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THURSDAY, OCTOBER 3, 1968
NIGHT EDITOR: HENRY GRIX
Restraining the Court:
The prosecution rests
OUR GOVERNMENT'S elaborate system
of checks and balances has been
shortcircuited again by a minority crew
By refusing tto stop filibustering, 43
senators have forced President Johnson
to withdraw Abe Fortas' nomination as
chief justice of the Supreme Court before
the body of senators ever lIad a chance
to vote on the nomination.
Because of undemocratic Congressional
rules, neither Johnson nor the justices
have an effective weapon to fight this
blatant intimidation of the Court's power.,
Fortas once stood a good chance of
replacing Earl Warren as chief justice.
This was in June before the Senate Judi-
ciary Committee probed into Fortas' per-
sonal affairs. At that time he had a clear
majority of support from Democrats and
from a Republican faction led by Everett
But a, group of senators, championed
by the unlikely Robert Griffin of Mich-
igan (a lame-duck appointee of George
Romney in 1966), seized ,an opportunity
to undermine the "activist", direction of
the Court. /
"ACTIVIST" means merely that the
Court will review cases which turn on
current social issues and act as a type of
"collective conscience." Fortas' opponents
used the term to represent an open ad-
vocacy of pornography and immorality.
Southern constituencies have, of course,
been pressing for a more "restrained"
role of the Court. And Southern senators
dutifully produced polls which said more
than half of the'nation's voters were dis-
illusioned with the Warren Court's
To help inflate the humber of anti-
Fortas senators from the original 19 to
43, Griffin and his cohorts waged an
appealing smut campaign. Jumping from
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MARK LEVIN, Editor
STEPHEN WILDSTROM URBAN LEHNER
Managing Editor Editorial Director,
DAVID KNOKE, Executive Editor
WALLACE IMMEN.......,......News Editor
PAT O'DONOHUE .7 ............. .. News Editor
CAROLYN MIEGEL ..Associate Managing Editor
DANIEL OKRENT................ Feature Editor
WALTER SHAPIRO.......Associate Editorial Director
HOWARD KOHN ... ., Associate Editorial Director
AVIVA KEMPNER . ..... Personnel Director
NEAL BRUSS ..............Magazine Edito"
ALISON SYMROSKI .., Associate Magazine Editor
ANN MUNSTER ......Contributing Editor
DAVID DUBOFF ...Contributing Editor
ANDY SACKS.. ... . . . ..........Photo Editor
accusations of cronyism to showings of
"nudie-cutie" movies-all irrelevant to
Fortas' qualifications - they heaped up
scorn on Fortas' personal life and ulti-
mately torpedoed his chances.
Only vaguely disguised, however, was
the central anti-Court theme on which
the original 19 based their stand. "It is
not that we are opposed to the Court in
theory," said Howard Baker early in July.
"But we are opposed to some of the
things the Court has done in practice."
Griffin and Baker's strategy appears
obvious: smearing Fortas and thereby
ipso facto smearing / the Court. The
Court's power, of course, is couched in its
public credibility because it has no en-
THE ARITHMETIC being that if half
of the nation's voters weren't against
the Court before Fortas' nomination they
would be against it after.
Fortas did come out looking very bad
as each disclosure oozed more mud. He
finally had to admit- that he was involved
in several administration policy decisions,
including the use of federal troops in
Detroit last summer.
He also acknowledged that he advised
Johnson on the drafting of legislation.
Although Fortas repeatedly denied he
had violated judicial canons by predicting
how he or 'the Court would rule on execu-
tive decisions, his ability to make im-
partial rulings was severely questioned.
Johnson almost certainly will not
make another nomination because it
would necessarily be buried in the rush
to adjqurn. Thus the next President and
the next Senate will have a chance to
appoint two and possibly three justices.
Warren's resignation was contingent on
finding a successor, and he assumedly
will continue as chief justice to prevent
a conservative from replacing him. But
realistically Warren resigned at age '77
because he felt he was too old to con-
tinue to handle Court'affairs, and actuary
tables don't promise him another four
years of robust health.
Two other activist judges, Hugo Black
at 86 and William Douglas at 70, may
very likely leave the Court within the
next four years.
THE QUESTION of personalities is not
so much the issue because historically
justices have leaped dramatically in both
directions on the liberal-conservative
spectrum after being appointed.
