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For all the immediate furor, Johnson showed much of his oldtime skill in making his choices. After receiving Warren's letter of retirement, he submitted to the Senate's leadership three names for the new opening: Thornberry; Cyrus Vance, No. 2 man in the Viet Nam peace negotiations; and Henry Fowler, Secretary of the Treasury. All, along with Fortas as Chief Justice, were quietly approved. Vance was later dropped because Johnson felt that his departure from Paris would make it look as if the U.S. had given up hope on the peace talks. Fowler lost out because of the difficulty of finding a good replacement for him during the remaining months of the Johnson Administration, and because his departure might severely damage the U.S. in the international money markets.
Both Fortas and Thornberry, moreover, had already received Senate approval for the bench, and their judicial competence could not be seriously questioned again. As a former Congressman, well liked by nearly everyone, the Texan had the even greater advantage of appealing to Congress' disposition to look after its own, and of giving the Southwest a geographical representation it has lacked since Texas' Tom Clark re tired last year.
Though the cry of cronyism was not unexpected in Congress, most lawyers seemed unconcerned. "It's like having Einstein as a crony," says University of Chicago Professor Harry Kalven Jr. of Fortas. "There's nothing wrong with a crony if he's as good as this one."
If lawyers elected the Chief Justice, Fortas might very well have made it even without the help of his old friend. "I'm very enthusiastic about the appointment," says Philip Kurland, another Chicago professor. "In his understanding of people, problems, history, and the role of the court, I feel that Fortas ranks at the top."
Needed: Seasoning. It takes years for even the best Justice to find his place on the Supreme Court. Warren had only 15. But Chief Justice Marshall —that "gloomy malignity," as Jefferson called him—had 34 years to put stamp on the institution that was formed by him more than by anyone else. Oliver Wendell Holmes had 30 to build his reputation as the "Great Dissenter. Justice Hugo Black has had 31 years, William O. Douglas 29, to help write the decisions—and dissents—that guide the Court today. Fortas, who is 58, will probably have plenty of time, too.
He has already been remarkably influential in the short period that he has sat on the court. On issues involving race and criminal justice, he has generally sided with the liberal bloc of Warren Black, Douglas and Brennan. In the 1966-67 term, he agreed with Warren who has been chief spokesman for the liberals, on 97 out of a possible 112 decisions. Only Brennan sided with the Chief Justice more often—of 113 times.
On cases involving business and the economy, Fortas often went to the other side, disagreeing with the hostility toward mergers and corporate bigness. Dissenting from a decision that temporarily blocked the Penn Central merger last year, Fortas tartly noted that "the courts may be the principal guardians of the liberties of the people. They are not the chief Administrators of its economic destiny."