the 1966-67 term, he agreed with Warren who has been chief spokesman for the liberals, on 97 out of a possible 112 decisions. Only Brennan sided with the Chief Justice more often--of 113 times.

On cases involving business and the economy, Fortas often went to the other side, disagreeing with the hostility toward mergers and corporate bigness. Dissenting from a decision that temporarily blocked the Penn Central merger last year, Fortas tartly noted that "the courts may be the principal guardians of the liberties of the people. They are not the chief Administrators of its economic destiny."

Reading It All. Apart from his reputation as a liberal--a useful but sometimes misleading label when applied to judicial decisions--Fortas has a personal concern for social justice. At his urging, Arnold, Fortas, and Porter, his law firm in Washington for nearly two decades, took on something like 100 free cases--far more than normal legal ethics would dictate. "He had a strong feeling that a law firm should not be operated completely for profit," says Thurman Arnold, a New Deal trustbuster and former federal appeals judge

As unpaid counsel for the defense in 1954 Fortas persuaded the District of Columbia Court of Appeals to adopt a broadened rule for criminal insanity ("An accused is not criminally responsible if his unlawful act was the product of mental disease or defect"). That rule brought the law, which had not been changed for more than a century, in line with modern psychiatry. The decision has induced other jurisdictions to redefine insanity.

Indeed, for a layman, his understanding of psychiatry is profound. Besides being a trustee of the William Alanson White Psychiatric Foundation, Fortas has written often for its journal, Psychiatry. Preparing to sit on one case that required psychiatric backing, he asked an expert to "give me just as much to read as you can think of-and then give me some more." The friend believes he read it all.

Citizen & State. Asked by the court in 1962 to bring before it the case of Clarence Earl Gideon, prisoner No. 003826 at the Florida State Prison, Fortas, even as a private lawyer, was instrumental in shaping the decision that guaranteed any indigent defendant a court-appointed lawyer. Gideon was more than a case; it became an article of faith. As a member of the court, Fortas has supported other decisions that have radically broadened the rights of defendants. "We're not just dealing with the criminal and society," he once told an attorney who was arguing for the police point of view, "but the relation between the citizen and the state.

In Re Gault, a decision he wrote last year is perhaps the high point of his judicial career so far. In theory the juvenile system allowed the judge paternal discretion in dealing with young offenders; in practice, they were often convicted on flimsy evidence. But juvenile courts, said Fortas, should be bound by the same rules as adult courts: "Neither the 14th Amendment nor the Bill of Rights is for adults alone. Under our Constitution, the condition of being a boy does not justify a kangaroo court." A dissent last month from the 5-to-4 decision that labeled public drunkenness a crime may eventually prove to be the majority opinion. Criminal penalties," argued Fortas, "may not be inflicted upon a person for being in a condition he is powerless to change."

"Whenever you put a man on the Supreme Court," Harry Truman once complained, "he ceases to be your friend" Many another President has voiced similar regrets: men frequently have a way of changing once they are confirmed, secure for life and, assuming good behavior, beholden to no one but themselves.

Yet so far at least, Abe Fortas, has remained Johnson's intimate friend. He is even closer to the President than Justice Felix Frankfurter was to F.D.R. Fortas is the true eminence grise of the Johnson Administration. No one outside knows accurately how many times Fortas has come through the back door of the White House but any figure would probably be too low.

To young aides, who speak of him in hushed tones, he is an object of respect--even awe.

The Johnson-Fortas relationship dates back to the late '30s, when Johnson was a Congressman and Fortas was director of the Interior Department's Division of Power, in a position to help Johnson with a Texas dam project. The two men came from different backgrounds. Johnson had worked his way up from the Texas hill country and was immersed in fundamentalist religion. Fortas was the Orthodox Jewish son of an immigrant cabinetmaker from Eneland. His father taught himself to read and write; his mother was always illiterate. Young Fortas was brought up in Memphis, worked later in a shoe store and played the violin in a dance band to help put himself through Southwestern at Memphis. He attended Yale Law School on a scholarship. By the time they met, both Johnson and Fortas were rising fast on the Washington scale of success. Both also shared a profound admiration for Franklin Roosevelt and his New Deal.

Second Nature. The friendship bloomed during the war--Fortas at 32, had risen to Under Secretary of the Interior. In 1948, Fortas probably saved L B J 's political career. Victor in the Texas senatorial primary by a margin of 87 votes, Johnson had been ruled off the ballot by a federal district judge pending an investigation for vote fraud. Fortas persuaded Mr. Justice Black, who had general judicial responsibility for the Circuit that includes Texas, when the Supreme Court was in recess, to overturn the ruling--and to put Johnson back on the ballot. "This, said Fortas, "is a political controversy, nothing more nor less."