Rather the power of the Qourt and the
system of checks and balances is at stake.
A minority of senators demeaning and
intimidating the Court At the expense of
democratic procedure is a frightening
Reform of Congressional rules (curbing
the strength of the filibuster) and a
change in the attitude of parochial sep-
ators should now be subjected to pressure,
Associate Editorial Director
Frank, Lary stands up
By JIM NEUBACHERt
WVITH THE WALLACE cam-
paign in Michigan - I grew
up -a Tiger fan, and Frank Lary
as my favorite Tiger. When he
pitched, I spent the day glued to
the radio. The "Yankee Killer"
was the team's biggest source of
pride at the time, and I bought
graphed by him. Everytime I'd
a baseball glove authographed by
him. Everytime I'd play baseball,
I'd be the pitcher, and adopt the
name of Frank for the day.
Then came Tuesday. Frarfk
Lary stood on the steps of the
capitol building 'in Lansing, wav-
ing to a cheering crowd.
It was just like the old days,
except that this time he was not
representing the Tigers. Rather
he stood waving to arcrowd of
Wallace supporters. He was Wal-
lace's prop, a sign to the crowd
that "great men" were for Wal-
LARY's APPEARANCE was a
typical segment of the Wallace
campaign pitch which consisted
of a definite appeal to a definite
segment of America.
,Just how the Wallace Tent
Show and Revival Company made
the appeal was a beautiful thing
Preceding Wallace into each
city, as part o fthe campaign ad-
vance staff, was the grooviest
Country Westerns combo 'ever to
appear on the steps of the state-
house. Straight from Montgom-
ery the five man combo crooned
such all time greats as "Oh, Lone-
some' Me", and "In Them Old
Cottonfields Back ! Home".
Two bleached-blonde female
vocalists, dressed in tight-fitting
lavender sweaters and ski-pants,
wit~h calf-length silver boots, sup-
plemented the band from time to
IN LANSING the band saved
the day the day for Wallace. With
the candidate running more than
an hour behind schedule, the
spectators, many of whom had ar-
rived as early as two o'clock for
the three o'clock speech, would
surely have become restless (and
many may have left) had it not
been for the entertainment. The
band varied its numbers and mix-
ed them with announcementstby
Wallace's advance manager that
the campaign caravan, (en route
from Kalamazoo was only "about
eight ' minutes away." '
As the caravan apparently
lurked on the roadside, the eight
minutes grew into 45 minutes and
the band kept the crowd tapping
its feed to the tune of "God
Bless America". And more im-
portantly, it reminded the crowd
to buy the badges and bumper-
stickers and silk ties and hand-
kerchiefs and plastic hats and
hardbound books (The George
Wallace Story) that were being
sold by the campaign workers.
THE WALLACE orga
more so than any campai
cent years, relies on the
these kind of items alo
personal contributions for
ing funds. Obviously N
campaign has not attra
numbers of large corpoi
nations, and being a new
ed party, does not have
bership, other than grass
fund it. Thus the Ten
"I want you to tell me,
Wallace's campaign mar
each city, "just how man:
fine Americans really b(
your minds, in your
(pause) maybe, (pause)
even in your (pause) so
we can elect George Walla
ident of these United Sta
The crowdsroars with
iasm, and the scattered
the hecklers, who are sav
venom for the candidate
are drowned out.
THEN AS THE cheers d
the staff man says somber
bly, "Now, we don't want
to go beggin' for money,
folks, if you truly believe
can elect George Wallac
dent, if you truly want h
President, then you're
have to sacrifice for h
asking you' to sacrifice
You'll all have to help us
ing about 10 dollars for t
When the roar of lau
the sum of 10 dollars sub
tells the crowd that he's d
ious, and that if they all
dollars, it wouldn't even
one-fourth of the 30 min
show which will be shown
area. The crowd becomes
Then he asks the crow
more if "in their hearts"
lieve. And as the roar go
the second time, the ban
up, and the pretty blond
to sing, and the little g
buckets run through th
gathering up the harvest
very green fields. It is
usual for Wallace to coll
000 like this.
appeared, and the crow
its roar, and the band
When things quieted do
hecklers, beat Wallace
punch, and he was at<
Lansing and Flint, he op
speeches like this:
"Good evening, thank
your patience. I'm . . . c
right, I see we have son
chists in the crowd."
