Filibustering Judicial Appointments Is Unprecedented?

To justify banning the use of filibusters in judicial nomination debates, Republicans in the Senate are claiming support from history. Until now, say Republicans such as Sen. Jon Kyl and former Sen. Bob Dole, no one has ever used filibusters to block nominees to the federal courts. Because Democrats have broken an unwritten rule, their logic goes, Republicans are being forced to change written ones.

But the charge that filibustering judicial appointments is unprecedented is false. Indeed, it's surprising that so few Washington hands seem to recall one of the most consequential filibusters in modern times -- particularly because it constituted the first salvo in a war over judicial nominees that has lasted ever since.

Consider: From 1897 to 1968, the Senate rejected only one candidate for the Supreme Court (John J. Parker, in 1930). But since 1968, six candidates have been rejected or withdrawn, and four others have faced major hostility. During Bill Clinton's presidency, the willingness to challenge presidential prerogative spilled down to the level of appellate court nominees as well. Under Bush, federal court appointments have become an ongoing donnybrook.

This contentious new era began on June 13, 1968, when Supreme Court Chief Justice Earl Warren decided to retire, and President Lyndon B. Johnson tapped Associate Justice Abe Fortas, his old friend and advisor, to replace him. It’s often recalled that Fortas resigned from the court because of unethical financial arrangements. That’s true, but the disclosures that hastened Fortas’s resignation didn’t surface until 1969, months after his first ordeal. And, unfortunately, the ethical crisis that forced him from the bench has overshadowed and blurred memories of the details of his confirmation battle.

When Fortas was nominated for chief justice, he initially seemed an uncontroversial choice. Possessed of a distinguished career, he was amply qualified for the post. But Johnson, having forsworn reelection, was a lame duck, and the likely Republican presidential nominee, Richard Nixon, had made the Warren Court’s jurisprudence a campaign issue, pledging to name judges who would “interpret the Constitution,” and not “legislate from the bench.” Republicans thus saw no reason to confirm Fortas before the November election.

It wasn't just Republicans who balked. After signing the 1964 Civil Rights Act, LBJ had predicted, “There goes the South for a generation,” and he now saw his prophecy realized. Conservative Southern Democrats had long abhorred the Warren Court's rulings on racial equality, sexual freedom, and the rights of the accused. When Sen. Richard Russell (D-Ga.) decided in early July to oppose Fortas, he brought with him most of his fellow Dixiecrats (including Sam Ervin of North Carolina, later a hero to liberals for his leadership of the Watergate committee). Some waited until Nixon was formally nominated by the Republicans (as opposed to the liberal Nelson Rockefeller) before announcing their opposition.

Fortas's foes had various justifications for opposing him. Republican Robert Griffin of Michigan attacked the justice as the president's "crony," pointing to the regular counsel he continued to give Johnson after joining the Court. (For justices to advise presidents was, by 1968, a longstanding but waning tradition.) Others had a field day with the news that Fortas had earned $15,000 for leading summer seminars at American University — a real but relatively petty offense that critics inflated into a disqualifying crime. (The arrangements that later drove Fortas from the court were more severe.) Anti-Semitism may also have been at work: According to Laura Kalman's biography of Fortas, Sen. James Eastland privately feared he "could not go back to Mississippi" if he voted to confirm a Jewish chief justice.

At bottom, however, Fortas's critics opposed him on ideological grounds. Sen. Strom Thurmond blasted Fortas's votes in a series of pornography cases, which the South Carolina Republican said had opened the floodgates to a torrent of hard-core smut. Thurmond arranged for reporters and Senate colleagues to screen explicit films that Fortas purportedly had legalized.

Thurmond also denounced Fortas for defending the rights of rapists, criticizing in particular the Supreme Court's decision in Mallory vs. United States, which let an admitted rapist go free because police had detained him excessively before his arraignment – but which had come down in 1957, before Fortas joined the Court. Fortas, in short, became the lightning rod for years of pent-up rage toward the Warren Court.

