Abe Fortas Dead at 71

Abe Fortas, the fifth Jew to serve on the United States Supreme Court and the first to have been nominated for the post of Chief Justice, died at the George-town University Hospital here last night at the age of 71.

Fortas was named an Associate Justice of the Supreme Court by President Lyndon Johnson in June, 1966, succeeding Arthur Goldberg who subsequently became U.S. Ambassador to the United Nations. In June, 1968, Johnson nominated Fortas to succeed retiring Chief Justice Earl Warren.

But the nomination ran into powerful opposition from Senate Republicans and some Democrats over what they regarded as a “lame duck” appointment by Johnson who had already announced that he would not seek a second term.

Although the Senate Judiciary Committee approved the nomination by a 10-6 vote and sent it to the full Senate, a bitter fight ensued during which charges were raised that anti-Semitism was a factor in the opposition to Fortas. With a filibuster threatened by anti-Fortas forces led by Sen. Robert Griffin (R. Mich.), Johnson withdrew the nomination at Fortas’ request.

The charges that anti-Semitism “is definitely playing a part” in the apposition to Fortas was made in the Senate by Sen. Joseph Clark (D. Pa.) who recalled the struggle that followed the nomination of Justice Louis Brandeis, the first Jew named to the Supreme Court. But the charge was never confirmed.

RESIGNED UNDER SHADOW OF SCANDAL

In May, 1969, Fortas resigned from the Supreme Court under a shadow of scandal. He was under fire for accepting–but later returning–a $20,000 fee from the Wolfson Foundation, one of the founders of which, Louis Wolfson, was then serving a prison term for stock manipulation. The resignation was submitted to President Nixon who immediately accepted it.

Fortas returned to private low practice Only two weeks before his death, he appeared be fore the Supreme Court for the first time since his resignation to argue a case.

The appointment of Brandeis to the Supreme Court by President Wilson in 1916 established what was seen by many as a tradition of a “Jewish” seat on the nation’s highest court. Brandeis served until 1939. He was joined in 1932 by Benjamin Cardazo who served until 1938 and followed by Felix Frankfurter who served from 1939 to 1962.

Arthur Goldberg served on the court from 1962 to 1965 and his resignation was widely believed to have been forced by Johnson to create a vacancy for Fortas. No Jew has been appointed to the Supreme Court since Fortas resigned.

EARNED REPUTATION AS A LIBERAL

Fortas was a prominent Washington lawyer before his appointment to the bench. He earned his reputation as a liberal when he served as counsel for the accused in the famous Supreme Court case of Gideon v. Wainwright which established the right of counsel for the poor.

While on the Supreme Court he consistently voted in criminal appeals and civil liberties cases as the crucial fifth man of the activist bloc formed by Chief Justice Warren and Justices Hugo Black, William Brennan Jr., and William Douglas.

At the time of his nomination to the court, Fortas told the Jewish Telegraphic Agency that he considers himself to be Jewish. He said he made that statement to clarify his own conception of religious identity in view of his lack of formal affiliation with Jewish institutions or organizations.

Nevertheless, he was well known as a regular contributor to the United Jewish Appeal in Washington. He appeared as a speaker several times before Jewish organizations after becoming a Supreme Court Justice and consistently manifested a warm, friendly attitude toward Israel.

HAD HUMBLE BEGINNINGS

Fortas, a close personal friend of President Johnson, who also served in government posts under Presidents Roosevelt and Truman, had humble beginnings. Born in Memphis in June 1910, the lost of five children of a Jewish cabinet-maker who had immigrated to the U.S. from England, he was graduated from Southwestern College in Memphis and from the Yale Law School where he taught briefly before coming to Washington as one of the “bright young men” of President Roosevelt’s New Deal.

He served in about a dozen administrative positions and at the age of 32 became Under Secretary of Interior to Harold Ickes. He first met Johnson, then a young Congressman from Texas, in the late 1930s and impressed the future President as a valuable counselor.

Fortas was a member of the President’s Committee on Equal Opportunity in the Armed Forces and of the National Citizens Committee for Community Relations and served as an advisor to the U.S. delegation to the United Nations in 1945.

Fortas was awarded the Stephen Wise award by the American Jewish Congress in 1966 and had been a member of the national advisory committee of the AJCongress’ Commission on Law and Social Action.