Beware of Texans Bearing Friends

If you can recall back to the days before 14 Senators defused the Nuclear Option, one of the big issues was whether a filibuster of a judicial nomination was "unprecedented." And the key factual question was whether LBJ's nomination of Abe Fortas to move up to chief justice had been filibustered in 1968.

Of course it had, as David Greenberg proved, and various attempts to show that it wasn't really a filibuster were laughable. (They said it wasn't a partisan filibuster -- true, Southern right-wingers were still Democrats back then -- or that it didn't last that long, or that there wasn't proof that Fortas had majority support at the outset, or that it was irrelevant because Fortas had been confirmed as an associate justice and the filibuster blocked his promotion, not his appointment.)

In the end, the right-wing argument for writing the Fortas filibuster out of history came down to this: He was a really, really bad guy. If you believe that, I always thought it should support the case for the filibuster. After all, sometimes a president might nominate a really, really bad guy and his allies in the Senate might be willing to go along with it, unless a truth-telling minority stands in the way.

In fact, Fortas was not a really really bad guy. Among other things, he had been Clarence Gideon's lawyer in the pro bono case that established our right to legal representation. He did exercise what we would now call poor judgement in accepting payments from a foundation run by a dubious character, but that was not known at the time of the filibuster.

But he did come to a sad end, and his reputation is not what it should be. It is not the financial shenanigans that stained Fortas's reputation, but the fact that he could not make himself independent from his career patron, LBJ. As Laura Kalman's biography of Fortas showed, the far more disturbing aspect of his tenure on the Court was that he continued to provide personal and political advice to the president while sitting on the court. This deeply compromises the independence of the Court.

Yesterday's news that Bush was asking conservatives to back off from attacking Alberto Gonzales -- "my friend" -- and the clear indication that Bush strongly wants to appoint Gonzales to the Court, should bring Fortas to mind. In fact, when is the last time a president appointed someone to the Court with whom he had such a close personal relationship? Clinton hardly knew Breyer or Ginsburg; Reagan hardly knew Bork or O'Connor and probably not Kennedy, etc. The last is certainly Fortas.

(I mentioned this question to a distinguished attorney friend who I ran into on the subway this morning, and he immediately reeled off the names of three Truman appointees who were congressional cronies, one of whom I'd never heard of, but agreed that Fortas, like Gonzalez, was highly unusual in the degree to which his career was intertwined with the president's. And unlike Fortas, Gonzalez's entire career is dependent on the president.)

When LBJ tried to move Fortas up to Chief Justice, he tried to appoint a Texas protege, Rep. Homer Thornberry -- who I think held LBJ's old seat in the House -- to replace him on the Court.

So I guess it's a Texas thing.

And this is a reminder that, above all else, independence is an essential characteristic of any judge and a Supreme Court justice in particular.  The torture memos are bad in themselves, but they are also evidence that when Gonzalez had an opportunity to exercise some independence, by saying that there are values more important than giving the executive branch a shaky legal rationale to do what it wants to do, he did not exercise it.

There should be three concerns with a Supreme Court nomination: Ideology (is the nominee, who will be a conservative, within the conservative mainstream or beyond it); qualifications; and independence. That means independence from the president certainly, but it also means independence from some of the other political forces that will try to shape these nominations to their liking. Let's not forget about the third.