The Senate Judiciary Committee ultimately endorsed Fortas. But a band of Republicans and Southern Democrats took their fight to the Senate floor. On Sept. 25, 1968, they began a filibuster, beating back a motion to end debate, with Republican leader Everett Dirksen, once a Fortas supporter, switching sides to oppose cloture. Bested in the Senate, Johnson withdrew the nomination on Oct. 2.

The first defeat for a high court nominee in 38 years, the Fortas debacle began the Senate's now-commonplace defiance of a president's judicial appointments. And unlike in the 19th century, when senators often admitted to political motives when they opposed a nominee – for his stand on immigration or slavery, for example – since 1968 senators have typically fastened on some cover story, such as Fortas's outside income, or William Rehnquist's alleged voter intimidation in the 1960s, or Clarence Thomas's reported sexual harassment. These days, senators and presidents both routinely pretend that ideology doesn’t enter their calculations.

History belies such fictions. Fortas met defeat because of his liberal jurisprudence. And Democrats today oppose a handful of President Bush's nominees because they're extremely conservative. For this same plainly political reason, Republicans, who so masterfully deployed the filibuster in 1968, now want to abolish it.

History has nothing – and everything –- to do with it.

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POSTSCRIPT After a previous, shortened version of this piece ran in the Los Angeles Times, some supporters of the current Republican position – favoring the abolition of the filibuster in judicial nominations – emailed me with the same talking points. They say that their argument isn’t that that no one has ever used filibusters to block nominees but -- and please note the very subtle distinction – that no one has ever used filibusters to block nominees who already have clear majority support.

This distinction is specious.

First of all, support for Fortas was shifting throughout the process, and he almost certainly did have majority support at some stage. Indeed, the fact that he was appointed to the Supreme Court just three years earlier, albeit under a slightly different Senate, suggests as much. Moreover, there’s no way to tell if he ultimately would have been confirmed, since he never got an up-or-down vote. Republicans say that the cloture motion I discuss in this piece – which drew less than 51 votes to end the filibuster – proves he did not have the 51 votes for confirmation. But only 88 senators were present for that vote, and some of them said they supported Fortas’s confirmation but also supported continuing the floor debate about him.

All of this, of course, obscures a larger and more important point, which is: Who cares whether the Republicans’ claim is refined to include the line about “clear majority support”? This is the sort of verbal parsing for which Bill Clinton would have been crucified. The big picture remains the same: Republicans are obviously making an argument from history, claiming that the Democrats are doing something unprecedented. But in order to make their “unprecedented” claim hold up under scrutiny, they have to append this proviso, so as to semantically define away existing precedents. They could also assert that no one has ever before filibustered a judicial nominee who wasn’t from Texas, or who wasn’t Jewish. But so what? If presented with the facts of the Fortas filibuster, will any voters not already inclined to back Bush’s nominees be persuaded that the Republicans have a compelling historical claim to make? Doubtful.

(In fact, making this semantic alteration to include the “clear majority support” line suggests that the Republicans -- or at least these particular polemicists –- are not ignorant or forgetful of the Fortas case, as I’d charitably assumed, but are being purposefully misleading. For it suggests they’re actually well aware of the Fortas case and yet deliberately omit it from their discussion of history –- while laboring to redefine the meaning of “precedent” so that somehow the Fortas case won’t “count.”)

Finally, and most important: while I deplore the Republicans’ dishonesty, and while I hope that the Democrats stop their most extreme appointments, I wrote this piece as a historian, not as a partisan. In fact, I’m personally of two minds about whether the filibuster should be abolished altogether. More often than not in the past, it has been used by racists and demagogues to halt progress, and it seems plain to me that if the situation were reversed, Democrats would be critical, and Republicans supportive, of its use in situations like the current one. Notably, during the Fortas nomination three moderate-to-liberal law professors wrote a letter to the New York Times arguing against the use of the filibuster in judicial appointments on constitutional grounds. It may actually be in the long run interests of democracy to do away with the filibuster. But my article was trying to inject some historical facts into a debate that was abusing history.

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A shortened version of this piece ran in the Los Angeles Times.