The Facts About the Fortas Filibuster: Why Orrin Hatch Is Wrong

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Mr. Dean, a FindLaw columnist, is a former counsel to the president.

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The debate over whether to use the "nuclear option" when it comes to Senate filibuster rules continues. Senate Republicans, consistent with their conservative beliefs, claim they are only employing the "nuclear option" to preserve a Senate tradition - not to change one. It is not their own "nuclear option," but rather the Democrats' use of the filibuster to block judicial nominations that, they claim, is truly "unprecedented."

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.


This article was first published by Findlaw.com and is reprinted with permission of the author.

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More Comments:

Peter K. Clarke - 10/9/2007

Generally speaking, there is more than one "side" to any story, but it is hard to see any rational jusification for Hatch's claims this time.

I wonder what the to-be-Senator was smoking instead of learning, in high school, what homework is and how to do it.

Is there no end to the raging addiction of compulsive hypocrisy amongst national politicians today ?

Peter K. Clarke - 10/9/2007

Hatch failed to do his homework, but, as far as we know, he can at least read. Mr. Lederer has evidently not bothered to do so here. Dean's "proposition that it was a filibuster", as Lederer puts it, is based not mainly on the "Secretary of the Senate" (as he -Lederer- pretends) but on eight separate citations from the New York Times, and two from additional sources other than the Senate Sec.). Nor does Dean's brief quote from the Secretary make any mention of Dirksen "abandoning" Fortas. Anything fabrication, it seems, will be resorted to in order to try to excuse flagrant political hypocrisy.

John H. Lederer - 5/15/2005


A piece that swallows whole the claim that Gonzales was referring to Owen when he said "judicial activism" without going to the original opinions to see?

Check out the original opnions-- as ought Fact Check to have done.

Arnold Shcherban - 5/14/2005

<The charm of history and its enigmatic lesson consist in the fact that, from age to age, nothing changes and yet everything is completely different.

Aldous Huxley

Kazys Ciurinskas, a former member of the Lithuanian SS division accused of killing Russian and Lithuanian Jews and POWs, lived in Indiana since the end of the war. Ciurinskas collected a $540 monthly pension from the German government since 1960 while living in the US and being a US citizen. Only in a 1995-97 (being perfectly aware about the whereabouts of this war criminal for decades) in the United States of America v. Kazys Ciurinskas case, the US District Court in Indiana stripped Ciurinskas of US citizenship.
In 1999 Kazys Ciurinskas was deported from the US after he admitted participating in Nazi-sponsored persecution in Lithuania and Belarus in 1941, when Lithuanian SS killed more than 19,000 Jews in these two countries.7 The case of Ciurinskas was one of several such cases in the US involving former Lithuanian SS members, but the number of such cases is a far cry from the number of these war criminals still living in the US.

A large number of former Waffen SS members also reside in the UK enjoying full benefits of the British citizenship and German pension benefits. This includes more than 1,500 members of the Ukrainian SS volunteer division responsible for killing tens of thousands of civilians and POWs in the former Soviet Union and Poland. The UK government has been struggling to extradite suspected Nazis but a 2001 Home Office initiative promised to go ahead with denaturalization and deportation of suspected Nazi war criminals.
A large number of Ukrainian SS members also escaped to Canada following the end of the war to hide within the large Ukrainian community in that country.

What makes the situation with pension benefits for the Waffen SS members even more repulsive is the fact that the amount of the monthly payments depends on the rank attained while serving in the SS.
According to the information made public by Germany in 1997, the war benefits for Nazi soldiers totaled $8 billion in 1996 alone and were paid out to 1.1 million veterans and dependents worldwide.

Under mounting international pressure the German parliament amended the 1950 Federal Benefits Law to prohibit payment of benefits to suspected war criminals. However, the law does not require German authorities to investigate the recipients of these benefits and has no provision for enforcement. This makes possible for thousands of suspected and known war criminals, including those living in the US, UK and Latvia, to continue receiving their SS pensions, even as hundreds of thousands of their surviving victims received no compensation from Germany or received a one-time check for a few hundred dollars for their troubles.

