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Wednesday, April 19, 2023

What are the Best and Worst Times to Look at History?

"The answer to both questions, I should think, it: When it's relevant and current. It's the best time to do so because it's, um, relevant. And it's the worst time because moments of currency are when most people do the worst job of looking at history and, unless they are otherwise expert in the subject and thinking clearly, are most likely to rely on a canned and imperfect narrative."

The writer is Past Paul Horwitz. I started writing this post early last week, after Adam Cohen wrote an op-ed for the Times arguing that one distressing thing about the then-current news concerning Justice Thomas and his acceptance of generosity from a billionaire friend acquired after joining the Court is "the lack of bipartisan outrage at malfeasance that corrodes the standing of the nation’s highest court." Cohen's op-ed contrasts this with the fate of Abe Fortas, who was embroiled in controversy for initially accepting a payment from Leonard Wolfson, a financier ultimately convicted of securities violations. He argues that once the worst of the revelations about Fortas came out, "Congress respond[ed] firmly and in bipartisan fashion," leading to Fortas's retirement from the Court.

Since then, more people have discussed the Fortas story. They include Steve Vladeck, here, and a Washington Post reprint of its story about Fortas's resignation. (Below, I also reference a contemporary story from the Times. What strikes me the most about both stories is that in an era when space was at a premium, both stories were longer and gave more details than contemporary news stories, and also the utter lack of evidence that the endlessly self-trumpeted move away from "objectivity" has improved the quality of journalism in either paper. If anything the reverse is true, although I'm not claiming a causal relationship.) I draw on Cohen below as my foil. I have relatively little to say directly about the question whether, as Cohen argues, Thomas's behavior was far worse. I also have little if anything to say in his defense, and make a general point that applies to both Fortas and Thomas and is critical of both. My broad point is that the Fortas story as it has been presented in its canned-narrative form is incomplete and misses a good deal, some of which disrupts the point that Cohen, at least, wants to make, and thus shows how drawing on history in the moment generally disappoints or misleads. But the fuller version does offer some interesting potential lessons, some of which might suit Cohen and some of which might not, and that certainly wouldn't suit others, either in the camp that is critical of Thomas or in the camp that wishes to portray all of this as no big deal. Find a relaxing seat; uncanned history takes time. In keeping with my views on blogging and service to readers, I have gone unbearably long, left the takeaways until the end but buried plenty of observations in the middle, and omitted a jump page.   

Let's start with Cohen's op-ed and the state of affairs circa Tuesday of last week, after the first-round story about Thomas and his friend-cum-benefactor. Strikingly, Cohen's account omits the killing of Fortas's nomination to the office of Chief Justice of the United States. At that point in Fortas's tale, the Senate had before it at least one fact that can be analogized to Thomas. Cohen describes it misleadingly as "an earlier controversy over a course he was paid $15,000 to teach at American University while on the court." (Other accounts put the payment amount at $20,000.) This leaves out the nature of that invitation. The source of the payment for that course was Fortas's former partner Paul Porter, who lined up the gig at American--with initial plans for it to run indefinitely--and raised the $30,000 needed to pay for the course from rich friends and former clients of Fortas and the firm. At the time, the payment to Fortas represented a bump-up of 40 percent over his salary as a justice. Fortas was sincere about wanting to teach, and Porter said Fortas was unaware of the identities of the donors. At a minimum, however, it's clear that a major purpose of the course and the fundraising was to address Fortas's restlessness and unhappiness on the Court and his displeasure with the large drop in his income. 

The American University payment was only one part of the ammo used against Fortas in the chief justice fight. Another was what we could call culture-war nonsense, which is how the historical record treats it. Or, as we would call it if we were describing, say, the Gorsuch nomination, we could call it tough questioning about outré substantive decisions. A third was something else that may be relevant for analogy-drawing purposes: the well-known fact of Fortas's concurrent service as justice and unpaid advisor to LBJ. This Cohen gently describes as Fortas's "unfortunate habit of continuing to offer advice to President Lyndon Johnson, whom he had long advised, even after joining the court." There was no way to deny the relationship. But it could be finessed; or, as Laura Kalman puts it in her Fortas biography, when quizzed about it in committee, he "simply lied."

In the event, it was not enough. Fortas's nomination failed to get past a cloture vote, and with the writing on the wall Fortas asked Johnson to withdraw the nomination. But we certainly had not gotten to the "firm and bipartisan" part of Cohen's story. Some Democratic Senators defended Fortas throughout the process. The Judiciary Committee's 11-6 vote to send the nomination to the floor included three Republicans for and three Democrats against. The cloture vote was 45-43, well short of the two thirds needed. The count on that vote included ten Republicans voting for cloture, and 35 Democrats voting for it as well, along with 19 Democrats voting against along with 24 Republicans. 

