Ghost of Abe Fortas Hangs Over Discussion of Judicial Filibusters

Posted December 10, 2004 at 12:45pm

Time for a history lesson, boys and girls. The lesson is about the filibuster, and in particular about the filibuster against the nomination of Abe Fortas to be chief justice of the Supreme Court in 1968. The lesson is precipitated by Sen. Orrin Hatch’s (R-Utah) letter to Roll Call last Monday. [IMGCAP(1)]

First, let us look at the basics of what happened in 1968. On June 13 that year, Chief Justice Earl Warren informed President Lyndon Johnson of his intention to retire, subject to the confirmation of his successor. Two weeks later, LBJ nominated Associate Justice Abe Fortas for the post, also nominating Judge Homer Thornberry of Texas to fill Fortas’ seat on the court. Before his confirmation to the court earlier in Johnson’s presidency, Fortas had been one of Johnson’s closest friends and advisers.

As soon as the nomination was made, sharp opposition arose, driven especially by Sen. Robert Griffin (R-Mich). He challenged the legality of a nomination when there was no vacancy, and accused Johnson of “cronyism.” Other Republicans joined in the effort, which also was driven by the fact that the vacancy occurred late in the presidential term. Many Republicans saw a benefit in waiting until after the election to confirm a new justice, on the hope that GOP nominee Richard Nixon would win in November.

Whatever the motives, as hearings on the Fortas nomination proceeded during the summer, more questions arose about his ethics and his continued involvement, while on the court, in White House political matters. Other opposition, including from several Southern Democrats, built because of Fortas’s left-of-center ideology. But at the time, it was clear that Fortas had majority support in the Democratic Senate, and it was equally clear that Griffin, to prevail, would filibuster.

During the hearings, Griffin was challenged by Democrat George Smathers of Florida on his intention to filibuster the nomination, saying it would prevent the Senate from fulfilling its constitutional advise-and-consent duties. Griffin angrily responded that presidents did not have the sole authority in this area. “He’s only got half the power, he said. “We’ve got the other half and it’s time we asserted ourselves.”

When the nomination came up on the Senate floor in late September, a filibuster ensued. After five days of extended debate, there was a vote on a cloture motion. It failed, 45-43 with 59 votes (two-thirds of those present and voting) needed to pass it. The next day, Fortas withdrew. Johnson termed the behavior of the Senate “tragic.”

At its heart, Hatch’s recent letter suggested a sharp difference between how Fortas was treated (primarily by Republicans) and how appeals court nominees have been treated by Democrats in the past two years — all part of an effort to boost the idea of declaring filibusters against judicial nominees unconstitutional on their face.

The argument that Hatch makes, first articulated by former White House Counsel C. Boyden Gray, is essentially that there was no real filibuster against Fortas, because he didn’t have the votes to get confirmed in the end. I must confess, I find the distinction between “majority-supported filibusters” and “non-majority-supported filibusters” to be, shall we say, a strain.

The logic that Gray has used — trying to suggest that in the public statements of Senators on Fortas, a minority offered support — is flawed. Why filibuster if you have the votes to block a nomination? Besides, I am waiting for someone to show me where in Rule XXII it makes any distinction between filibusters that have majority support or lack it.

The delay caused by the filibuster in 1968 did allow time for opposition to Fortas to build, to a point where Johnson withdrew the nomination. But if Republicans were confident that Fortas would fail on a vote, they would have allowed the vote. And of course, to argue that a filibuster is not a filibuster — or to argue that one is legitimate when others are not because there was not a majority for the nominee in the first place — is like arguing, “Yes, I shot him, but I can’t be charged with murder because he would have died of cancer anyhow.”

In any event, the best way to interpret the actions of Senators in 1968 is to look at what they said then — in particular, what was said by Griffin, who was not just some crazy maverick but a card-carrying member of the Republican Senate establishment (and subsequently Republican Whip in the Senate). So here are a few quotes from Griffin on the Senate floor from that September debate:

“It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the Court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote. …

“As more senior members of this body know so well, the Senate works its will in various ways. In the situation confronting us now, there are good and sufficient reasons for refusing to take up the nomination. …

“If ever there is a time when all Senators should be extremely reluctant to shut off debate, it is when the Senate debates a Supreme Court nomination. If Congress makes a mistake in the enactment of legislation, it can always return to the subject matter and correct the error at a later date. But when a lifetime appointment to the Supreme Court is confirmed by the Senate, the nominee is not answerable thereafter to the Senate or to the people, and an error cannot be easily remedied. …

“Whatever one’s view may be concerning the practical effect of Senate rules with respect to the enactment of legislation, there are strong reasons for commending them in the case of a nomination to the Supreme Court.”

Cloture, the ability to shut off debate in the Senate, first was put into the rules in 1917. Until 1949, it could not be invoked on nominations (meaning they could be talked to death without challenge.) As Congressional Research Service analyst Richard Beth has pointed out in a superb paper, it was attempted only twice before 1980. Between 1980 and 2000, cloture motions were filed and votes were held on 14 appeals court nominations, including against several Clinton nominees who were being held up by Republicans.

Many Republicans now arguing that filibusters against judicial nominations are unconstitutional on their face voted at least once against cloture (and thus for talking a nomination to death.) And, as I mentioned in an earlier column, many appeals court nominations were killed by never bringing them to hearings and votes at all.

Some of my most memorable and pleasant experiences in Congress have been testifying before Hatch in the Senate Judiciary Committee, often on constitutional amendments that he supported and I opposed, but also often in areas where we were in accord. He was invariably polite, engaged and thoroughly knowledgeable with the material, and the questions were smart, penetrating and always to the point. He is a great Senator and a good guy (and by the way, would make a great chief justice).

But on this one, he is wrong on the facts, wrong on the history, and wrong on the strategy. I hope he and Majority Leader Bill Frist (R-Tenn.) think longer and harder before they take the plunge down this slippery slope.

Norman Ornstein is a resident scholar at the American Enterprise Institute.