Filibuster foes argue over '68 Fortas precedent

WASHINGTON - In the raging Senate battle over judicial filibusters, Abe Fortas’s name comes up so much you’d think that he was one of the people now being nominated for a spot on the federal bench.

Senate Democratic Leader Harry Reid of Nevada kicked off debate on the Senate floor Thursday morning by brandishing a giant-sized reproduction of the front page of the Sept. 26, 1968 edition of the Washington Post, pointing to the headline, "Fortas debate opens with a filibuster."

"He was successfully filibustered," Reid declared.

Fortas was the Supreme Court justice and long-time confidant of President Lyndon Johnson whom Johnson tried to elevate to chief justice.

Republicans and Democrats have battled over the meaning of the Fortas fight for a very good reason: it is a precedent for a filibuster battle over President Bush’s appeals courts nominees and precedent perhaps for a Democratic attempt to filibuster Bush’s nominees to the Supreme Court if there is a vacancy, as expected, this summer.

On June 26, 1968, Johnson nominated Associate Justice Fortas, whom he’d placed on the court in 1965, to be chief justice, replacing the retiring Earl Warren.

There are sharp differences between the 1968 fight and any Supreme Court nomination Bush would make this summer:

• Johnson was an enormously unpopular lame duck in the final six months of his presidency, a man repudiated by his own party in the 1968 primaries. Bush has three years, eight months left in his presidency and has the almost-unanimous support of his party on the judges issue.
• Republicans had a good chance to win the 1968 election and wanted to keep Warren’s seat open for the new Republican president.
• The vote on ending debate on the Fortas nomination didn’t come until Oct. 1, 1968, a mere month before the election.
• A bipartisan coalition defeated Fortas; any filibuster this summer would be a purely Democratic effort.

Lengthy hearings before the Judiciary Committee brought to light much information that damaged Fortas, including the fact that after joining the court, he had violated judicial ethics and the principle of separation of powers by regularly going to the White House to draft Johnson’s speeches and advise him on Vietnam War policy.

Outside income from business leaders
The hearing also revealed that Fortas, whose salary as a justice was $39,500, had accepted a $15,000 payment to lead seminars at American University. It turned out that Fortas’s former law partner raised the money from a coterie of business moguls, including the president of the New York Stock Exchange and the vice president of Philip Morris.

Sen. Robert Griffin, R- Mich., led an alliance of Republicans and Southern Democrats determined to scuttle the nomination.

In a letter written in 2003, former Sen. Griffin denied there was a filibuster, in the sense of an endless debate that kept Fortas from getting a straight up-or-down vote. The debate lasted only four days.

On Oct. 1, 1968, the Senate voted on a cloture motion — to cut off debate and proceed to the nomination itself.

Under Senate rules at the time, 59 votes were needed to end the debate, two-thirds of those present and voting, and move on to a straight up-or-down vote on the nomination.

The tally was 45 (35 Democrats, 10 Republicans) to end debate, 43 (24 Republicans, 19 Democrats) to continue it.

Fortas then asked Johnson to withdraw his nomination.

Griffin wrote in 2003 that the cloture vote “demonstrated that the White House could not produce the showing of a majority in favor of the nomination.”

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