At this point, we could still agree with Cohen's efforts to paint the opposition to Fortas as bipartisan. But, as with the ultimate controversy that drove him from the Court, that would be misleading, because it treats late-60s Democrats and late-60s Republicans as if each were cohesive, ideologically and politically united parties. Of course, they weren't. What killed the cloture vote, and thus Fortas's nomination to be chief, was an alliance between Republicans, less those primarily moderate or liberal Republicans who split off, and the conservative southern Democrats who, with their voters, would soon enough would leave the party.      

Cohen's op-ed, as I've suggested, omits nearly all of this and focuses instead on the controversy that led Fortas to step down from the Court. That controversy involved a payment from Louis Wolfson, a sometime client of Fortas, a man seen by some as shady and whom Fortas liked, according to Kalman. Cohen eases into his account of this issue, initially describing it in the op-ed as Fortas having accepted payment of $20,000 "to consult for a foundation working on civil rights and religious freedom." But he does note fairly quickly that the plan was for annual payments to Fortas for the rest of his life. 

Cohen does not say, however, that the payments were to go to Fortas's wife for the rest of her life if he predeceased her. Nor does he note that Wolfson's payment had as much and as little to do with sincere support for research into civil rights and religious freedom as the payment to teach at American University. In both cases, the history makes clear, a primary purpose for both payments was to supplement Fortas's income, which was a drop from what he had been making in private practice. Wolfson also wanted, at a minimum, to be close to the great and be able to brag about it, although he also attempted to trade on Fortas's name in defending himself against government investigation. The income-supplementing point would have been clearer had Cohen noted that the source of what he calls, using the passive tense, the payment "to teach at American University" was his former partner Paul Porter, who lined up the gig at American--the initial plan was for the course to run indefinitely--and raised funds from rich friends and former clients of Fortas. Cohen notes that Fortas quite the Wolfson-funded foundation he belonged to, returned the first payment, and didn't take any more. He might have pointed out that Fortas didn't disentangle himself from Wolfson until after he'd been pressed to do so by his law clerk, Daniel Levitt, and only after telling Levitt to mind his own business. (Meanwhile, Fortas was busily trying to line up other arrangements, with bodies like the Twentieth Century Fund and the Russell Sage Foundation. For reasons that always escape me, but that seem to involve a blind spot of political sympathy and an establishment-oriented sense of what is and is not au fait, we seem to have a blind spot when it comes to bien-pensant foundations, also funded by plutocrats, that bestow garlands, perks, and comforts on justices and buy access and proximity to them. Judges, academics, and law schools that speak truth to power would be lost without billionaires and multi-millionaires and their tax-reduction vehicles.) 

We now get to the nut of Cohen's argument. He notes that the Wolfson stories came out in part because of, and were pushed by, efforts by the new Nixon administration. He then notes that Democrats began joining the Republicans in calling for Fortas's resignation, and that these included moderate and liberal Democrats. This is true and perfectly commendable. But it's something of a romantic depiction. For one thing, he might have noted that the Judiciary Committee had become aware of a connection between Wolfson and Fortas in September 1968, and both the committee and Attorney General Ramsey Clark declined to pursue the issue. He might have acknowledged that even after the stories came out, some Democrats remained in Fortas's corner, privately or publicly, and others simply remained silent. He might have noted that Justice William O. Douglas, who had his own corrupt relationships and thus had some stake in the matter, urged Fortas to hold fast--and that, when the Nixon Administration pushed to impeach Douglas, House Democrats killed the effort.

Finally, Cohen might have shed some light on our propensity to overlook and forgive the faults of our friends and allies, at least until enough time has passed to safely allow a different historical judgment to form, by observing that it took years for many to think of Fortas primarily as an ethical failure rather than as a great Warren Court justice and liberal brought low by Nixonian tactics. As Lucas Powe notes in his history of the Warren Court and American politics, two years after Life Magazine had published its revelations about Fortas, it ran the results of a survey of constitutional law scholars rating Supreme Court justices prior to the ones appointed by Nixon. Powe writes: "In anticipation of the ethical blindness that would descend upon the profession generally, Fortas was rated--along with Brennan, Douglas, and Harlan--as near great."

