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Fat Free. Fortas was asked to appear before the committee for still another grilling last week, but he declined. Convinced that they had done sufficient damage to torpedo Fortas, the opposition forces on the committee agreed to send the matter to the Senate floor this week. There it will run into trouble—and not only on the pornography issue. The skillful managers of the case against Fortas, notably Senator Griffin, saw to it that new revelations about the Associate Justice were brought out almost every day. More doubts were raised by a disclosure last week that Fortas had accepted $15,000 for 18 hours of summer-school teaching at American University's law school. Though some other Justices accept fees, there is an ethical question about whether they should. What aggravates the question of Fortas' particularly generous fee is that it was donated by five big businessmen who some day may well have matters of interest come before the court.
Other questions about Fortas nagged the Senators. The objections to his role as Lyndon Johnson's backstairs adviser were heightened by reports that Fortas had substantially rewritten a first version of the President's 1966 State of the Union Message. Some Senators were also bothered by the fact that Chief Justice Earl Warren had not really resigned, but has only opted to retire if and when a successor was agreed upon. Republicans, scenting victory in November, thought that was a ploy to prevent Nixon from naming his own Chief Justice.
No Withdrawal. With all that, Republicans and Southern Democrats were in a strong position to block the appointment with a filibuster. Hubert Humphrey challenged Richard Nixon to call Republicans off the filibuster, so that the case could come to a vote, which Fortas would probably win. Nixon refused, but tried to steer a middle course that would not overly displease either liberals or conservatives. He called Fortas an able jurist, expressed his own distaste for a filibuster, but said that he did not want to interfere with a Senate matter.
Minority Leader Everett Dirksen, who favors Fortas and opposes the filibuster, despairs of the outcome. He estimates that 50 Senators will vote against shutting off debate, leaving far fewer than the two-thirds needed for cloture. After two failures on a cloture vote, Majority Leader Mike Mansfield is likely to withdraw the nomination, and the court will open its new session next month with Warren back on the bench.
If that happens, Johnson will be further humiliated, the status of Fortas diminished, and the reputation of the court further tarnished. Equally important, members of the court in the future may be reluctant to take unpopular stands, lest they lose the chance to become Chief Justice. Since Fortas' chances seem so hopeless, some friends have recommended that he withdraw his nomination. The embattled jurist has not done so, and plans to fight to the end.