While attending a memorial ceremony for the Jewish-Latvian Holocaust victims in Latvia this September Israel’s Knesset Speaker Ruby Rivlin said: “We will remember their murderers - each and every one of them... We will remember, and we will continue to remind the world, of the greatest crime against humanity; of the criminals who committed it; and of the people who made it possible. We do not, and will not accept the attempt to clear a nation's conscience, by blaming everything that happened here entirely on the Nazi occupation. Latvia, as other young European democracies, is yet to face its true past, the awful truth. The Latvian people have much to answer for. Pardoning the worst of murderers, treating them as heroes, or freedom fighters, allowing them to march proudly on the streets - all that is spitting in the faces of the women, children and babies massacred here.”

The Latvian Parliament Speaker Ingrida Udre responded with tears in her eyes: “We will remember this terrible crime so that it will not be able to repeat itself. We must continue to investigate our role, and we will do so, and emphasize who are the guilty and who were the innocent victims.” The next weekend Ingrida Udre spent celebrating the opening of the Latvian Waffen SS cemetery. The ceremony was attended by Latvia’s Culture Minister Inguna Ribena, members of the Parliament, representatives of the Church, and Latvian military officials.>

Arnold Shcherban - 5/14/2005

Sorry, for "false alert".

Bush goverment led by the right-wing Republicans has recently shown that they are far more right than the most
of Americans think they are.
Bush's recent visit to Latvia was (contrary to its official characterization) taken as the open challenge to the very idea of democracy and human rights, besides of being openly offensive to the memory of the victims of Holocaust.

Below you'll find sound facts to justify the above conclusion.

< A morsel of genuine history is a thing so rare as to be always valuable.

Thomas Jefferson

Latvia’s attempts at rewriting the history of the Second World War have been a subject of hundreds of news articles, books and public discussions. The Jerusalem Center for Public Affairs called Latvia’s revisionist policies in regard to its wartime collaboration with Nazi Germany “one of the worst cases of falsification of history.”
A number of countries have to deal with the problem of resurging fascism. What makes Latvian neo-nazism more frightening is the open official support it gets from the Latvian government.

During the war Waffen Schutzstaffel (Waffen SS) formed two divisions consisting of Latvian volunteers – the 15th and 19th Waffen Grenadier Divisions. At the peak of its power the SS grew from four all-German divisions to 41 divisions numbering 900,000 members from all occupied countries, including more than 150,000 volunteers from Latvia - the biggest contribution of SS volunteers of any nation occupied by Germany.

Unlike other volunteer Waffen SS divisions created during the war the Latvian divisions were known for their proficiency in combat and commitment to the standards of Nazism. The 15th SS Latvian Division was the most decorated foreign volunteer division of the SS winning 13 Knight Crosses - more than any non-German Legion. In 1945, after being decimated by the advancing Soviet army, the remaining elements of the two Latvian SS divisions regrouped under the command of Waffen-Standartenführer Villus Janums for the defense of Berlin. They later surrendered to the Americans at Güterglück near the Elbe River.
(Some of them, instead of being prosecuted, were later
sent by the British and American intelligence agencies
back to Latvia to fight Communism, i.e. cowardly commit the worst acts of terrorism, primarily against Russian and Latvian civilians, killing them and bombing
factories, Kolhoz headquarters, hospitals and schools; one more chapter in the book of "conservative" war on terror.)

In the Spring of 1998 the remainder of this force paraded through the streets of Latvia’s capital carrying banners with swastika and SS insignia. The march was authorized by the Latvian government and attended by the Chief of Staff of the Latvian Armed Forces despite protests from Russia, France and Israel.

Only two weeks before the Nazi parade in Riga Latvian police brutally dispersed a peaceful demonstration by Russian war veterans. A few days after the Nazi parade in Riga two bombs damaged a synagogue and the Russian embassy in Latvia's capital.

Later same year Russia threatened economic sanctions against Latvia in response to the country’s official support for surging neo-nazism but this threat never materialized. Regretfully, Latvia’s official way of dealing with Nazi past remains to be through denial and historical revisionism.