Relying on Fortas has been second nature to Johnson ever since. When he became Vice President, Fortas helped him devise stringent rules that would prohibit companies doing business with the Government from discriminating against Negroes. After the assassination in Dallas, Fortas quickly persuaded Johnson that he should appoint the Warren Commission in order to inform the nation and the world about the assassin, in lieu of a trial. He was the first man that Walter Jenkins, one of the President's closest aides, called for help when he was arrested on a morals charge, and, together with Clark Clifford, he made the rounds of Washington newspapers, asking editors to look into the story carefully before printing it.

As Under Secretary of the Interior and later as Puerto Rico's paid counsel in Washington, Fortas had long and intimate connections with the island, which he has called "my second home." Johnson dispatched him to Puerto Rico in April 1965 as a secret go-between to the exile government of the Dominican Republic. Under the assumed name of J. B. Davidson, Fortas established an office in the Governor's summer home and set up a liaison between Johnson and Juan Bosch, the Dominican ex-President. Later, J. B. Davidson helped arrange the Republic's free elections. As one of Johnson's personal lawyers, Fortas also drew up the trust arrangement that regulates the Johnson fortune.

It probably never even occurred to Johnson that his friend's elevation to the high court would make him any less a presidential adviser. And, to date, it has not. Though the full extent of Fortas' influence will probably never be known--he vows never to write memoirs or leave important papers for nosy historians--he has been witness to nearly every great decision that Johnson has made. "Abe was usually called in on the real knotty problems," says one former White House aide, "the ones to which there are no hard answers."

One achievement for which Fortas can claim no laurels was Johnson's response to last summer's Detroit riots. Fortas wrote the President's message ordering federal troops into the city. It was an unfortunate speech, blatantly political and overly technical in a time that called for reassurance and sympathy. Johnson, however, was shocked that anybody would dare to criticize it. "Why," he told a visitor, "I had the best constitutional lawyer in the United States right here, and he wrote that."

Unlike most of the other men who have served Johnson, Fortas has never been abused or even nagged by him. The President, as much as his aides, seems almost intimidated by the man.

Where gifted men such as Robert McNamara and McGeorge Bundy have been discarded by the President, Fortas has endured. He has never put himself under Johnson's complete control.

A Secret Life. To most people, including the President no doubt, Fortas is a puzzling, enigmatic, even mysterious man. "I wouldn't be surprised," says one of his former law clerks, "if tomorrow I were to find out that Abe Fortas leads a secret life as a published poet in South America." Questioning counsel from the bench, he can be determined, abrupt, relentless in his search for the heart of a case. He can tear a poorly reasoned argument to tatters.

Off the bench, some say, he is no more agreeable. "Abe Fortas," declares one acquaintance, "is arrogant and abrasive." Says another: "He's cold, distant and cryptic." Others describe him as shy, reticent with people. "Well," allows Thurman Arnold, his former partner and a good friend, "he doesn't go around kissing babies."

Yet to Brother Brennan (Supreme Court Justices refer to one another fraternally), he is "an utterly delightful companion. In conference, no matter how tense the situation, he comes off with his delightful cracks." In the view of Madame Herve Alphand, wife of the former French ambassador and one of the most noted capital hostesses, he was entirely outgoing. "Zat Abe," she once commented, "he dances with all the girls--long, short, fat, and thin."

Wine & Mead. Fortas is something of an expert on French wine, distills his own mead on occasion, and whips up an excellent fondue. For "light reading" he is currently keeping on his reading table Robert Massie's Nicholas and Alexandra, Willie Morris' North Toward Home, and Giuseppe di Lampedusa's The Leopard.

His wife Carolyn is also a lawyer, specializing in taxes. A warm, vibrant woman with a touch of the feminist--she smokes cigars, insists on using her maiden name, Carolyn Agger, and tools around in her own Rolls-Royce--she seems devoted to her celebrated husband. With no children, the Fortases find ample time for recreation as well as cerebration. During the winter they ski; during the summer they swim. They summer in Westport, Conn., and their permanent home in Georgetown has a swimming pool boasting a bubble top for year-round use.

Aside from the law, Fortas' lifelong interest has been music. His Sunday afternoon music group is famous as the "3025 N Street Strictly-No-Refunds String Quartet." Any visiting violinist or cellist who passes through Washington is likely to be pressed into service. The Justice numbers Rudolf Serkin, Isaac Stern and Pablo Casals among his friends, and has helped to arrange the annual Casals Festival in Puerto Rico. In a jest that his enemies might not recognize, he has sometimes introduced himself at White House functions as "Abe Fortas--I am a violinist." His Italian Guidantus violin may be his proudest possession.

