Photo Credit: Jewish Press

Sadly, and perhaps unjustly, Abe Fortas (1910-82) is best known as a Supreme Court justice whose nomination by President Johnson to serve as chief justice was rejected, and for becoming the first justice – and, to date, the only one – to give up his Supreme Court seat while under fire.

A strong civil libertarian, he played an important role in advancing civil liberties as a lawyer/advocate and on the High Court, where he served for four years as a member of the Warren Court’s liberal bloc, issuing rulings favoring the rights of minorities, criminal defendants, and individual liberty.

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Fortas’ parents were deeply committed Jews, part of the massive Jewish immigration to America from Eastern and Southern Europe during the turn of the 20th century. Although raised Orthodox, Fortas was himself not observant, to the point that he married a Protestant; as Professor David Dalin writes, “[F]or Fortas, his parents’ Judaism was always an obstacle to be overcome rather than a heritage to be celebrated.”

But although not formally affiliated with any Jewish groups, Fortas was a UJA contributor who often addressed various Jewish organizations and who earned the Stephen S. Wise award from the American Jewish Congress. Moreover, he was an unabashed Israel supporter who influenced LBJ’s strong pro-Israel position during the 1967 Arab-Israeli War; as author/historian Laura Kalman aptly put it, he was “a Jew who cared more about Israel than Judaism.”

At a time when many American Jews were struggling to harmonize their bitter opposition to America’s role in the Vietnam War with their support for increased U.S. involvement in the Mideast, Fortas emerged as a leading spokesman in clearly distinguishing between the two American involvements. He argued that the U.S. had crucially important economic and security needs in the Mideast, in which Israel, a key ally, played an important role, and that Israel had never required or requested American “footprints on the ground,” i.e., that American soldiers fight their battles.

After his graduation from Yale Law School in 1933, Fortas was appointed to the Yale law faculty. Entering full-time government service with the Securities and Exchange Commission in 1937, he served as general counsel for the Public Works Administration before serving as Undersecretary of the Interior from 1942-46, and was adviser to the American delegation at the 1945 San Francisco Conference that founded the UN.

Fortas entered private practice in 1946, and his firm, Arnold, Fortas & Porter, became one of the most prominent in Washington, representing many major corporations. As counsel for Lyndon Johnson, he successfully contested the challenge to the validity of Johnson’s election to the U.S. Senate in 1948, a service which Johnson long remembered and which launched a long and close friendship between the two leaders.

In the 1950s, Fortas and his firm became involved in civil liberties cases, and some of his cases became legal landmarks. For example, in the renowned Gideon v. Wainwright (1963), he successfully argued that states are required to provide free counsel to indigent persons charged with committing serious crimes, and in Durham v. U.S. (1954), he persuaded the court to adopt a new standard for criminal insanity whereby an accused will not be deemed criminally responsible if his unlawful act was a product of mental disease or defect.

Supreme Court card signed by Fortas

When President Johnson assumed office after JFK’s death in 1963, Fortas became a key presidential aide and advisor; he handled two sensitive administration scandals, aided the president in the Dominican crisis, and advised the president on issues ranging from racial unrest to the Vietnam War.

Johnson appointed Fortas to the Supreme Court in 1965, where he became closely aligned with his former law school professor, Justice William O. Douglas, in liberal decisions against censorship, racial discrimination, restrictions of the rights of political dissenters, and violations of church-state separation. In one of his most significant Court opinions, In re Gault, Fortas extended due process rights to juveniles tried in the juvenile courts.

He believed firmly in the protection of personal privacy and opposed the widespread use of civil disobedience to attain political ends. In his pamphlet, Concerning Dissent and Civil Disobedience (1968), he presented a rational yet passionate plea for the rejection of political violence and for respect of the law and the American democratic process.

When Earl Warren resigned on June 13, 1968, LBJ nominated Fortas to serve as the first Jewish chief justice (there had, and still has, never been one), a nomination which subjected both men to serious public criticism. In the exceptionally rare exhibit shown here, Johnson demonstrates his warm friendship and affection for the beleaguered justice, writing, “To my beloved friend Abe Fortas, with respect and gratitude” on the flyleaf of To Heal and To Build: The Programs of President Lyndon B. Johnson (1968).

