Filibuster foes argue over '68 Fortas precedent

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Historians see filibuster
Two historians who have written biographies of Fortas both say that what happened in 1968 was indeed a filibuster.

“Both Abe Fortas and LBJ are spinning in their graves at the notion there was no filibuster,” said Laura Kalman, professor of history at the University of California at Santa Barbara and author of Abe Fortas: A Biography. “It was understood as a filibuster at the time.”

Republicans argue that what is unprecedented about the filibuster threats that blocked votes on ten Bush judicial nominees in 2003 and 2004 is that each of those nominees had majority support — in each case more than 51 senators voted for cloture.

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In the case of Miguel Estrada, for instance, 55 senators voted to end the filibuster and in all likelihood those 55 would have voted for his nomination. By way of comparison, in 1991, only 52 senators voted to confirm Clarence Thomas, whom Democrats had decided to not filibuster.

Would Fortas, likewise, been confirmed, had there been no filibuster?

It’s impossible to know for sure: one senator who voted for cloture, Kentucky Republican John Sherman Cooper, indicated he would vote against Fortas on an up-or-down vote.

Four Democratic senators, including one who’d spoken out early in strong support of Fortas, simply didn’t show up for the vote.

Kalman said, "Though historians hate ‘what if?’ questions, I think LBJ and Fortas could have believed Fortas would have been confirmed if there had been no filibuster. That was why they kept pressing forward, as [Johnson aide Joseph] Califano says, to let Fortas keep his head up with a majority regarding cloture. If they thought they could get a majority on cloture, I reason, they must have thought they could get a majority on confirmation.”

Fortas would have won
“I have no doubt that Fortas would have been able to get a majority of the votes in a straight up-or-down vote on his nomination,” said Prof. Bruce Allen Murphy, who teaches law and government at Lafayette College. Murphy’s 1988 book is "Fortas: The Rise & Ruin of a Supreme Court Justice."

“Had that not been true, the Republican-Dixiecrat alliance would not have been fighting such a desperate war to prevent this vote, even to the point in the Judiciary Committee of Strom Thurmond reading pornographic literature during questioning and showing pornographic movies to the press corps to illustrate his charge that Fortas was pro-obscenity on the Court, which in fact he was not.”

A lesson of the Fortas battle is that the nominee can help scuttle himself if he is not candid about his own behavior.

Murphy said the Republican-Dixiecrat delaying strategy would not have worked through the summer of 1968 “had Fortas not made himself so vulnerable by his own actions,” such as his moonlighting as a Johnson strategist while on the court and his mogul-funded American University seminars.

“In the end, word was being privately passed, likely from the Nixon campaign, to Sen. Jacob Javits, R – N.Y. and others, that another ‘bombshell’ about Fortas's ethics was on the horizon,” said Murphy. “It was this whisper campaign that kept the filibuster alliance in place and made any cloture vote impossible”

That bombshell, revealed in May 1969, was that in 1966 Fortas had signed a deal with financier Louis Wolfson to receive lifetime annual consulting fee of $20,000 from Wolfson’s foundation. Wolfson was imprisoned in 1968 for stock manipulation. Fortas had cancelled the deal after several months in 1966, but the revelation forced him to quit the court in 1969.

The biggest change in judicial politics since 1968 is that the screening of nominees has become a science.

Johnson knew Fortas like a brother and seemed blind to his unethical conduct. Any Bush nominee will be fully screened, scrubbed, rehearsed, and armed to answer senators’ questions.

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