On the Team. On one point, everyone who knows Fortas is agreed: he is an excellent administrator, a quality that should serve him well in his new job. With only one of nine votes, the Chief Justice must lead the court more by persuasion than command. When he agrees with the majority, he assigns the writing of decisions, thus giving himself at least some control over the outcome of the case. He gives his views first in the private conferences in which the Justices discuss cases and, to some extent, determines what cases the court will consider. He also commands the prestige of his office, which can be used to help preserve unity or prevent disunity from becoming bitter and destructive.

Mostly, however, the Chief Justice must rely on the power of his argument, just like any other Justice. If past performance is any guide, this is where Fortas will excel. "Warren made his influence felt by personal charm and his position," says Professor Kalven. "Fortas will do it by being the best man on the team." In cases where he is by himself or has only one or two colleagues agreeing with him, whatever he does will make little difference, observes Yale Professor Alexander Bickel. But where he is in a minority of four, as he was last month in the public-drunkenness decision, the added power he has as Chief Justice might be enough to tip the scales and turn a dissent into a decision.

Even if he does not change the thrust of decisions, Fortas, an extraordinarily subtle and precise analyst, is likely to improve their quality. One justified criticism of the Warren court is that the decisions, though progressive and humane, were often so poorly written and negligent of precedent that they were confusing to lawyers and judges in lower courts, who must look on them as law.

That complaint is never made about Fortas' opinions, which Yale's Fred Rodell compares with those of Brandeis', one of the court's greatest craftsmen. "All Brandeis' briefs were beautiful," says Rodell. "There were no holes in them, no questions left unanswered, nothing missing. He could foresee every possible question."

Will the Fortas court be as active and adventuresome as the Warren court? The answer lies, ironically, not so much with Fortas as with Homer Thornberry, whose direction on the Supreme Court, despite a general record of moderate liberalism, is unpredictable. If he proves to be as liberal as Warren, whom he really replaces, the court will probably continue on much the same path. If he tends toward conservatism, it might move toward the right -- though probably not enough to satisfy the congressional critics. More vacancies might come even before Johnson leaves office. Black is 82; Douglas, 69, recently had an electronic pacemaker implanted in his chest to correct a slow heart rate; John Marshall Harlan, 69, has failing eyesight.

The Greatest Era. In his letter to President Johnson, Warren gave age as his sole reason for retiring. Still, it is not unlikely that he might have been prodded, as Republicans guessed, by the fear that a President Nixon would appoint a conservative who might undo much of what he had done. Nor is it altogether unlikely-- unless last week's nominations are killed by a Senate filibuster-- that Black and Douglas, also liberal, might be goaded by the same fear.

Still, the great controversies of the Warren era-- civil rights, reapportionment and criminal justice-- have largely been decided and the decisions are largely irreversible. "The work of the Warren era is finished," Fortas said last week. "It's done-- magnificently. It was the greatest era of court history since John Marshall, and perhaps one can drop that qualification."

Some scholars see the next few years as a period of consolidation in which the Fortas court will refine and clarify the sometimes cluttered landmarks of the Warren era. Others, like Yale's Bickel, suspect that the Fortas court may have even bigger problems, exert even a greater influence on the nation.

If the new Chief Justice has the good fortune to remain active as long as Warren has-- he is 77-- there will still be a Fortas court in 1987. If he lasts as long as Mr. Justice Holmes, who retired at 90, there will be a Fortas court in 2000. "The court is like the country," says Bickel, "with new forces and new constituencies regrouping. We have a whole set of new problems with very different social, economic, and political trends running than we had at the beginning of the Warren court."

Impact of Technology. At least a few of the court's concerns during the next decade or so are visible, if only dimly. "The Warren court readjusted the balance between authority and the individual," says Columbia Professor Alan Westin. "I suspect in the next decade the Supreme Court will have to think in terms of the impact of large-scale technology on the individual, increasingly in terms of privacy." Westin, like many others, sees much of the court's recent activism as a result of inaction by the other two branches of Government. Says he: "When the nation has a broad political consensus for moving forward, but the political machinery holds it back, the court must go ahead."

In a recent pamphlet, Concerning Dissent and Civil Disobedience, Fortas spoke forcefully of the need for order--and the right of dissent. The law, he believes, must be a living thing, responsive to social reality and human needs.

It must interest itself, he once wrote, "not in the mere learning of good and evil but in the practice of reasonably mature individual and community living." This comes about, he added, "not through the application of doctrine, but through the application of reason and humanity, maturely, to the complex facts of life." Only by imagination, common sense and compassion, Fortas believes, can the Supreme Court continue to meet the demand of a disturbed and swiftly changing society.

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