- - Friday, December 20, 2019

In this age of historical amnesia, most Americans have little long-term political perspective.

People unfamiliar with the vicious personal attacks made on George Washington by gutter press journalists covertly funded by Thomas Jefferson (while he was serving in Washington’s cabinet) think that today’s “deep state” efforts to undermine a sitting president are something new. In fact, they have occurred, intermittently, since the 18th century. 

The same can be said of the U.S. Supreme Court. From early on, there have been episodic attempts by presidents to stack the high court in their favor, and efforts by the legislative branch to hobble, pressure or undercut the court or individual justices.

Even the sainted Abraham Lincoln wasn’t above naming an old crony and campaign henchman, fellow Illinois lawyer David Davis — a back-slapping, importunate political hack — to the highest court in the land. Davis was such a patronage-hungry pest that even Lincoln complained about what a nuisance he was.

Not content with appointing the odd hack or crony, another major president, Franklin Roosevelt, actually tried to pack the Supreme Court with extra justices of his choosing. This attempt was so brazen that it was even rejected by most of FDR’s fellow Democrats.

For most Americans, however, the partisan struggle for control of the Supreme Court begins with a single word: Bork. Depending on how it is used, it can be a noun or a verb. As a noun, it stands for Robert Bork, an outstanding legal scholar and jurist of unblemished character whose 1987 nomination to the Supreme Court was rejected, not on grounds of competence or character, but because of his “strict constructionist” approach to constitutional issues.

Which is how the noun morphed into a verb, to “Bork” meaning to reject judicial nominess for partisan considerations having nothing to do with their legal or ethical qualifications.

In “The Battle for the Marble Palace” author and legal scholar Michael Bobelian argues persuasively that “Borking” didn’t begin with Bork, but originated 19 years earlier when Republican and conservative Democratic senators derailed Lyndon Johnson’s attempt to make his longtime confidant Abe Fortas chief justice of the United States.

Mr. Bobelian quotes veteran Democratic operative Joseph Califano, who “had a front-row seat to Fortas’s tragedy,” as equating Bork with Fortas. Both, in Mr. Califano’s words, were examples of “A lame-duck President nominating a brilliant lawyer … who shared his political philosophy [at] a time of transition for the Court and a desire to reverse a host of split decisions.”

The comparison is superficially accurate. But there was a crucial difference between Bork and Fortas. While the opponents of both men were driven by political and ideological motives, unlike Bork, who was personally “clean,” Fortas was defeated because of serious ethical lapses that emerged during his confirmation hearings.

Abe Fortas was, indeed, an intelligent, gifted attorney. But his Washington career had been based on influence-peddling and political odd jobs, most notably on behalf of Lyndon Johnson, from his days as all-powerful (and corrupt) Senate majority leader to his succession to the presidency after JFK’s assassination. While maintaining a lucrative law practice representing corporate and political fat cats, Fortas also served as a sort of liberal Roy Cohn to the ethically-challenged LBJ.

As the author concedes, Fortas was “a political fixer who’d dug out Johnson from many a fox hole. His greatest rescue came in Johnson’s 1948 Senate primary. Turning aside accusations of fraud, Fortas’ legal wizardry secured Johnson the dubious election by a mere 87 votes … Their relationship encompassed every aspect of Johnson’s life. Fortas managed Johnson’s lucrative financial holdings,” and even tried to suppress incriminating news coverage for him.

Fortas himself was also ethically challenged. Already a wealthy man, he had accepted substantial financial payments from crooked Wall Street financier (and later jailbird), Louis Wolfson and taken inflated sums, raised for him by his old law partner, for teaching a law course while on the government payroll.

For Abe Fortas, like his mentor LBJ, public service and personal greed went hand in hand. As one anti-corruption Democratic senator, William Proxmire, exclaimed: “I can’t understand it. I just can’t. He’s a wealthy man. His wife has a lucrative law practice. They have no children … to send through college. Why did he do it?”  

This sets Fortas aside from — and considerably below — judicial nominees, both conservative and liberal, who have subsequently been “Borked” — and sometimes personally smeared — for purely partisan reasons. While Michael Bobelian minimizes this crucial difference, he succeeds admirably in narrating the fierce, dramatic and sometimes tragic battle for control of “The Marble Palace.” The battle still rages.

• Aram Bakshian Jr., a former aide to Presidents Nixon, Ford and Reagan, has written widely on politics, history, gastronomy and the arts.

• • •


By Michael Bobelian

Schaffner Press, $31.99, 475 pages

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