The Facts About the Fortas Filibuster: Why Orrin Hatch Is Wrong
Leading this charge is Senator Orrin Hatch of Utah - who has repeatedly made this very claim on the Senate floor. But he is dead wrong.
I should know: I was there when the history he is trying to rewrite was made. And not only does this very use of the filibuster have precedent, but that precedent was made by Republicans.
I know this for a certainty based on information I received directly from the Senate Republican caucus at the time. Yet, for purposes of this column, I think it better to let the record speak for itself.
Filibuster Background: The Basics
As many readers will be aware, the "nuclear option" would change the Senate rules. It would be done by a ruling of the presiding officer of the Senate (probably Vice President Cheney), who would declare it unconstitutional to filibuster a judicial nomination. Rulings of the presiding officer can be upheld by a simple majority.
Currently, a "cloture" vote to stop a filibuster requires a supermajority of the Senate. The "nuclear option" simply eliminates filibusters for judicial nominations.
The intent behind such a rule change would be to make the Senate a rubber stamp for the president's judicial nominees, no matter how extreme. And the result would not only be the approval of the president's current nominees to the U.S. Court of Appeals. Actually, the real issue here is what the ground rules will be for the forthcoming fight over the next opening(s) on the U.S. Supreme Court.
To make sure this fight goes their way, Republicans need to dispose of their own filibuster precedent before it starts. This explains their concerted effort to revise history to suit their agenda - even if it means utterly ignoring the facts.
Allow me to set the record straight.
The key event occurred in 1968. That year, Republicans blocked the nomination of Associate Justice Abe Fortas to become Chief Justice of the Supreme Court. And they did so with a filibuster.
Senator Hatch was not in Washington in 1968; he was not elected to the Senate until 1976. And he has either been grossly misinformed as to what occurred then, or is intentionally lying about it.
Hatch's False Statements About the Successful 1968 Republican Filibuster
On March 10, Senator Hatch told his colleagues on the Senate floor that "[b]efore 2003," when the Democrats began using the filibuster, "only one judicial nomination on which cloture was not invoked was not confirmed." Put more simply, this means that before 2003, only one nomination was defeated by filibuster. That's correct - as far as it goes. But what Hatch said next, was not.
Hatch continued: "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." This, as the record set forth below shows, is misleading, as well as conjecture.
Hatch says his source for this information was former Michigan Senator Robert Griffin, who led the Republican attack against Fortas. Hatch said that Griffin "personally told me that there never was an intention to use the filibuster to defeat the Fortas nomination."
That statement is absurd. Either Senator Hatch did not hear Senator Griffin correctly, or Senator Griffin has forgotten the events of 1968. A filibuster actually did defeat the Fortas nomination; no one can deny that. Was it all a colossal misunderstanding? Of course not.
On April 27, speaking on the Senate floor, Senator Hatch repeated his error. He said, "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."
Hatch then asserted that the former senator told him, and the Senate Republican caucus, "that there never was a real filibuster because a majority would have beaten Justice Fortas outright."
The evidence is overwhelming, however, that there was indeed, a filibuster, and that it was very real.
What Really Happened in 1968: A Republican Filibuster of Justice Fortas
Below, I have set forth the contemporaneous record, so readers can judge for themselves. While I have cited only the New York Times, similar reports are found in the Washington Post and the Los Angeles Times.
On June 22, 1968 the New York Times's front page headline reported: Chief Justice "Warren To Leave Court; Some In GOP Open Fight To Bar A Succession In '68." The third paragraph of the story stated, "Two Republican Senators, Robert P. Griffin of Michigan and John G. Tower of Texas, said in Senate speeches that they would fight any effort by [President] Johnson, a 'lame duck' president, to name a new Chief Justice in the fading months of his term."
Three days later, on June 25, 1968, the New York Times reported "19 In The Senate Study Filibuster: All in GOP." The opening paragraph stated that a "determined bloc of Republicans threatened a filibuster today as they stepped up their fight against confirmation of President Johnson's appointments to the Supreme Court." The story noted, however, that the 36 Republicans in the Senate were split, with their leader Senator Everett Dirksen favoring the Fortas appointment. It also explained that Southern Democrats were likely to join the opponents. The article stated that the "possibility of a filibuster was raised late today by Senator Robert P. Griffin of Michigan," although no final decision had been made.