After a great public scandal involving Fortas’ representation of a charitable foundation and his acceptance of a $15,000 fee for teaching a series of university seminars, Fortas’ nomination as chief justice was rejected as opponents succeeded in blocking his confirmation, charging that he was too liberal and too close an advisor to the president.

While he always maintained that he had done no wrong, he became the first nominee for chief justice since 1775 (when the Senate rejected President Washington’s nomination of John Rutledge) to fail to win confirmation when LBJ was forced to withdraw the nomination in 1968.

A year later, with Nixon as president, Life Magazine ran an infamous story claiming that Fortas had contracted for an annual fee of $20,000 from the charitable Wolfson Family Foundation while Louis E. Wolfson was under investigation for violating federal securities law. Fortas returned his fee and severed his connection with the Foundation, but the disclosure of the association aroused bitter public controversy and, though he vigorously denied any misconduct, in 1969 he became the first justice to resign from the court. Ironically, Nixon’s next two nominees for Fortas’ seat, Clement Haynsworth and G. Harrold Carswell, were also rejected before Harry Blackmun was confirmed.

 

* * * * *

Five years later, in this fascinating April 1, 1974 correspondence on his Fortas & Coven letterhead, Fortas writes:

If President Nixon is convicted upon impeachment, this will be the first time this has occurred in our history. Accordingly, there is no precedent with respect to the availability or nonavailability of the franking privilege. Under the circumstances, I don’t believe that it would be appropriate for me to express an opinion.

The “franking privilege,” typically granted to certain elected officials, is the privilege to send mail without charge by adding one’s signature or a facsimile thereof to the letter in lieu of a postage stamp. Common uses of the franking privilege include replies to letters sent by citizens, and newsletters to keep citizens informed of the privilege-holder’s activities.

Although the privilege has long been considered an important means for facilitating communication between elected officials and their constituents, its use has commonly been criticized as a way for officials to campaign for reelection and to otherwise boost themselves at the expense of the taxpayer.

And although the privilege is often characterized as a “free frank,” it is not “free.” The United States Postal Service is compensated for servicing these mails through annual tax-funded appropriations; in other words, you, the citizen, are paying for it.

In the United States, franking dates back to the Continental Congress, which conferred the privilege on its members in 1775, and the first Congress followed suit by enacting a franking law during its very first session in 1789. The use of a franking privilege is not absolute, but is generally limited to official business, constituent bulk mails, and other uses as prescribed by law, such as the “Congressional Frank” afforded to members of Congress.

Members of the Senate and the House are authorized to send franked mail to their constituents, as is the vice president, who serves as Senate president. Interestingly, a sitting president does not have the franking privilege, but a former president and his spouse or widow do. (Franks by former presidents are quite valuable and eagerly sought by collectors.)

As to the issue that Fortas dodges in our letter: According to a 1974 opinion by the Department of Justice concerning Nixon’s resignation, a president who resigns before his official term in office expires is entitled to the same lifetime pension and benefits that are authorized for other former presidents. However, a president who is removed from office by impeachment forfeits his pension and related benefits. As stated in a letter from Marty C. Lawton, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, to the General Services Administration on August 15, 1974:

The FPA [Former President’s Act] provides certain benefits to “former Presidents.” A former President is defined in section (f) as a person who has been President, is not currently President, and who was not removed from office pursuant to impeachment and conviction in the Senate. The statutory language is unambiguous and Mr. Nixon clearly meets the statutory definition of a former President [emphasis added].

Thus, because Nixon ultimately resigned his presidency on August 9, 1974, and was never actually removed from office, he retained his franking privilege.

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Saul Jay Singer serves as senior legal ethics counsel with the District of Columbia Bar and is a collector of extraordinary original Judaica documents and letters. He welcomes comments at saul.singer@verizon.net.