No need to pack the Supreme Court, just unpack it

Democrats who are fretting over Amy Coney Barrett—the creepy Aunt Lydia clone from “The Handmaid’s Tale”—becoming the sixth right-wing justice on the U.S. Supreme Court are suggesting that a Joe Biden administration use its constitutional prerogative and add additional members to the court in an effort to restore jurisprudential equilibrium to the court. There is another solution to returning balance to the nation’s highest court that does not entail “packing.”

By reviewing false statements made by Donald Trump nominee Brett Kavanaugh during his Senate confirmation hearing, the circumstances behind former Associate Justice Anthony Kennedy’s sudden retirement and its relationship to Kennedy’s son’s executive position at major Trump lender Deutsche Bank, Justice Clarence Thomas’s and wife, Ginni Thomas’s, unethical side political activities, a page can be borrowed from the scandal that drove Associate Supreme Court Justice Abe Fortas from the bench in 1969. By restoring the ethical standards applied against Fortas, a Texas crony of Lyndon Baines Johnson, the current Supreme Court can be “unpacked” of its unsavory members. If Barrett is found to have lied during her own hearing, she can be added to the unpacking list. By restoring ethical standards to the members of the court and driving off the bench the bad applies, a President Joe Biden could and should find himself appointing at least three replacements to the Supreme Court.

In 1965, President Johnson nominated Fortas to the Supreme Court after Johnson persuaded Associate Justice Arthur Goldberg to resign from the court to become U.S. ambassador to the United Nations. The move remains controversial as Goldberg gave up a life appointment for what amounted to a temporary job at the UN. For Johnson, Fortas on the court was key to pushing his Great Society social programs. Fortas, as Johnson’s architect of the Warren Commission, would also be well-suited on the nation’s highest bench to tamp down any unforeseen legal or constitutional repercussions from the assassination of President John F. Kennedy. Fortas also believed in a strong executive and a diminished role for the legislative body, which was music to LBJ’s ears.

In June 1968, Johnson, a lame duck president after he announced he would not run for a second term, responded to Chief Justice Earl Warren’s retirement announcement by deciding that Fortas was his choice to become Chief Justice. Senate Judiciary Committee Chairman James Eastland (D-MS) oversaw an acrimonious confirmation hearing. Fortas, a Yale Law School graduate, was challenged on his political and personal relationship with his fellow Texan, Johnson, while also serving on the nation’s highest court. Republicans and a few Democrats also felt it was wrong for Johnson to be selecting a chief justice with seven months left in Johnson’s term, an argument being heard today with regard to the Barrett nomination during the final run-up to Election Day.

Fortas’s activities off the bench are what eventually sunk his nomination as chief justice and prompted his resignation from the court.

While on the court, Fortas was found to have accepted $15,000 in speaking fees from American University’s Washington College of Law. The money amounted to 40 percent of an Associate Justice’s salary at the time. It was further discovered that the university money paid to Fortas did not come from academic coffers but from a private source involving 40 companies and his former Arnold, Fortas & Porter law firm clients and partners. Some of the companies had cases pending before the Supreme Court. Facing the combined opposition of Republicans and conservative Democrats in the Senate, Fortas withdrew his nomination as Chief Justice.

Clarence Thomas’s political business activities, including those involving his far-right wife, make Fortas look like a piker. Ginni Thomas’s extremist political action committee contrivances involving individuals like video provocateur and defamation artist James O’Keefe and other “Crowdsourcer” figures like Richard Viguerie and Cleta Mitchell make Clarence Thomas less suited for the court than even Fortas.

In 2011, Judge Thomas omitted from his judicial ethics form the additional income his wife was earning from the right-wing Heritage Foundation and Hillsdale College. Ms. Thomas earned a s salary of $680,000 from the Heritage Foundation over a five-year period. Justice Thomas claimed he “forgot” to list his wife’s added income to his required form. These were only a few of the myriad far-right groups and conflicts-of-interest that remain closely associated with Thomas’s far-right activist wife. Others have included the Council on National Policy; the short-lived Liberty Central, founded by Ms. Thomas and which paid her an annual salary of $120,000 for a total of $500,000 before it folded; and American D-Day, a pro-Trump 501(c)4 non-profit. Clarence Thomas, along with his late colleague Antonin Scalia, were accused of accepting favors from corporate interests, particularly those associated with Koch Industries.

His chance for elevation to chief justice shattered, Fortas saw President Richard Nixon nominate Warren Burger to the chief justice position. But Fortas’s ethical problems were not over. It was revealed that Fortas, while on the bench, had accepted $20,000 as an annual retainer from the Louis Wolfson Family Foundation. Louis Wolfson, a Wall Street banker, was a friend and former client of Fortas. Fortas’s 1966 contract with the Wolfson foundation stipulated that Fortas would receive $20,000 per annum for the rest of Fortas’s life. Those payments would continue by Wolfson’s wife in the event of her husband’s death. In return, Fortas was expected to look out for Wolfson’s interests in a federal securities violation probe and secure a pardon for Wolfson from Johnson if he were convicted. After Wolfson was indicted, Fortas returned the money and recused himself from the case but the damage to Fortas’s reputation was done.

Nixon Attorney General John Mitchell informed Chief Justice Warren of the allegations against Fortas and persuaded Warren to ask Fortas to resign to preserve the integrity of the court and avoid a lengthy impeachment process in the Senate. Herein lies a court “unpacking” solution for a Biden administration. If enough dirt is exposed on Kavanaugh, Thomas, and, perhaps, Barrett, Chief Justice John Roberts, who is as much a Supreme Court institutionalist as was Warren, might be persuaded by a Biden attorney general, as well as by President Biden and Vice President Kamala Harris, to ask for the resignations of justices who are provably tainted by ethics or Senate perjury scandals.

On May 14, 1969, seeing the writing on the wall, Fortas resigned from the Supreme Court. In 1970, Wolfson was indicted on securities fraud and was sentenced to prison. After Nixon’s first two nominees to succeed Fortas, Clement Haynsworth and G. Harrold Carswell, went down to defeat over ethics issues, Harry Blackmun cleared confirmation and took a seat on the court.

Abe was not the only crook in the Fortas family. In 1979, Fortas’s brother, William Fortas, pleaded guilty to stealing $250,000 from his law firm’s clients. He was convicted on state charges in Tennessee of fraudulent breach of trust, forgery, and obtaining money under false pretenses. William Fortas was sentenced from three-to-five years at a Shelby County penal farm. Alan Fortas, William Fortas’s son and Abe Fortas’s nephew, was indicted for attempting to bribe a penal farm officer to place William Fortas on a work-release program. Alan Fortas, an investment banker, was charged with attempting to bribe the penal farm officer with a ring and two watches valued at more than $10,000 and $5000 in cash. Ginni Thomas’s acceptance of cash, much of it dark money from dubious interests, and her husband’s innumerable conflicts-of-interest make the Fortas family’s finances look like the epitome of ethics.

Unpacking the Supreme Court by Biden, a former chairman of the Senate Judiciary Committee, may be the reason why Biden has been mum on increasing the size of the court. Biden knows just how to unpack it of Thomas, Kavanaugh, and, if need be, Barrett. To “Fortas” a member of “the Supremes”—force a resignation—may become a valued verb like “Bork,” the term used in reference to Biden’s Judiciary Committee rejecting Ronald Reagan Supreme Court nominee Robert Bork in 1987.

Previously published in the Wayne Madsen Report.

Copyright © 2020

Wayne Madsen is a Washington, DC-based investigative journalist and nationally-distributed columnist. He is the editor and publisher of the Wayne Madsen Report (subscription required).

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