nization, From that point pn, Wallace
gn in re- rarely got the chance to say more
sales of than three paragraphs without
ng with adding a remark about the heck-
r operat- lers. And his remarks were not
Wallace's appeals for decency, ala Hum-
cted the phrey, but vicious attacks on the
rate do- personal integrity of the hecklers.
ly form- He called them Nazis and anarch-
a mem- ists, and warned them that he was
roots, to going to "take care of them" af-
it Show ter Nov. 5 when he becomes pres-
Scroons THE BEST OF the Wallace
eager in show was equally as crude. In
iy of you Flint's Atwood Stadium, a large
elieve in three-sided concrete structure,
hearts, Wallace spoke to the crowd from
maybe the open side of the field, at least
uls, that 50 yards from the'nearest spec-
ace Pres- tator. He was behind a steel fence
tes? four feet high, and newsmen and
enthus- photographers were forced to op-
boos of erate from the other side of the
Ing their fence.
himself, Police ringed the stands, stand-
ing on the field about twenty
die down, feet apart to prevent Wallace
ly, hum- fans or foes from 'cdming on the
to have field. However, in front of the
but you section containing the majority of
thatywe hecklers, police stood shoulder to
ce presi- shoulder, riot helmets buckled up.
im to be Yet this was just a living part
going to of the Wallace philosophy, and
zim. I'm the crowd screamed its approval
for him. whenever policemen around the.
s by giv- stadium made a move toward the
he cam- hecklers.
ALL THE FACETS of the cam-
ghter at paign blended together to revolt
sides, he me. Yet they blended together
dead ser- perfectly as far as 30,000 people
gave 10 in the audiences were concerned.
pay for Wallace told the hecklers to go to.
lute T.V. The police took care of the rowd-
in their ies.
slightly Wallace attacked the Supreme
court, the federal government in
d o n c e general, open-housing, desegrega-
they be- tion of schools, and anarchists.
es up for Wallace told the demonstrators
d strikes where to get off. The band played.
les begin We all told the demonstrators to
irls with go to. We all gave money to
e crowd George. We told those Nazis to go
in some to.
not un- It was a helluva fine show.
a disad -"-4~
leading to his demise
From a future history of the 1968 campaign)
BY THE THIRD WEEK in October, most of the political analysts
agreed that the election of George C. Wallace had become a
serious possibility rather than a million-to-one-shot.
On Oct. 17 a Harris poll reported that Wallace was now favored
by 28 per cent of those interviewed-a 7 per cent rise in less than a
At the same time neither Richard Nixn nor Hubert Humphrey
had recorded any gain during the same period; Nixon still held the
lead, but both he and Humphrey had in fact lost ground. The figures
read: Nixon 34 (a drop of 5 per cent from Sept.), Humphrey 29 (a loss
of 2 from the poll report of Sept. 23.) Nine per cent were recorded as
"Clearly a continuance of this trend between now and Nov. 5 could
result in an actual Wallace victory in this increasingly unusual three-
way contest," Harris pointed out.
IT HAD BEEN recognized earlier that Wallace's surprising support
might force the election into the House of Representatives. And James
C. Kirby Jr. had somberly noted in an article in The Progressive earlier
that month that "a candidate may win the Presidency with an electoral
vote majority even though an opponent has more popular votes." Few,
however, construed his words as a prophecy of Wallace victory.
It was not until the Harris survey of Oct. 17 that the vision-or
specter-of such an extraordinary event was given credence.
WALLACE AND HIS supporters, of course, immediately heralded
the Harris findings (confirmed two days later in a Gallup report).
"Here is the clear, crushing answer to those who have been saying
we can't win-that a voice for me would be wasted," Wallace cried
at a turbulent rally.
"We're on our way to Washington."
For the ensuing week the pages of many of the country's most
responsible journals were filled with expressions of alarm
"Is it really conceivable that Americans are prepared to vote
into office a man who in the name of'law and order has bluntly af-
firmed his resolve to trample n the Bill of Rights, establish a police
state, and impose the rule of know-nothingism?" one editorial asked.
"There is now a clear danger that this will happen."
WALLACE DELIGHTEDL4Y cited the editorial in a TV broadcast as
"proof that we've really panicked those bleeding-heart, longhaired
doctors of philosophy and super-educated theoreticians who've been
inflicting their agnostic hedonism on this country." By that time he
was increasingly using such phrases as "agnostic hedonism" and
"sophistic syllogisms" as scare-words for those denied access to dic-
Then, quite suddenly, a strange and curious thing happened, per-
hips reflecting the recurrent miracle of the democratic process.