In 1997 Germany revealed that up to 50,000 former SS members worldwide are receiving a monthly pension from the German government. This includes 3,377 Waffen SS men and their dependents in the US. Following this revelation US Rep. Gary L. Ackerman requested a list of the US recipients of these benefits. The list was sent by the German administration to the US Department of Justice but it was not made public as was demanded by various public and religious organizations.4

Among the people who received monthly benefits for SS veterans is the widow of SS-Obergruppenführer Reinhard Heydrich – the architect of the “Final Solution” - and the SS-Untersturmführer Heinz Barth, known in France as l'assassin d'Oradour-sur-Glane and sentenced to life imprisonment by an East German court for massacring hundreds of civilians in the French town of Oradour, qualified to receive a military pension following the reunification of Germany.>

Thank you for attention.

Arnold Shcherban - 5/14/2005

Marc "Adam Moshe" Bacharach - 5/12/2005

Another great analysis from Fact Check.org that does have some relevance to the issue of judicial nominees


John H. Lederer - 5/10/2005

"Nor does Dean's brief quote from the Secretary make any mention of Dirksen "abandoning" Fortas. Anything fabrication, it seems, will be resorted to in order to try to excuse flagrant political hypocrisy."

You are entirely correct. Dean's quoted portions do not suggest the abandonment by Dirksen or the loss of a majority in support. The Secretary of the Senate does, however, do so in the portions Dean failed to quote, which was my point:
"A seasoned Senate vote-counter, Johnson concluded that despite filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected.

The president soon lost Russell's support, however, because of administration delays in nominating the senator's candidate to a Georgia federal judgeship. Johnson urged Senate leaders to waste no time in convening Fortas' confirmation hearings. Responding to staff assurances of Dirksen's continued support, Johnson told an aide, "Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to get beat. Dirksen will leave us."

Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination."

Which is why I said that Dean's source contradicted him in regard to whether Fortas had majority support.

Whether one can "filibuster" when one is not a minority is a question I leave to you, the Senate Secretary, and the New York Times.

The scenario seems this: Fortas opponents wanted to delay the vote because more and more negative material was coming out. Fortas supporters wanted to jump Fortas position in the queue on the Executive Calendar to have the vote before they lost too much support. Fortas opponents "filibustered" (if you wish that term) the jump in the queue to avoid having the vote right off thinking they would eventually have a majority. They succeeded, and were right that the longer the delay the worse for Fortas -- whom you will recall eventually resigned as an Associate Justice when his ethical position became untenable as more material came out about third party payments to him.

Marc "Adam Moshe" Bacharach - 5/10/2005

Well put, Don. I agree entirely. The current debate over the filibuster is a sympton, not a cause, of the partisan hypocracy of both parties.

Although judicial nominations have always been political, I would probably credit the current climate in that area to Bork's nomination by Reagan and his subsequant blasting by Democrats. Since that time, neither party has been above doing whatever it takes to make the other one look bad.

Don McArthur-Self - 5/10/2005

Both sides on this issue are guilty of some hypocrisy. Republicans who want to argue that the use of the filibuster in this way is absolutely unique and outrageous have a selective memory, and so do the Democrats who seem to forget their own arguments against filibuster when they held the majority. I'll have to credit the Los Angeles Times editorial page with at least being consistent on the matter.

I would, however, argue that for Mr. Dean to call the Fortas nomination "precedent setting" is a bit over-the-top...in my own recollection, the real breakdown in the judicial confirmation process began 20 or so years later, and has grown worse over the last two decades - with the help of both parties.

John H. Lederer - 5/9/2005

The author's main point seems to be that the Fortas opposition was a "filibuster" and Forts enjoyed majority support.

He cites the Secretary of the Senate for the proposition that it wasa filibuster.

However, the source cited, the Secretary of the Senate seems to say that Fortas enjoyed a bare majority and lost that as Sen. Russell and other Democrats abandoned him, followed by Senator Dirksen.