Similarly, a look at the law review literature between Fortas's resignation and the reassessment occasioned by the passage of time, by Bruce Murphy's book about Frankfurter and Brandeis, and later by the publication of Kalman's biography shows very little scholarly interest in Fortas or his ethical lapses. He was mostly passed over in silence, as one does with embarrassments. One is never surprised when law review eulogies soft-soap their subjects, only when they don't. Nevertheless, one might note that on Fortas's death, Justice William Brennan wrote in the Yale Law Journal that Fortas's "work, career and character...exemplified the judicial role at its best," and that the other tribute it published, which stuck determinedly to Fortas's civil liberties work titled "Abe Fortas: A Man of Courage," stuck to Fortas's civil liberties work in the late 40s and 50s and was titled "Abe Fortas: A Man of Courage." That tribute may have followed the strategy of Anthony Lewis, the definitional center of establishment legal liberal opinion, whose Times column eulogizing Fortas began, "When Abe Fortas died on April 5, people inevitably thought about his service on the Supreme Court and his forced resignation. But there is reason to reflect on his earlier years as a lawyer." I'm not privy to faculty-lounge gossip from the 70s and 80s. But I suspect that in those corners, the assessment of Fortas during that period would not have seen Fortas as a villain or rogue, but as a disappointment and a fool, who (along with LBJ) stupidly gave the Nixon administration the tools to launch the Burger Court "counter-revolution."

This history is, to my mind, much more interesting than the canned narrative Cohen provides. (Of course he had much less space to work with, a point with which I have some sympathy but not much; not writing an op-ed is always an option. But it's also beside the point. The convenience of a canned narrative lies not in the fact that it's short, but in the fact that it's canned: it's conventional, neat, digestible, usable, and comforting.) It's also more instructive. I take no position on whether, at the time Cohen published the op-ed, he was right in saying that Thomas's conduct--as of the state of knowledge about it at that time--was "far more egregious in scale than Fortas's," although I do think both that Cohen can make a reasonable argument on that point and that his assertions on the point, at the time and with the information he had then, are also both contestable and overconfident. But I am happy to take the assertion that Thomas's conduct (again, as of our state of knowledge after the first ProPublica story) is as bad as or worse than Fortas's. I am happy, too, to say Cohen makes a reasonable point in saying there was more bipartisan condemnation of Fortas and that this sort of bipartisanship is devoutly to be wished for. 

But it seems to me the fuller history suggests some different points than Cohen makes. The first is a simple point of clarification. The version of the story in which Fortas's resignation as showing admirable bipartisanship and today's treatment of Thomas as showing wicked partisan complicity is overstated and (perhaps inevitably) presentist. As is almost always the case, a close-up view of the past muddies the waters and makes confident assertions of this sort difficult. It shows that bipartisanship was closer to the exception than the rule, and that much of the bipartisanship, notwithstanding Cohen's examples, had to do with the makeups of both parties being very different. (I don't think this is the entire explanation. Cohen's examples of moderate-to-liberal senators criticizing Fortas--but, note, later in the process, not necessarily during the nomination to the chief justiceship--are good ones, albeit not necessarily representative. I think it is quite possible that some norms around both the senatorial role and the expectations that office holders have for themselves and others have changed, in some ways positively and in many ways negatively. Query whether many of the desires that are strongly expressed about what one's party should do, how its representatives should behave, and who should be elected would ease or exacerbate these very problems.)

A look at how that past has been received over time also complicates matters. Cohen is free to say that the meaning of the Fortas affair is clear. But he might more properly say, "The 2023 version of the meaning of the Fortas affair is clear." A 1973 version, 0r a 1983 version, might be different. (Indeed, as I suggest below, it's not even clear that the 2023 version for Cohen is the same as Cohen's version of the lesson of the Fortas affair in 2020.) That earlier version might be the "clear" lesson that Nixon was a bastard, full stop; or that, absent stronger resistance, unscrupulous politicians will leverage scandal to force judges off the court so they can reshape it to their own ends, even if others have engaged in that behavior or the so-called bad actor returned the money or the rules or their application are unclear (which is more or less the 2020 Cohen "lesson"; or that judges should be above reproach not because we care what they did, for the most part, but so that they are not vulnerable to the underhanded tactics of their enemies. Certainly the historical judgment of Gerald Ford is not that he behaved admirably by seeking to impeach William Douglas, even if Douglas acted wrongly. And although Cohen praises some Democratic senators for criticizing Fortas, I can't think of many examples of praise for Mitchell or Nixon or the Life Magazine reporter for revealing Fortas's conduct. At the least, the fact that the received wisdom on the Fortas affair was different at different times should make us less confident of the "lessons" we draw from it today and more aware of the distortions that enter in when we render history "usable."      

