Bob Dole On Abe Fortas & The Judicial Filibuster

20 May, 2005 by John Hawkins

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Because of the battle over judicial filibusters, there has been a lot of talk about Abe Fortas, who is commonly considered to have been the only judge ever filibustered prior to 2003.

But when you actually examine the Fortas debate in the Senate back in 1968, what you find is that it bears very little resemblance to what the Democrats are doing today. This is not an insignificant point because it shows that what the Democrats have been doing for the last two years is unprecedented in the history of the Senate.

Here’s Bob Dole to give us the rundown on what actually happened with Fortas and why it bears little resemblance to the situation today:

In 1968, President Lyndon Johnson sought to elevate his longtime personal lawyer, then-Associate Supreme Court Justice Abe Fortas, to be chief justice. I would not be elected a senator for a few more months, but followed the news surrounding this nomination closely.

…The claim Fortas was not confirmed due to a “filibuster” is off-base. A filibuster, commonly understood, occurs when a minority of senators prevents a majority from voting up-or-down on a matter by use or threat of permanent debate.

That simply did not happen with Fortas, where the Senate debated the nomination’s merits quite vigorously. Senators exposed the ethical issues involved and the widespread belief the vacancy had been manufactured for political purposes. They sought to use debate to persuade other senators the nomination should be defeated.

After less than a week, the Senate leadership tried to shut down debate. At that time, two-thirds of the senators voting were needed to do so, yet only 45 senators supported the motion. Of the 43 senators who still wished to debate the nomination, 24 were Republicans and 19 were Democrats.

President Johnson saw the writing on the wall — that Fortas did not have 51 senators in support of his nomination — so he withdrew the nomination before debate could be completed.

The events of 37 years ago contrast markedly with those the Senate faces today:

(1) Fortas lacked majority support when President Johnson withdrew his nomination. Today, Senate Democrats block up-or-down votes on judicial nominees who are supported by a majority of senators.

(2) Justice Fortas was politically associated with President Johnson and eventually resigned from the Supreme Court under an ethical cloud. No such charges have been made against President Bush’s nominees.

(3) The Senate debated the Fortas nomination only for several days before Johnson withdrew the nomination, versus the four years some of President Bush’s nominees have been pending. It’s clear the Democrats today have no desire to persuade, and have even complained further debate is a “waste of time.”

(4) Fortas’ support and opposition were bipartisan, with Republicans and Democrats on both sides of the question. Today, the controversy is purely partisan — with only Democratic senators, led by their leader Harry Reid, opposing an up-or-down vote.

Nothing could be more foolish than for the Republicans to stand by and watch as 200+ years of Senate precedent are thrown out the window so that in essence, the Democrats can veto any of Bush’s judges that they like. The nuclear option is not about taking a longstanding privilege away from the minority in the Senate, it’s about stopping the Democrats from creating a powerful, new privilege for themselves now that they’re in the minority. The Republican Senators up on the hill should remember that and so should the American people.