May 14, 1969: Fortas Resigns from Supreme Court Due to ‘Ugly Bluff’ by Nixon Justice Department

Abe Fortas. [Source: US Senate]Abe Fortas resigns from the Supreme Court under pressure. Fortas, a liberal Democrat and political crony of outgoing president Lyndon Johnson, was originally chosen by Johnson to replace retiring Chief Justice Earl Warren, but conservatives in the Senate blocked Fortas’s confirmation (see June 23, 1969). President Nixon intended to fill the Court with as many of his choices as possible, and he, along with conservative Republicans and Democrats who do not agree with Fortas’s liberal stance on civil rights, targeted Fortas for a smear campaign designed to force him off the bench. Nixon used what White House counsel John Dean will later call “an ugly bluff” against Fortas: He has Attorney General John Mitchell inform Fortas that he intends to open a special probe into Fortas’s dealings—while on the bench—with a financier already under investigation. Mitchell insinuates that he will put Fortas’s wife, herself an attorney and partner at Fortas’s former law firm, and other former partners of Fortas’s on the witness stand. Whether Fortas actually had any direct illegal dealings with this financier is unclear—certainly his dealings had such an appearance—but the bluff worked; Fortas agreed to retire early, thus clearing a position on the Court for Nixon to fill. Nixon will find it difficult to replace Fortas with one of the Southern conservatives he wants on the Court; Senate Democrats will lead successful efforts to block the nomination of two of Nixon’s nominees, the respected, moderately conservative Clement Haynsworth, and the virulently racist G. Harrold Carswell, himself recommended by Mitchell’s assistant, William Rehnquist. (Carswell’s failed nomination will produce a memorable statement from Senator Roman Hruska (R-NE), who, in defense of Carswell, tells the Senate: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”) Nixon will use the defeats to make political hay in the South by claiming that Senate Democrats do not want a Southerner on the bench. [Dean, 2007, pp. 127-129]