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

Columnist John Dean wrote a May 6 essay at Findlaw's Writ asserting that the Democrats' present filibustering against judicial nominations has ample precedent in the Fortas nomination back in 1968. Mr. Dean is incorrect, and his faulty arguments are helping to obstruct the confirmation of qualified nominees such as Justices Janice Rogers Brown and Priscilla Owen. Note that confirmthem already discussed a previous April 8 column by Mr. Dean on this same subject. For those who may not recall, Mr. Dean was Nixon's White House counsel during Watergate.

His recent Findlaw piece mischaracterizes what actually happened in 1968 with regard to Supreme Court Associate Justice Abe Fortas, and seeks to disparage statements made recently by Senator Orrin Hatch of Utah regarding that Fortas nomination to become Chief Justice. Mr. Dean's May 6 essay quotes various statements by Senator Hatch, and concludes that Sen. Hatch is engaged in "revisionist history," that he is "dead wrong," that his statements are "absurd," that he "utterly ignores the facts," that he is "misleading," that his history is "bogus," that he practices "baseless revisionism," and that he is engaged in "distortion of the truth." Let us look at the statements of Sen. Hatch that have prompted all of this invective from Mr. Dean. The five statements by Senator Hatch quoted by Mr. Dean are as follows:

#1) "Before 2003, only one judicial nomination on which cloture was not invoked was not confirmed."

#2) "Opposition to cloture on the controversial 1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan and showed that the nominee lacked clear majority support."

#3) "[Griffin said] that there never was a real filibuster because a majority would have beaten Justice Fortas outright."

#4) "[Griffin] personally told me that there never was an intention to use the filibuster to defeat the Fortas nomination."

#5) "Some have said that the Abe Fortas nomination for Chief Justice was filibustered. Hardly. I thought it was, too, until I was corrected by the man who led the fight against Abe Fortas, Senator Robert Griffin of Michigan."

Dean acknowledges that Hatch Statement #1 is "correct."

Regarding Hatch Statement #2, Dean says that it is misleading and conjecture. Yet, Mr. Dean also says that "no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority....We'll have to await Robert Caro's next volume on Johnson to see..." Thus, Mr. Dean basically restates Hatch Statement #2, and yet Mr. Dean paradoxically does not criticize his own statement as being misleading or conjectural. The simple fact is that Sen. Hatch's statement #2 is entirely correct. Back in 1968, the New York Times described exactly what Hatch now describes: "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." Was this New York Times statement "conjecture" or "misleading"? Of course not, and neither is Hatch Statement #2.

Regarding Hatch Statement #3, Mr. Dean writes that the "evidence is overwhelming, however, that there was indeed, a filibuster." It is apparent from Hatch Statement #3 that he was only saying that there was no "real" filibuster, in the sense that a majority was ready to defeat Fortas. As already mentioned, Dean himself admits that "no one will ever know" if a majority was ready to defeat Fortas. Mr. Dean therefore cannot reasonably deny the possibility that Sen. Griffin knew Fortas could not get the votes, much less reasonably criticize Hatch for believing Griffin.

Regarding Hatch Statement #4, Dean says it is absurd to believe that a filibuster was not meant to defeat Fortas. Dean says that either Hatch did not hear Griffin correctly, or Griffin forgot what happened in 1968. But Dean is the one who is being absurd. It's perfectly reasonable to believe that Senators opposed to Fortas wanted to fully debate the actual issues involved, in order to enhance the consensus against Fortas, rather than to prevent an ultimate up-or-down vote. Here's what Griffin said in 1968 about having a cloture vote after less than a week of debate:

Those who are considering invocation of cloture at this early stage on such a controversial, complex matter should keep in mind that Senate debate last year on the investment tax credit bill lasted 5 weeks; that the Senate debated the Congressional reorganization bill for 6 weeks; and that we spent 3 weeks earlier this year on the crime bill.

Certainly, this statement proves that Senators opposing Fortas claimed at the time that there was no intention to use a filibuster to permanently prevent a final vote on Fortas. Thus, it is very likely that Griffin did tell Hatch what Hatch Statement #4 says. It's crystal clear in the record that Sen. Griffin denied in 1968 that he had filibustered the Fortas nomination:

When is a filibuster, Mr. President? . . There have been no dilatory quorum calls or other dilatory tactics employed. The speakers who have taken the floor have addressed themselves to the subject before the Senate, and a most interesting and useful discussion has been recorded in the Congressional Record....

Why must John Dean question Sen. Hatch's hearing and Sen. Griffin's memory, when this quote from the Congressional Record verifies Hatch Statement #4? Mr. Dean is simply trying to revise history to suit his agenda.

Regarding Hatch Statement #5, the Republican Majority Leader at the time, Sen. Everett Dirksen, made clear that he opposed cloture because his decision on the merits was "still open" and because the nomination warranted further "exploration." Even if Dean believes that Senator Dirksen and other Senators who expressed the same sentiments were lying, still the simple fact remains that Fortas did not clearly have 51 votes. Dean admits that "no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority....We'll have to await Robert Caro's next volume on Johnson to see...." That is what primarily distinguishes the Fortas incident from the filibusters today. Everyone knows that Pres. Bush's nominees can get a simple majority for confirmation.

Some may say that Fortas was "filibustered" while others may say he was not. As Norman Ornstein has explained, when a filibuster occurs, "we're not going to see something where all of a sudden it's clear, the signs go up, 'filibuster.'" If Fortas was filibustered, it is still an issue precisely when the discussion turned into a filibuster, and it is also an issue whether the filibuster was merely intended to buy time in order to change minds, or instead was intended to permanently prevent an up-or-down vote. In any case, the relevant fact is that when the cloture vote was taken in 1968, there were not 51 Senators who were clearly ready to confirm. Today there are.