By June 28, 1968, the New York Times reported that "Plans for a filibuster were announced by Senator Robert P. Griffin, a Republican of Michigan. 'I am prepared to talk at great length,' he said. Asked if there was a difference between talking at length and a filibuster, he replied, 'No difference.'" In a related story that same day, another Times reporter wrote that the Republicans "promised a filibuster, if necessary, to block the confirmation" of Fortas.
As the Senate confirmation hearings on Fortas progressed, Senator Griffin even lashed out at his party's standardbearer in the presidential race, chastising Richard Nixon after he said that he opposed the filibuster of Fortas. The New York Times headline on September 14, 1968, stated "Griffin Rebukes Nixon for Stand Opposing a Filibuster on Fortas." The story revealed that Nixon was not supporting Fortas, rather "he opposed all filibusters, the anti-Fortas one included."
The September 14 Times story also predicted that Fortas would likely get confirmed -- notwithstanding the protracted and perhaps brutal hearings that had occurred during the summer. There, Fortas had been attacked by Republicans and Southern Democrats, principally for his cronyism with Lyndon Johnson and his rulings as an Associate Justice that tolerated "pornography" on First Amendment grounds. The Times reported that, nonetheless, "Informal polls in recent weeks have shown that a majority of Senators now favor confirmation of Justice Fortas. Opponents believe that only by staging a filibuster can they block confirmation."
When the Senate Judiciary Committee, by a vote of eleven to six, approved the Fortas nomination, the September 18, 1968 New York Times reported: "Fortas Approved By Senate Panel; Filibuster Looms." The story said that the committee's "action set the stage for a filibuster on the Senate floor next week." Because the filibuster had gained momentum, the story added, Fortas's prospects for confirmation were becoming increasingly doubtful. "Even the supporters of the nomination have expressed doubt they can muster the two-third vote necessary to cut off debate on the floor," according to the Times.
Finally, this story indicated that when the Fortas nomination arrived on the Senate floor, "it will be met with a lead-off filibuster speech by Senator Griffin, followed by speeches by Senator Howard H. Baker, Jr. of Tennessee and others among the 18 Republicans who have joined the anti-Fortas effort."
(In noting that the effort was eighteen men strong, the Times was doubtless underlining that the GOP had the manpower necessary to mount a filibuster. In those days, the Majority Leader could force a filibuster to go around the clock, so it would not tie up other Senate business indefinitely.)
As the nomination headed to the Senate floor, the vote count was still not clear. The "Associated Press survey released today" -- the September 18th Times story also reported - "found 47 Senators favoring confirmation of Mr. Fortas and 27 opposed. Twenty-two described themselves as uncommitted and four were not reached."
It should be noted, however, that the Republican's Leader, Senator Everett Dirksen, had stated earlier that "at least two Senators who had signed the petition circulated by the Griffin forces" had assured him that "they will vote for [Fortas's] confirmation."
(In fact, no one other than a psychic could know, one way or the other, how a vote on confirmation may have turned out, for the filibuster, in fact, succeeded. So much for Hatch's claim that "a majority would have beaten Justice Fortas outright.")
On September 25, 1968, the Majority Leader, Senator Mike Mansfield, brought the Fortas nomination up on the Senate floor. The next day, the New York Times reported that "Critics Of Fortas Begin Filibuster, Citing Propriety; Griffin Attack Last 3 Hours…." The Times stated that "Senators opposing the nomination of Abe Fortas as Chief Justice began a historic filibuster today …." (Technically, this filibuster was not on the confirmation, rather on whether the Senate should even consider the nomination.)
The Times also noted, "On one occasion this afternoon the scene resembled some of the classic Southern filibusters against civil rights bills. Senator Ernest F. Hollings of South Carolina read through long passages of James F. Byrnes's memoirs in a thick Southern accent, while Senators and staff members chatted and read."
