Democrats Point to '68 and Fortas
But GOP Senators Cite Differences in Current Effort to Bar
Votes on Judges
By Charles Babington
Washington Post Staff Writer
Friday, March 18, 2005; Page A03
The Senate was launched on a full-blown filibuster, with
one South Carolina senator consuming time by reading "long
passages of James F. Byrnes's memoirs in a thick Southern
accent," according to a newspaper account.
That four-day talkathon in September 1968 has largely been
forgotten. But some Senate Democrats want to bring it back to
mind to counter a key Republican attack against their stalling
tactics that have blocked confirmation votes for several of
President Bush's most conservative judicial nominees. The GOP
claim, asserted in speeches, articles and interviews, is that
filibusters against judicial nominees are unprecedented.
Judiciary Committee Chairman Arlen Specter (R-Pa.) told his
panel this month that the judicial battles have escalated,
"with the filibuster being employed for the first time in the
history of the Republic." Sen. Orrin G. Hatch (R-Utah) said in
a Senate speech last week, "The crisis created by the
unprecedented use of filibusters to defeat judicial
nominations must be solved."
Such claims, however, are at odds with the record of the
successful 1968 GOP-led filibuster against President Lyndon B.
Johnson's nomination of Abe Fortas to be chief justice of the
United States. "Fortas Debate Opens with a Filibuster," a
Page One Washington Post story declared on Sept. 26, 1968. It
said, "A full-dress Republican-led filibuster broke out in the
Senate yesterday against a motion to call up the nomination of
Justice Abe Fortas for Chief Justice."
A New York Times story that day said Fortas's opponents
"began a historic filibuster today." As the debate dragged on
for four days, news accounts consistently described it as a
full-blown filibuster intended to prevent Fortas's
confirmation from reaching the floor, where a simple-majority
vote would have decided the question. The required number of
votes to halt a filibuster then was 67; filibusters can be
halted now by 60 of the Senate's 100 members.
The Senate had confirmed Fortas in 1965 as a Supreme Court
associate justice. But Johnson's effort to elevate him to
chief justice three years later, when Earl Warren announced
his plans to vacate the post, ran into stiff opposition from a
core of GOP senators and several conservative southern
Some current Republican leaders -- citing comments by then-Sen.
Robert P. Griffin (R-Mich.), who led the Fortas opposition --
say the 1968 debate was not a true filibuster. But there is
little in the record to support that assertion. The Washington
Post reported on Oct. 2, 1968: "In a precedent-shattering
rebuff to the Administration, the Senate yesterday refused to
cut off the filibuster against consideration of Abe Fortas to
be Chief Justice." The Congressional Quarterly Almanac
reported in 1968: "The effort to block the confirmation by
means of a filibuster was without precedent in the history of
the Senate." The Senate Web site's account of the episode
is headlined "Filibuster Derails Supreme Court Appointment."
Current GOP leaders sometimes amend their comments, saying
the Fortas battle is not a precedent for today's filibusters
because Fortas faced so much opposition that his confirmation
would have failed on a simple yes-no vote. Democrats
acknowledge that the nominees they are blocking -- on grounds
they are too conservative -- would be confirmed by a
simple-majority vote in the Senate, where Republicans hold 55
"Never before has a minority blocked a judicial nominee
that has majority support for an up-or-down vote on the Senate
floor," Majority Leader Bill Frist (R-Tenn.) said in a widely
reported December speech.
But such assertions are unproven at best, and certainly
subject to challenge based on the record. It is impossible to
gauge the exact support for Fortas because 12 senators were
absent for the "cloture" or "closure" vote, which failed to
halt the filibuster. The 45 to 43 vote in favor of ending
debate fell far short of the needed two-thirds majority.
Some Fortas backers, including Johnson, said the vote
suggested that a slim majority favored him. The disappointed
president "feels there is a majority in the Senate in favor of
the nomination," his spokesman said shortly after the defeat.
Anecdotal evidence suggests, but does not prove, that a
majority of senators may have backed Fortas or been undecided
when the debate began. An Associated Press head count found
that 35 of the 100 senators "are now committed against voting
for closure," the New York Times reported. That suggested that
as many as 65 senators conceivably were open to voting on the
Then-Sen. Howard H. Baker Jr. (R-Tenn.), a Fortas opponent,
also hinted that his side felt it lacked a majority.
Defending the newly launched filibuster, Baker said: "On any
issue the majority at any given moment is not always right."
Frist sometimes speaks of the current judicial impasse in
terms that take the Fortas case's complexities into account.
"Never before in the history of the Senate has a nominee with
clear majority support been denied an up or down vote
on the Senate floor because of a filibuster," Frist said
Tuesday. Such language puts him on more solid historical
footing. The New York Times wrote of the 45 to 43 cloture roll
call: "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 strongest evidence that anti-Fortas senators were not
confident of commanding a majority is the fact that they
fought so tenaciously to keep the confirmation from reaching a
vote, says Norman J. Ornstein, a congressional scholar who has
written extensively on the Fortas matter. Ornstein, of the
American Enterprise Institute, said: "This was a
filibuster. It was intended to keep the nomination from moving
forward for the remainder of that term."
Frist and others who now threaten to ban filibusters of
judicial nominees, Ornstein said, "are trying to provoke a
change that isn't defensible through history."