Wednesday, February 16, 2011

Thomas v. Fortas

While I was posting the story yesterday about Supreme Court Justice Clarence Thomas palling around with the Koch brothers in Palm Springs, I had a vague recollection of a similar event in history wherein a member of the Supreme Court drew fire for being friends with and accepting favors from people who might later be parties to cases brought before the Court.

In 1968 President Lyndon Johnson nominated Associate Justice Abe Fortas as Chief Justice to replace the retiring Earl Warren. But Mr. Fortas had accepted $15,000 in speaking fees from American University Law School, and that got the attenion of the U.S. Senate.

The money had not come from the university, but from private business interests that altogether 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 not illegal, the size of the fee raised much concern about the Court’s insulation from private interests, especially as it was funded by Fortas’s former clients and partners. The $15,000 represented more than 40% of a Supreme Court justice’s salary and was seven times what any other American University seminar leader had ever been paid.

The Republicans and Dixiecrats (they were still around; the Southern Strategy would be a Nixon campaign tactic) successfully filibustered Mr. Fortas’s nomination.

Later, Mr. Fortas faced further scrutiny.

Fortas remained on the bench, but in 1969, a new scandal arose. Fortas had accepted a $20,000 retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. Fortas 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 is alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon; he did ask Fortas to help him secure a pardon from LBJ, which Fortas claimed that he did not do. Fortas recused himself from Wolfson’s case when it came before the Court and had returned the retainer, but not until Wolfson had been indicted twice.

Mr. Fortas resigned from the Court and spent the rest of his life in private practice, occasionally appearing before his former colleagues at the Supreme Court.

In the mind of the supporters of Clarence Thomas, what Abe Fortas did was all in a day’s work at the Court. The difference? Well, that was then, this is now, and Clarence Thomas was appointed by a Republican.