According to the memoirs of a member of the Wallace inner circle,
there occurred on Oct. 23 this conversation between Wallace' and a
"GEORGE, I'VE got bad news."
All right, tell it to me, it can't affect the election now-we've got
"But it can. We're getting reports from all over. We have to do
"Well, what is it?"
"We're losing ground nearly every place because too many people
who were voting for us have got the idea you're going to win."
"That's the idea we've been putting across. What's wrong?"
"WELL, IT SEEMS that an awful lot of these people were going
to vote for you because they were sure you couldn't win-they just
wantedito, well say they're mad."
"But what's wrong with my winning?"
"George-I've got to level with you-they're saying they never
really thought about making you President-and now they're! real
As a result of this encounter, Wallace abruptly changed his
strategy. In a major TV address he said: "I want to say in all honesty
to my dedicated followers that I know I can't win-but your votes
for me will be a message that the next President of the United States,
whether it's Nixon or Humphrey, can't ignore,"
IT WAS TOO LATE. ,By Oct. 29-a week before Election Day-
the Harris poll showed that Wallace support had dropped precipitously
to 16 per cent. The decline, Harris said, was plainly attributable to
the impact of previous surveys indicating that Wallace might really
become President of the United States. A typical voter, he reported,
said. "I was sure for him to shake things up-but, hell, I wasn't thipk-
ing of putting him in the White House. I mean, what's he ever done to
be able to handle that job?"
(Copyright 1968 N. Y. Post)
DAVID WEIR ......'................. Sports
DOUG HELLER .. ....Associate Sports
BOB LEES...... ..........Associate Sports
BILL TEVI............Associate Sports
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Phil Barnum: Center ring at 'U' Hospital
}+I-'--lam - .T,
1 ± = ov 1 4 PUFSW-
By JIM NEUBACHER
PHILIP T. BARNUM is alive
and well in University Hospital.
Although that sounds like a
piece of grafitti scrawled on a wall
somewhere, it is not meant to be.
Philip T. Barnum is alive because
of a 22-man team of doctors and
the death of another human
Two weeks ago today Barnum
woke up in University Hospital's
Clinical Research Unit to receive'
an injection of Immuran and
steriods These were given him in
anticipation of the heart trans-
plant operation he was to undergo
Nurses took blood samples from
Opdenhoff, for the same reason
they had removed samples of his,
tissues earlier in the week. They
wanted be sure they had a match
with aBrnum. They wanted every-
thing to be ready for a heart
bpdenhoff, who may or may
not have been conscious on the
morning of the operation, had
knuown for at least a week he was
a potentially donor for a trans-
plant. He had voluntarily given
permission for doctors to "take
anything they want" if he died on
the operating table, or as a result
useless and not capable of func-
Yet Herman C. Opdenhoff was
still "alive." Doctors at the hos-
pital kept his body functioning
mechanically. By use of supportive
devices, doctors were able to keep
Opdenhoff alive long enough to
completely prepare Barnum for
the transplant. Opdenhoff's heart
When Barnum was ready, Op
denhoff was wheeled into the
operating room, where the sup-
portive devices were removed. Op-
denhoff's body ceased to function
at all. His heart, and later his
The excitement and drama of
the transplant have now faded
into the day-by-day routine of the
hospital. And now, the question
of the morality of the operation
has become an issue. And now,
this reporter who followed the
transplant preparations, and cov-
ered the transplant-and tracked
the recovery thus far, is stripped
of his impersonal shield as ob-
server. I can speak only as ;ny
individual who has thoughts and
ideas about life and death--and
the rights of life.
A BASIC QUESTION arises
"But have we not regard for
that precious spark of undefinable
spirt called life?" some will cry.
"Holding a piece of it in our con-
trol, must we not attempt to sus-
tain it? And to destroy it when we
can save it, is that not murder?"
REGARD FOR LIFE? It is pre-
cisely because I have respect for
human life that I condone the
actions of those who would "end"
Opdenhoff's. For a man to exist
dependent on a machine is not
yrong in itself. Yet, when the
"man" we are sustaining is merely
a non-thinking, useless body, we
are makin- a fa~re out of life
..- - .
- ~ w~u