We are not final because we are infallible, but we are infallible only because we are final.
—Supreme Court Justice Robert Jackson (1941-54).
The third branch of the U.S. Government is intimate, unhurried and arcane, almost totally devoid of pomp or visible drama. Yet the Supreme Court's decisions affect every American, living and unborn. And it is the final, irrevocable judge of every President and Congress. Thus last week, when Lyndon Johnson nominated Associate Justice Abe Fortas to be the 15th Chief Justice of the United States, his selection was almost as significant as the election of a new President in November. A President cannot be elected more than twice. A Chief Justice can remain at the head of the world's most powerful court virtually as long as he lives or desires.
In view of President Johnson's fondness for unexpected appointments, the nomination of Fortas to succeed Earl Warren was surprising only in its predictability. A close friend and adviser, whom Johnson had named to take Arthur Goldberg's place in 1965, Fortas has distinguished himself in three Sessions on the Supreme Court, closely following—and to an increasing degree leading—the activist bloc that has dominated the Warren court for the past 15 years. If he was not a surprise, he was, at least in one way, unique. The fifth Jew to sit on the bench—the others were Louis Brandeis, Benjamin Cardozo, Felix Frankfurter and Goldberg—he would be the first of his religion to hold the third highest office in the nation.
Expectable in almost every other way, the nomination nonetheless provoked an unexpected reaction, arousing more opposition in the Senate than any other court appointment since 1930—when Herbert Hoover's choice of John J. Parker was rejected by a margin of two votes. But Parker was denied the post because of labor and Negro antipathy. Fortas is opposed not for what he has done but for what he is: the choice of a man who will be in office for less than seven more months, and the President's close friend and confidant to boot. The appointment smacked of "cronyism at its worst," said Michigan's Robert Griffin, "and everybody knows it." The charge of cronyism was reinforced by the fact that, to fill the vacancy left by Earl Warren's retirement and Fortas' move up, Lyndon Johnson appointed his old friend and fellow Texan, Homer Thornberry (see box, page 15).