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Beyond Fortas' personal agony, some saw in him the pathetic symbol of the Johnson years—that perhaps he was even representative of the old liberal era that began with the New Deal. Motivated by unquestioned humanitarian ideals, many such men nevertheless grew so accustomed over 30 years to power and influence—and the material goods both brought—that they believed they could do no wrong. Lyndon Johnson's self-righteous dismissal of his critics was not so very different from Abe Fortas' arrogant assumption that he had done nothing wrong in dealing with a man like Wolfson. "Fortas was the guy," one Johnson intimate remembered, "who was most responsible for Johnson's never answering criticism. 'Leave it alone,' he'd say. 'Don't dignify it.' "
With Fortas' resignation and the retirement next month of Chief Justice Warren, Nixon will have an unprecedented opportunity to change the court in the first six months of his presidency. At the same time, the near-impeachment has circumscribed his own options, probably ruling out anyone, like Attorney General Mitchell, who could be tagged, as Fortas was, the President's "crony." It is more likely now that Nixon will look to the lower courts or to the law schools, where he could find distinguished, nonpartisan professors. For Chief Justice, he might elevate someone already on the Supreme Court. Associate Justice Potter Stewart, an Eisenhower appointee, is considered a sound, noncontroversial choice for the spot. Somewhat to the right of center, Stewart has a solid, if not brilliant reputation. The two new openings might be filled by Henry Friendly, a judge on the 2nd U.S. Court of Appeals, Harvard's Paul Freund, noted civil libertarian and authority on the Supreme Court, or Warren Burger, formerly an Eisenhower Assistant Attorney General and now a judge on the District of Columbia's Court of Appeals.
The New Men. Whoever they are, the new men will probably be more conservative than either Fortas or Warren, who were in close agreement on most issues. Still, conservative critics who expect a turnabout in decisions are almost certain to be disappointed. For one thing, the major decisions of the Warren Court are largely irreversible, already part of the social fabric. For another, the court almost always changes at a pace that can only be called glacial. Innovations usually proceed decision by decision, year by year.
What change there is can usually be measured only by degree. If the new appointees are in fact conservative, their effect will probably be only to slow legal innovation. It is far from certain that Nixon, even if he tried, could swing the court in the direction he wanted. Justices often disappoint Presidents. "You shoot an arrow into a far-distant future when you appoint a Justice," says Yale Law Professor Alexander Bickel. "And not the man himself can tell you what he will think about some of the problems that he will face."