ConfirmThem

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

The Washington Post takes a historical look at the Fortas episode in 1968. The Post acknowledges that there was no clear majority for Fortas, quoting a New York Times report:

"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."

The Post also acknowledges that pre-Fortas history provides no precedent for what's happening now, according to The Congressional Quarterly Almanac: "The effort to block the [Fortas] confirmation by means of a filibuster was without precedent in the history of the Senate."

Comments about the Post article can be found here.

There are tons of other important differences between what happened to Fortas in 1968 and what's happening now. In 1968, Republicans AND Democrats used a so-called filibuster with respect to Associate Justice Abe Fortas, who was Lyndon Johnson's choice for chief justice. Various senators said that the purpose of that so-called Fortas filibuster was to prevent debate from being prematurely cut off, rather than to perpetually stall in order to kill the nomination. The debate on the floor of the Senate lasted a grand total of four days, until Fortas withdrew of his own volition. He himself said in his withdrawal letter that he could ultimately have obtained an up-or-down vote on the merits. The Republican leader (Everett Dirksen) said that his mind was "still open," and that cutting off debate would therefore be premature while there were further issues that needed "exploration." The Fortas debate was real, rather than fake as it is now; Senators were actually opening their mouths and conversing with each other. Fortas only obtained 45 votes for cloture (to 43 against), which was far short of a simple majority of the full Senate. The only reason that a cloture vote occurred at all was because LBJ wanted Fortas to get a slim majority vote to save face; Joe Califano has explained that LBJ already planned to withdraw the nomination long before the cloture vote, when LBJ learned that Fortas had indirectly received $15,000 from businessmen who could one day come before the Court. No Senator threatened to filibuster for "all the hours in the universe" as the Democrats now threaten. The Fortas situation is also different from the present situation in that his was a Supreme Court nomination, and moreover there was no vacancy yet because Earl Warren was still seated (also, the nomination of Associate Justice Fortas would not have given Fortas any more voting power than he already had).