The Abe Fortas Filibuster

The recent brouhaha over judicial filibusters has featured Republicans claiming that the practice was completely unheardof prior to GWB's first term. Meanwhile, Democrats were claiming the filibuster has always applied to judcial appointments, and besides the Republicans started it anyway by filibustering Abe Fortas. Perhaps not surprisingly, neither of these is true.

We remember the Fortas nomination from when we were in high school, back in 1968, but some details are cloudy. To fill in the blanks and for those not quite so long in the tooth there is Wikipedia, a useful, although left-leaning resource.

Fortas was an old buddy of President Lyndon B. Johnson, and had already been appointed by LBJ in 1965 to the SCOTUS as an associate justice. In June, 1968, when Chief Justice Earl Warren resigned, LBJ had already dropped his re-election bid in the face of a stiff primary challenge from Eugene McCarthy on an anti-war platform. Hubert Humphrey and Richard Nixon were facing off in an election in less than 6 months and LBJ was already a "lame duck." It was Sept 25, just days before the presidential election, by the time the nomination reached the floor of the senate. Ducks don't get much lamer than that.

After Warren's resignation LBJ nominated Fortas for Chief Justice, and that put the hay down where the horses could get it.

"However, Fortas' confirmation by the United States Senate was in trouble. He had accepted $15,000 for speaking engagements at the American University law school. While not illegal, it raised much criticism about the court's insulation from private interests. The nomination set off a four day filibuster led by Republicans and southern Democrats ('Dixiecrats'). A 'cloture' motion to end the filibuster failed. At that time, 66 votes were needed to stop debate. The vote was 45-43, with 10 Republicans and 35 Democrats voting for cloture and 24 Republicans and 19 Democrats voting against cloture. The 12 other remaining Democrats were not present. Fortas then withdrew his name from consideration.

Obviously, from Wikipedia's account the filibuster was a bipartisan affair on both sides. The anti-filibuster camp had 29% of the Republican senators. Of the Democrats who voted on cloture 35% supported the filibuster. Those voting against cloture were 56% Republican vs. 34% in the Senate overall. Furthermore, there is the mysterious "absence" of another 12 Democrats at the time of the vote. In most cases this was deliberate avoidance of the vote, with the senator neither wishing to vote against the president's choice nor for Justice Fortas. Without the support of about 30 Democrats, direct and tacit, there would have been no filibuster.

Even today $15,000 speaking engagements are nice work if you can get it. In 1968, $15,000 was a reasonable family income for a year, and the Fortas nomination was not popular. After his withdrawl Fortas retained his associate justice post for another year, but the story was not over:

"In 1969, a new scandal arose. Fortas had accepted a $20,000 fee from a foundation controlled by Louis Wolfson. Wolfson was a financier who was under investigation for violating Federal securities laws. He was later convicted and spent time in prison. Wolfson was also a friend and former client of Fortas. Under intense congressional scrutiny, including a threat of impeachment, Fortas resigned from the court."

Wikipedia also links to an article by John Dean, Counsel to President Nixon during the Watergate affair. Although he served in a Republican administration, he's obviously not a Republican now. The article is useful for the chronology of events, drawn from The New York Times issues of the day. Dean assures us the record according to The Times is realiable by noting that similar stories ran in The Washington Post and The LA Times. Obviously unbiased, then.

"The Editorial Page of the New York Times weighed in on September 27 on the filibuster issue. It observed that '[b]ehind the developing filibuster are strong undertones of politics, spitefulness and racism. . . . The real leaders of the filibuster are those old guard Southerners, Senator Eastland of Mississippi and Senator Thurmond of South Carolina. . . . These Southern bigots must be pleased indeed that the more respected Senators are serving as their cats'-paw in the case against Mr. Fortas.'"

In those days The Times actually considered anti-semitism to be racism. The Times also shows it's above partisanship by attacking Democratic conservatives as well as Republican conservatives.

But let's take it as fact that the Fortas case was a filibuster of a Supreme Court nominee. Dean's case appears well-documented. Dean is on shakier ground when he claims the filibuster is the entire reason for the defeat of Fortas' nomination.

In short, Fortas was defeated by the filibuster. He was not able to put together the votes to invoke cloture, and end the filibuster. And the matter ended there.

Because that was how it ended, historically, no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority against Fortas, as the revisionists now claim.

While we will never know with absolute certainty, since the vote was never held, Dean is overreaching here. Dean quotes Sen. Orrin Hatch saying that former Sen. Robert Griffin, who led the opposition to Fortas, claimed he had a majority opposed to confirmation. He was certainly in a better position to know that than Dean or any of the other sources Dean cited. LBJ had only days left in his presidency at that point. He no longer had the power to bend the Senate to his wishes or the will to fight a losing battle.

The information in the Wikipedia and Dean articles themselves show that a solid, bipartisan majority of senators just wanted the whole thing to go away. That's the way I remember the story playing at the time, too. Fortas barely got a majority for cloture and well under 50 votes. Twelve Democrats ducked out on the cloture vote. The filibuster was a way to make the nomination go away without an outright rejection, which would be even more humiliating.

So Republicans said the recent Democratic filibusters of judicial nominees are completely unprecidented in 214 years of Senate history. That is apparently not correct. Fortas was filibustered by a bipartisan opposition, and never received 50 votes for cloture, let alone the 66 needed.

