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The Republicans' Filibuster Lie

They seem to have forgotten the Fortas case.

May 03, 2005|David Greenberg | David Greenberg, a history professor at Rutgers University, researched the politics of court appointments as a visiting scholar at the American Academy of Arts and Sciences.

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 But since 1968, six candidates have been rejected or withdrawn, and four others have faced major hostility.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.

At bottom, however, Fortas' critics opposed him on ideological grounds. Sen. Strom Thurmond blasted Fortas' votes in a series of pornography cases, which the South Carolina Republican said had opened the floodgates to a torrent of hard-core smut. Thurmond arranged for reporters and Senate colleagues to screen explicit films that Fortas purportedly had legalized.

Thurmond also denounced Fortas for defending the rights of rapists, criticizing in particular the Supreme Court's decision in Mallory vs. United States, which freed an admitted rapist because police had detained him excessively before his arraignment -- but which had come down in 1957, before Fortas joined the court. Fortas, in short, became the lightning rod for years of pent-up rage toward the Warren court.

The Senate Judiciary Committee ultimately endorsed Fortas. But a band of Republicans and Southern Democrats took their fight to the Senate floor. On Sept. 25, 1968, they began a filibuster, beating back a motion to end debate, with Republican leader Everett Dirksen, once a Fortas supporter, switching sides to oppose cloture. Bested in the Senate, Johnson withdrew the nomination on Oct. 2.

The first defeat for a high court nominee in 38 years, the Fortas debacle began the Senate's now-commonplace defiance of a president's judicial appointments. And unlike in the 19th century, when senators often admitted to political motives when they opposed a nominee -- his stand on immigration or slavery, for example -- since 1968 senators typically alight on a kind of cover story, such as Fortas' outside income, William Rehnquist's alleged voter intimidation in the 1960s or Clarence Thomas' reported sexual harassment.

History belies such fictions. Fortas met defeat because of his liberal jurisprudence. And Democrats today oppose a handful of President Bush's nominees because they're extremely conservative. For this same plainly political reason, Republicans, who so masterfully deployed the filibuster in 1968, now want to abolish it.

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