To justify banning Senate filibusters in judicial nomination debates, Republicans are claiming support from history. Until now, say Republicans such as Sen. John Kyl and former Sen. Bob Dole, no one has used filibusters to block nominees to the federal courts. Because Democrats have broken an unwritten rule, their logic goes, Republicans are forced to change written ones.
But the charge that filibustering judicial appointments is unprecedented is false. Indeed, it's surprising that so few Washington hands seem to recall one of the most consequential filibusters in modern times, particularly because it constituted the first salvo in a war over judicial nominees that has lasted ever since.
Consider: From 1897 to 1968, the Senate rejected only one candidate for the Supreme Court (John J. Parker, in 1930). But since 1968, six candidates have been rejected or withdrawn, and four others have faced major hostility. During Bill Clinton's presidency, the willingness to challenge presidential prerogative spilled down to the level of appellate court nominees as well.
This contentious new era began on June 13, 1968, when Chief Justice Earl Warren decided to retire, and President Lyndon B. Johnson tapped Associate Justice Abe Fortas, his old friend and advisor, to replace him. Possessed of a distinguished career, Fortas was amply qualified for the post. But Johnson, having forsworn reelection, was a lame duck, and Republicans saw no reason to confirm Fortas before the November election.
It wasn't just Republicans who balked. Conservative Southern Democrats had long abhorred the Warren court's rulings on racial equality, sexual freedom and the rights of the accused. When Sen. Richard Russell (D-Ga.) decided in early July to oppose Fortas, he brought most of his fellow Dixiecrats with him.
Fortas' foes had various justifications for opposing him. Republican Robert Griffin of Michigan attacked the justice as the president's "crony." There was feigned outrage over news that he had earned $15,000 for leading summer seminars at American University -- a real but petty offense that critics inflated into a disqualifying crime. There was anti-Semitism: According to Laura Kalman's biography of Fortas, Sen. James Eastland privately feared he "could not go back to Mississippi" if he voted to confirm a Jewish chief justice.