The correct statement should be, "The recent Democratic filibusters of judicial nominees are almost without precedent. In the previous 214 years there has been only one other judicial filibuster, and that was 37 years ago. It was bipartisan on both sides. It lasted 4 days." One might even describe Fortas' ethics issues as "extraordinary circumstances."

Technorati: Abe Fortas, filibuster, judicial nominations

UPDATE 5/29: See second post on this topic here.

Judicial Deal Not Too Bad?

Perhaps we were a bit hasty in decrying the judicial filibuster "compromise" deal last night. James Taranto's comments in Best of the Web Today are encouraging:

"The left is crowing and the right is carping, for the most part, about last night's deal by 14 senators, seven from each party, to avoid the 'nuclear option'--a Senate vote to abolish filibusters of judicial nominees. We beg to differ. We favor an end to the obstruction of judicial nominees via filibuster, and it strikes us that this agreement is likely to accomplish that, at least for this Congress (after which the agreement expires). If so, the nuclear option will have shown its value as a deterrent.

The agreement binds the 14 senators who signed it to vote for cloture (i.e., against a filibuster) of the three remaining nominees the Democrats have most demonized: Priscilla Owen, Janice Rogers Brown and Bill Pryor. The compromisers expressly 'make no commitment to vote for or against cloture' of two additional nominees, William Myers and Henry Saad. The status of two other nominees, Brett Kavanaugh and William Haynes, is unclear. Early this afternoon the Senate voted 81-18 for cloture on Owen's nomination; an actual confirmation vote should come by tomorrow."

The DNC is casting it as a pure loss for Frist and conservatives. Other comments at NRO and Confirm Them suggest some reasons for optimism (e.g. The New Republic hates it). Ryne McClaren reviews some other comments as well. Bench Memos on National Review Online:

"L. Graham
[Kathryn Jean Lopez 05/24 04:54 PM]
Jon Adler just called -- heard L. Graham on a radio show say that renominating Estrada would not constitute an 'extraordinary circumstance.' Also, Graham (a.ka. MIT) still believes he still retains the right to invoke the nuclear option on one of the seven if Dems filibuster and its not an 'extraordinary circumstance.'

No Deference
[Edward Whelan 05/24 04:32 PM]
Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that 'extraordinary circumstances' exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that 'each signatory must use his or her own discretion and judgment in determining whether such circumstances exist' means that a Republican signatory is fully entitled to determine that 'extraordinary circumstances' do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination of 'extraordinary circumstances.'"

If we "do the math" on future judicial filibusters, we see:

• 55 Republicans for cloture
• 7 Democrats on record as supporting filibusters only for "extraordinary circumstances"

If 5 of the 7 take a reasonable view of the meaning of "extraordinary circumstances," there will be 60 votes for cloture. The 7 Republicans in the group have put themselves on the line to hold this together, and will have justification to vote for a rule change should "extraordinary circumstances" turn out to be NARAL's definition. Presumably the "gang of 14" have had fairly extensive discussions about what would and would not constitute "extraordinary circumstances," even if they aren't sharing it with the rest of the world.

As much as we would like to see Harry Reid, Chuck Schumer, and Barbara Boxer have their noses rubbed in it, diffusing the situation instead (if it holds) could be A Good Thing.

Judicial Deal Stinks

There's a deal, and it's odious. If you are downwind of Washington, DC, you can probably smell it. See the details at Confirm Them.

FOXNews.com - Politics - Deal Reached to Avert Judicial Showdown: "The agreement said future nominees to the appeals court and Supreme Court should 'only be filibustered under extraordinary circumstances,' with each Democrat senator holding the discretion to decide when those conditions had been met.

'In light of the spirit and continuing commitments made in this agreement,' Republicans said they would oppose any attempt to make changes in the application of filibuster rules."

The Whitehouse tried to put the best face on things it could, but about the best that can be said about this "compromise" is that it's not quite as bad for the Republicans as an outright loss. It is easy to see, however, in the faces of Barbara Boxer, Tom Harkin, and Harry Reid, that they are absolutely thrilled with this outcome. And why not? They managed to get two nominees thrown to the wolves, Saad and Myers, who now have apparently no chance for a vote. Seven Republicans promised to oppose changes to the filibuster rules for the rest of this Congress.

What did the Democrats give up? There will be votes on Owens, Brown, and Pryor will all get votes, but there was little hope of stopping that anyway. They have not even promised not to filibuster any future nominees, as long as a senator thinks it's "extraordinary circumstances." Translation: "unless we want to." It's hard to imagine how this "promise" could be enforced in any meaningful way. Meanwhile, the Republican promise to oppose changes in the filibuster rule will be hard to abrogate, no matter how many filibusters there are.

In the name of civility in the Senate, the "moderate" Senators have abandoned principle and countenanced continued politcization of the judicial confirmation process. This will not restore civility. It will only encourage more of the same from the Left.

Huffington's Toast - NEW HIGH-PROFILE DESECRATION

Huffington's Toast (H/T Nashville Truth):

NEW HIGH-PROFILE DESECRATION SENDS PEACE STRAIGHT DOWN CRAPPER
"Tom Cruise livid as Mel Gibson flushes copy of 'Dianetics!'"

Full "Bush Country" Article Now Available

The free, OpinionJournal.com site now has the full article about Pres. Bush's popularity in the Arab world that we excerpted previously:

"ARAB SPRING
Bush Country
The Middle East embraces democracy--and the American president.
BY FOUAD AJAMI"