A point related to this is that both structure and actual preference today favor a political alignment that encourages the kind of situation that Cohen deplores. Plenty of people and interest groups deplore ideological diversity in their own party and view so-called party moderates as false friends and bad influences who should be drummed out of the party. (They tend to approve of moderates on the other side, at least once they've been elected, while favoring and sometimes working toward the election of the more extreme members of the other party at the primary stage.) Plenty of people in both parties think presidents who nominate moderates for judgeships are failing in their duty and ceding victory to their opponents. It's possible that some of the moderate or liberal Democrats who publicly criticized Fortas would have done so no matter what, and that this represents a genuine falling-off in our politics--albeit a falling-off that many perversely desire. But it's also possible that without the Southern Democrats, the ranks would have closed around Fortas much more fully and successfully. The road to a saner response to misconduct by judges and other officials runs directly through ideological and party impurity.  Insofar as they also serve as pressures for party purity and against heterodoxy, the interest groups that play a huge role in the political ecosystem may simultaneously help to uncover and publicize ethical lapses by their adversaries and help maintain a system in which those efforts become one-sided and partisan and fail. (There are exceptions. Some groups focus on ethics from a bipartisan perspective. But of course the picture is muddier than that. CREW calls itself nonpartisan but that is a transparent  stretch. Public Citizen is supposed to be but doesn't always act like it. It's hard for a group to keep funding, support, and staff for the mere mission of holding everyone to high ethical standards.)   

Another point is that, then and now, most people who support a justice's politics will remain silent even if they privately question that justice's conduct. Today they would just need to call out numbers to justify that silence, where the numbers represent ritualized responses in the game of culture-war politics: "23," for instance, might mean, "[X] is happening in the world right now, and this is what you decide to complain about? I'm too busy focusing on [X] to talk about this," and "42" might be, "This is coming from a reporter with a clear bias, and although I've been arguing for openly political journalism, I decline to trust that journalism when it comes from the other side, so I'll wait for more before commenting." But silence has always been an option and remains so. Where they are silent, moreover, that silence might not suggest approval; on the other hand, it may well be that they quietly consider the bad actor a fool who handed over ammunition to his or her unscrupulous enemies rather than a villain. 

A further point is that the Fortas affair and its "lessons" should make us more hesitant in assigning a role to the "villains" and "heroes" in such a story, or at least moderate our interest in the relevance of that question. ProPublica is a gift to journalism, especially given how little actual journalism there is. (Even leaving aside the death of local papers, on any given day I may find a good investigative piece in the Times but will almost certainly find a piece about Succession--at least five, actually, in the last seven days--or something equally trivial and cheap to produce. (It is either ironic or indicative or both that Nikole Hannah-Jones, who once reported on a story in Tuscaloosa involving my wife for ProPublica, effectively ceased doing journalism when she joined...the New York Times.) But of course its tendencies lean liberal or left. Does it matter? If ProPublica revealed valuable and disappointing or scandalous information about Justice Thomas through actual reporting, are its politics relevant? If someone like Sheldon Whitehouse, who hasn't a nonpartisan bone in his body, uses this occasion to push for information or reform, does it matter that his main interest may be scoring points or giving a Democratic president a Supreme Court seat to fill? By extension, if--as Cohen takes to be the case--Mitchell and Nixon did indeed reveal unethical and disqualifying conduct by Fortas (a point that was of course contested at the time and later), do we care that they were acting for their own ends? Do we care that Life Magazine leaned right? We should care about the accuracy of the report, and we may care about the tactics involved in obtaining or disseminating the information, although in the latter case we care for process reasons and not because those criticisms alter the underlying facts. But should we care beyond that? It is clear that some of Thomas's defenders do, even though those questions don't alter the fact of whether Thomas acted improperly or foolishly or not.

