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While Fortas delayed, pressure built up in Congress, and even Fortas' staunchest friends deserted him. Chairman Celler quietly ordered his Judiciary Committee staff to begin preparing articles of impeachment. With the agreement of House leaders, he and William McCulloch, the ranking Republican on the committee, talked with Mitchell. Though no one would say what Mitchell disclosed, his evidence was apparently convincing. "We got a vast amount of information," Celler told TIME Correspondent Neil MacNeil. "The Attorney General unfolded the whole story. It clinched the matter. It necessitated that the Judiciary Committee take some action unless Fortas resigned."
Violin Consolation. Finally aware of the forces arrayed against him, the Justice obliged. More than his own reputation worried him, he said. The court's prestige and independence were also endangered. He might have added that even if he had survived impeachment, his own position as a Justice would have been untenable. As it is, the Justice Department is continuing its investigation of his affairs. (Mrs. Fortas believed that the phone in their Georgetown home was being tapped.) For the moment, at least, Fortas, like everyone else, seemed vastly relieved. The day after he resigned, he consoled himself with his violin and the soothing elegance of Mozart and Haydn.
As self-serving as his comments may have been, Fortas accurately believed that a battle would have damaged the balance of the three branches of Government. Some in Washington already believed that the Administration had pushed too hard to dislodge Fortas. Philip Kurland, a Supreme Court scholar at the University of Chicago, suspected a "planned operation to dump him." Tennessee's Democratic Senator Albert Gore called for a congressional investigation to determine if the Republicans had used unreleased information to force Fortas to resign. Still, objections paled beside Fortas' admitted and gross indiscretion. In any case, regardless of the Administration's role, Congress would doubtless have met its constitutional responsibility to police the judiciary.
Even without impeachment, the case was certainly tragic. One of the most gifted lawyers of his generation, Fortas in 43 months on the bench had already proved himself an asset to a court that has often been faulted for its unlawyerlike decisions. Though he had been prevented last year from becoming Chief Justice by congressional opposition—an obstruction that nearly everyone now views as providential—he nevertheless might have become an ever greater influence on the court and country.
Mysteries and paradoxes in the case abounded, but one of the most puzzling aspects was Fortas' concern for what, by his standards, was a relatively small sum of money. Until he went on the bench, he grossed well over $100,000 a year; some estimates go as high as $250,000. His wife, a noted tax lawyer in his old firm of Arnold and Porter, still makes more than $100,000. They lived exceedingly well, but Fortas has also in the past freely donated his expensive time and talent to causes and people he believed in. As it happens, the recent pay raise for Supreme Court Justices was exactly $20,500—$500 more than Wolfson offered.