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But the smoking gun that hurt Abe Fortas most was the public revelation by the Judiciary Committee that he had received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course.

Reminiscent of an earlier scandal when Abe Fortas had been forced to admit that he had accepted an expensive stereo system from a lobbyist while serving on President Johnson's White House staff, this leak caused significant damage to the nominee's reputation. Even the defense that the agreement in question was fully legal was not sufficient to stop President Johnson's supporters in the Senate from bailing ship.

Ironically, the Senate Judiciary Committee recommended that the confirmation go forward, but the damage had already been done. On October 1, 1968, almost a month before Election Day, the United Senate would successfully filibuster the first Supreme Court nomination in U.S. history. In a Senate made up of 66 Democrats, only 34 would agree to bring Abe Fortas' name up for a vote. President Johnson would then withdraw the nomination.

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Horace Cooper is a constitutional law professor at George Mason University

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.

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