The Times article also discussed the prospect of Mansfield moving to cut off the debate with a cloture motion, explaining that "such a motion must carry by two thirds of those voting." (If all 100 Senators were on the floor, the Senate Rules, as of 1968, required the vote of 67 Senators to end debate. Thus, 34 Senators could keep a filibuster going.)
"The Associated Press published a poll today showing that 35 of the Senate's 100 members are now committed against voting for cloture," the Times added. In short, the White House did not have the votes to end the filibuster.
The editorial page of the New York Times weighed in on September 27 on the filibuster issue. It observed that "[b]ehind the developing filibuster are strong undertones of politics, spitefulness and racism. . . . The real leaders of the filibuster are those old guard Southerners, Senator Eastland of Mississippi and Senator Thurmond of South Carolina. . . . These Southern bigots must be pleased indeed that the more respected Senators are serving as their cats'-paw in the case against Mr. Fortas."
On October 1, 1968 the Senate voted on Mansfield's motion to cut off debate on whether or not to take up the nomination. And on October 2, the Times reported that the "Senate refused by a wide margin today to stop the filibuster…. The action appeared to doom the nomination. The vote was 45 to 43 … -- 14 votes short of the two-thirds margin necessary to end the filibuster."
The rest, as they say, is history.
History's Views on Fortas's 1968 Defeat: It Resulted From The Filibuster
Virtually every historian who has looked at these events has concluded -- contrary to the newly revised history of Hatch and Griffin -- that Fortas was defeated for the post of Chief Justice by this Republican orchestrated, precedent setting filibuster.
Consider this quote from Fortas biographer Laura Kalman regarding how the story ended: "Fortas could have pressed for a second vote," because the filibuster had only been on the motion to take up the nomination, "but he was so far short of the two-thirds majority he needed [i.e., fourteen votes] that he asked [President] Johnson to withdraw his nomination that night."
In short, Fortas was defeated by the filibuster. He was not able to put together the votes to invoke cloture, and end the filibuster. And the matter ended there.
Because that was how it ended, historically, no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority against Fortas, as the revisionists now claim.
It's not just Kalman who reports this. For example, political scientist and Senate historian Ross Baker told NPR as recently as April 21, 2005, that the Republicans were full of beans - my characterization, not his -- in claiming that the Democrats' use of the filibuster was unprecedented. "And in fact," Baker added, "there is indeed fairly recent precedent for it in a filibuster that was mounted against Abe Fortas…. And certainly at the time, the Democratic floor leader who was the object of this, Senator Mike Mansfield of Montana, characterized it as a filibuster against a judicial nominee."
Both of the leading nonpartisan journals reporting on Congress have similarly concluded that Fortas was filibustered by the Republicans. Following the defeat of Judge Bork, Congressional Quarterly wrote of its conversation with Senator George J. Mitchell (a former federal judge), who had been there in 1968. CQ reported on October 24, 1987, "Fortas was blocked by a filibuster and, Mitchell said, a group of Republicans that year said flatly that no nominee was going to get through before the November elections."
To the same effect, a February 17, 2001 National Journal article reported, "Since 1968, Senators of both parties have waged overt filibusters against 13 judicial nominees, starting with Abe Fortas, whose nomination by President Johnson to be Chief Justice of the Supreme Court was filibustered until Fortas finally withdrew."
Senator Hatch should have checked the Senate's own official history. According to the website of the Secretary of the Senate, it was very much a filibuster that defeated Fortas: "On October 1, 1968," the website notes, "the Senate failed to invoke cloture. [President] Johnson then withdrew the nomination, privately observing that if he had another term, 'The Fortas appointment would have been different.'" (The title of the website page is: "Filibuster Derails Supreme Court Appointment.")
The Senate's information suggests that LBJ had the votes to get Fortas confirmed, but not to get past the filibuster. We'll have to await Robert Caro's next volume on Johnson to see if that suggestion is, indeed, historical fact.
Meanwhile, Senate Republicans should back off their bogus history. There is nothing conservative about such baseless revisionism. And unfortunately, this is not the only distortion of the truth they are engaging in, in their attempt to change the rules they helped write.
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This article was first published by Findlaw.com and is reprinted with permission of the author.