The Discriminating Role

The controversy which arose in the summer of 1968 over the nomination of Mr. Justice Abe Fortas to be Chief Justice of the United States has raised serious questions about the proper role of the Senate in advising and consenting to such nominations. That Sen. Hart’s remarks may be read in perspective, it should be mentioned that he supported strongly the nomination of Mr. Fortas. Hart believes that were it not for the unique circumstances of the summer of 1968- the erosion of the power of the President with the approach of a political campaign, the nearness of the end of the legislative session, and the opportunity the nomination afforded for political attacks on the Court and the President-the nomination would have been endorsed by a majority of Sen. Hart’s colleagues. If his view is correct, then the nomination procedure established by the Constitution was thwarted by a minority of the Senate who turned events to their advantage and were indifferent to the support given the nominee by the bar, by the academic community, by businessmen who recognized his perceptive handling of their problems and by the deprived members of our society who felt his concern for them.