The Posthumous Case for Impeaching Abe Fortas

Recall 1968 and the failed confirmation of Abe Fortas to be Chief Justice of the United States. President Lyndon Johnson had announced he was not seeking reelection; Republican presidential candidate Richard Nixon menaced in the wings. Chief Justice Earl Warren announced his resignation—contingent upon the Senate’s confirmation of his successor—and thereby auspiciously created one last vacancy for LBJ to fill. LBJ nominated Associate Justice Abe Fortas as the inside candidate. Homer Thornberry was nominated to fill Fortas’s to-be vacated seat.

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an open secret in official Washington.

Under oath, Fortas decided to put the allegations to rest with this testimony: “Let me say in the first place—and make this absolutely clear—that since I have been a Justice, the President of the United States has never, directly or indirectly, approximately or remotely, talked to me about anything before the Court or that might come before the Court. I want to make that absolutely clear.”

Except, that really wasn’t the truth—far from it.

Documentary evidence has long been available that Fortas collaborated with the FBI to influence the Supreme Court’s resolution of Black v. United States, 385 U.S. 26 (1966), a case concerning FBI wiretapping from which Fortas was supposed to have been disqualified.

Released more recently by the LBJ Library in Austin, Texas is the LBJ audio tape that recorded the October 6, 1966 telephone call between Fortas and LBJ discussing the then-pending case. That audio is available for download (search for conversation 10929, then cue the MP3 to 7:48 to end). The Fortas half of the dialogue is hard to make out and both parties speak elliptically, but for those familiar with the episode it is clear the subject is wiretapping and the forthcoming Black opinion. For additional context, it is helpful to consult the October 25, 1966 memo that then-FBI Assistant Director Cartha “Deke” DeLoach had prepared on Fortas’s leaks of information (attached; click to enlarge).

What makes this episode particularly interesting is that Hoover’s FBI, including DeLoach who was then still serving, likely knew the Fortas statement was untrue. Notwithstanding, DeLoach and the FBI assisted the President in trying to secure Fortas’s confirmation. Also interesting, LBJ had declined to submit Fortas to the usual background check, even though Fortas had been subject to such reviews in 1964 after the Walter Jenkins sex scandal and once again less than a year later in 1965 upon Fortas’s nomination to be Associate Justice.

It is likely infrequent that Supreme Court nominees outright lie. After all, it has long been a felony to knowingly and willfully “make[] any materially false… statement or representation” in any “matter within the jurisdiction of the… legislative… branch of the Government of the United States.” That offense could provide a future willing Congress with grounds to impeach and convict the appointee for the high crime and misdemeanor of having made a materially false statement to the Senate.

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