It would seem that as of last week, Cohen does not think we should care beyond that. He praises Democratic senators who urged Fortas to resign, saying they "were more concerned with the court and the country than with their ideology or their party," and although he notes that Nixon was pushing the effort to get rid of Fortas, "including with some improper leaks," he soft-soaps the history on that point and doesn't suggest that Fortas should have stayed on that account. But in his 2020 book Supreme Inequality, Cohen gives an almost entirely different picture. There, Fortas suffered a "forced resignation" (as opposed to Earl Warren's strategic resignation, timed to allow Johnson to fill his seat, which Cohen praises as Warren's "plan for saving the Court") at the hands of the underhanded Nixon administration, whose depredations he describes in loving detail; there is no praise offered for Democratic senators who abandoned Fortas, no paeans to bipartisanship, lots of leaning on the "no technical rules broken" and "other people did it" lines of argument, and plenty of criticism of Warren for not sticking by Fortas. The Cohen of 2023 confidently describes the Fortas resignation as "a blueprint for how lawmakers could respond today." The Cohen of 2020 calls the whole episode "disreputable"--for Fortas's adversaries, to be clear, not Fortas, who gets off with a verdict of "problematic." The judgments are so different that it would be natural to assume they were written by two different people.

It seems to me that if one thinks Fortas did nothing wrong, then one can argue he could or should have stayed on the Court regardless of who was pushing for his resignation and how bipartisan the effort was. If he did do wrong, then he could or should have stepped down regardless of who was scheming for his resignation and regardless of whether his critics were bipartisan or not. Similarly, if Thomas did not act improperly (and even aside from questions of fact, the Two Cohens, like the rest of us, may have an inconsistent set of metrics for whether technical compliance, according to a technical, lawyerly interpretation, is enough, or whether impropriety sufficient to suggest resignation is a matter of the spirit or the letter), he can or should remain, without any particular regard for whether his defenders are self-interested partisans and with equal disregard for the identity of his critics. If he acted improperly, he can or should resign even if the controversy is also or even primarily an effort to find a weak link and pull on it in an effort to change the composition of the Court, and regardless of whether he has or lacks support from Republican lawmakers. The judgment of history--which, as we've seen, won't be one judgment but a shifting series of judgments, even for the same person--will be what it is. The judgment of the individual judge about what integrity and propriety demand is its own question, which can't be shaped by the composition of either one's critics or one's defenders.

A final lesson of the Fortas affair and its comparison to the Thomas affair is, I think, true and valuable and somewhat neglected in the current discussion, and has become ever more true as more stories about Thomas's relationship with Crow have come out. Much of the discussion has centered on Corruption with a capital "C," thus making it important whether Crow was a real "friend" or someone deliberately cultivating a judge who may as a result rule in favor of the causes that person supports. But I don't think Wolfson's unsavory nature was as important, as a takeaway from the Fortas affair, as the fact that he liked to be well-connected, to know people, largely for its own sake. People love to have important friends. In that group, which includes most of humanity and almost all of humanity in the professional-managerial-creative class, the people who most love being near the powerful or famous move to LA or DC and make it a lifelong pursuit. The great and wealthy and famous, who are magnets for these people, have two options: they can accept it as their due, or resist it. The fact that some of these people might become genuine friends changes nothing. It certainly does not change what matters most: the small-c corruption of it all. (I might add that although they became friends long before one became a Supreme Court reporter for NPR and the other a Supreme Court justice, even Nina Totenberg admits that remaining an intimate of Ruth Bader Ginsburg led to small-c corruption for both of them.) I have no reason to disbelieve Thomas when he says that Crow is a genuine friend, but also not much reason to care. Crow's generosity to Thomas might be both sincere and financially trivial to him, in the same way that the Aspen Institute or Salzburg Global Seminar needn't count their pennies when cultivating Justices as summer speakers and teachers. But it's just...gross, and unnecessary, and, whatever the justices themselves might think of this or that friendship or invitation and their reaction to it, corrupting. 

One wants justices to live something of the life of human beings, with the social contact that is necessary for a human being to remain sane. But for the period of their tenure, I prescribe a fairly insulated, artificially cloistered life, with the deliberate shedding of a number of old and genuine friends and acquaintances and extreme caution in making new ones. No dinners with Nina, no vacations with Harlan, no fancy holiday parties, no star appearances at ACS or FedSoc or the AALS, no bloody memoirs and no book tours, and no "A-lister" rounds of the "embassy party scene." I give full credit to Thomas for a different way in which he has remained social and fought isolation: by touring the country in his motor home. I'm all in favor of Little League and Boy Scouts and trips to the Safeway. But between a sane and social life in which new friendships, naturally enough for rich and powerful people, are going to involve other rich and powerful people, and a depressingly lonely and isolated life, I counsel the latter. That it might make them miserable is of no consequence to me. That's especially true because its cure is always at hand and involves what they all ought to be doing anyway: serve for ten or fifteen years and then move on.  



Posted by Paul Horwitz on April 19, 2023 at 01:12 PM in Paul Horwitz | Permalink


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