Don't Let Me Stop You

What the heck, you'll do what you want anyway.

Abe Fortas Filibuster II

Posted by Dan Draney on May 29, 2005

We haven’t had much time for posting lately, due to a business trip. The previous post on the Abe Fortas Filibuster deserves a followup. Here’s a part of what The Encylopedia Britannica (Std. Ed. 1999) has to say about Fortas:

President Lyndon Johnson nominated Fortas, an old and trusted friend, to the Supreme Court in 1965. Three years later he nominated him to replace retiring Chief Justice Earl Warren. Fortas generally had sided with the liberal court majority, and his nomination was quickly assailed by various critics. When the nomination came to the Senate floor, a filibuster ensued. Shortly afterward, Fortas requested that his name be withdrawn, and the president complied. In 1969, Fortas’ earlier financial involvement with a financier who was subsequently imprisoned for securities violations appeared likely to precipitate impeachment proceedings in Congress; in May Fortas resigned, returning to private practice.

It doesn’t say much about the issues or anything about the fight in the senate over the confirmation, but it does use the “f-word.” It’s interesting to note that had Fortas been confirmed in November, 1968, he would most likely hold the record for shortest tenure as Chief Justice after resigning in May 1969 to avoid impeachment.

There is this report on the confirmation fight from the Senate’s official web site:

“A seasoned Senate vote-counter, Johnson concluded that despite filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected.

The president soon lost Russell’s support, however, because of administration delays in nominating the senator’s candidate to a Georgia federal judgeship. Johnson urged Senate leaders to waste no time in convening Fortas’ confirmation hearings. Responding to staff assurances of Dirksen’s continued support, Johnson told an aide, ‘Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we’re going to get beat. Dirksen will leave us.’

Johnson was a seasoned political fighter who knew exactly how the Senate worked. In those days it did work, more or less. The next paragraph from the Senate site contains some startling information (emphasis added):

Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.”

Wow. A Supreme Court Justice sitting in on Presidential staff meetings and briefing the President on secret deliberations of the Court? What an unbelievable abuse of the system. Talk about “extraordinary circumstances.”

Since both of these neutral sources describe the Senate actions as a filibuster, we will concede that there was one. It is interesting to note that Sen. Griffin and others tried to avoid the use of the term, and claimed it was “extended debate.” It was widely believed on both sides that filibusters of judicial nominations were wrong, if not unconstitutional. The John Dean article cited in the previous post points out that Richard Nixon spoke out against the filibuster of Fortas (and filibusters in general).

So does this one filibuster in 214 years, 37 years ago justify routine filibusters today? Hardly. The counter case is made well by Rich Lowry on National Review Online:

“Democrats point to a filibuster of Lyndon Baines Johnson’s 1968 attempt to elevate Abe Fortas from an associate justice to chief justice of the Supreme Court as a precedent. But it was different in kind from today’s filibusters. It was bipartisan. Twenty-four Republicans and 19 Democrats voted against ending the filibuster. Fortas almost certainly didn’t have the support to pass on an up-or-down vote in the Senate. Hurt by ethics charges, he soon withdrew his nomination, and ended up resigning from the court. The case was truly exceptional.

One Democrat who worried it wouldn’t be was Sen. Mike Mansfield. He feared that a minority of senators would ‘frustrate the Senate’s constitutional obligation on the question of nominations’: ‘In the past the Senate has discussed, debated, at times agonized, but always it has voted on the merits. No senator or group of senators has ever usurped that constitutional prerogative. This unbroken tradition in my opinion merely reflects on the part of the Senate the distinction heretofore recognized between its constitutional responsibility to confirm or reject a nominee and its role in the enactment of a new and far-reaching legislative proposals.’

Mansfield’s fears were unfounded — at least for 35 years. Now they have been realized at the hands of an obstructionist Senate Democratic minority. Senate Majority Leader Bill Frist should take away their ability to mount unprecedented judicial filibusters through the so-called nuclear option, then sleep the sleep of an utterly justified defender of Senate tradition.”

The Dean article asserts that the Senate article cited above “suggests that LBJ had the votes to get Fortas confirmed, but not to get past the filibuster.” Dean must be divining this from penumbras and emanations. The statement that Johnson believe he “just barely had the support to confirm” was referring to LBJ’s thinking when he made the nomination, not when he withdrew it. The Senate site also quotes LBJ as saying privately that if he had another term the outcome would have been different, but that doesn’t mean he though he could have gotten 50 votes to confirm absent the filibuster.

Of the appellate judge nominees who have been strung along for years, it is likely that all would be confirmed if brought to a vote, although there have been some suggestions that one might be defeated. There is nothing radical or “out of the mainstream” about them, despite the ridiculous smears that have been attempted. In short there has been no case of “extraordinary circumstances” that would justify the tactics of the minority. The Fortas case, in its uniqueness, proves that point.

UPDATE 5/29: Here’s a nice fisking of the John Dean article by ConfirmThem. (H/T Mike)

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