ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

The simple uncontestable fact about the Fortas nomination in 1968 is that the cloture vote was 45-43, and it is unclear whether he could have gotten 51 votes in an up-or-down vote on the merits. As the New York Times reported back then, “Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote." In any event, just for the record, Joseph Califano's history of the Fortas cloture vote is below the fold.

The following is an excerpt from The Triumph and Tragedy of Lyndon Johnson by Joseph Califano, c. 1991, pages 316-317.

Rumors began circulating on the Hill that Griffin and Thurmond had something hot. We asked Fortas if he knew of any other vulnerability. He couldn't think of anything. I asked his best friend and partner Paul Porter the same question. He had no idea. Nevertheless, the rumors persisted.

Shortly before committee hearings resumed on September 13, Paul Porter called and said he had to talk to me about something regarding Fortas. When he came over early that evening, he showed me a letter he had written to several prominent businessmen. Some were clients of Fortas's old firm; all could be expected to have matters in various federal courts, some likely to get to the Supreme Court. The letter sought to raise money for Fortas to teach a summer seminar at American University Law School. Porter had raised $30,000, of which $15,000 had already been paid to Fortas for seminars he had been teaching the very summer in which we were fighting for his nomination. Porter tried to justify the arrangement, saying it wouldn't influence Fortas's behavior in the court, but his eyes teared as he talked to me. Senator Thurmond, Porter explained weakly, had discovered the payments and planned to have the university's law school dean, B.J. Tennery, testify about it before the committee on September 13.

After Porter left my office, I reported the matter to Larry Temple, and talked to the President as soon as we could get to him later that evening. When we informed him, Johnson nodded sadly. He was silent for a long minute. Then, he said, “We won't withdraw the nomination. I won't do that to Abe." Though we couldn't get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. “With a majority on the floor for Abe, he'll be able to stay on the Court with his head up. We have to do that for him." Fortas also wanted the majority vote.

After Tennery's testimony, as Johnson had predicted, Dirksen withdrew his support and announced he would not vote to shut off debate. On October 1, after a strenuous White House effort, a 45-43 majority of senators voted to end the filibuster, short of the 59 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination.