May 3, 2005
RECIDIVISM AN EXCUSE?:
The Republicans' Filibuster Lie: They seem to have forgotten the Fortas case. (David Greenberg, May 3, 2005, LA Times)
To justify banning Senate filibusters in judicial nomination debates, Republicans are claiming support from history. Until now, say Republicans such as Sen. John Kyl and former Sen. Bob Dole, no one has used filibusters to block nominees to the federal courts. Because Democrats have broken an unwritten rule, their logic goes, Republicans are 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 But since 1968, six candidates have been rejected or withdrawn, and four others have faced major hostility.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.
This contentious new era began on June 13, 1968, when 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. [...]
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 most of his fellow Dixiecrats with him.
Is the argument that Democrats have previously broken the rule once before for racial reasons really all that compelling a reason not to codify the rule now? Posted by Orrin Judd at May 3, 2005 8:07 AM
There was feigned outrage over news that he had earned $15,000 for leading summer seminars at American University — a real but petty offense that critics inflated into a disqualifying crime.
Interesting how the article omits the fact that Fortas was later also found to have accepted $20,000 from Louis Wolfson, who was under investigation for securities fraud, and forced to resign under threat of impeachment. The man was corrupt. (Unsurprising, he was a friend of LBJ.)
Posted by: John Thacker at May 3, 2005 10:25 AMFortas also couldn't get more than 45 votes in the Senate. No one's arguing that judges that can't get a majority shouldn't be voted down, either.
Posted by: John Thacker at May 3, 2005 10:28 AMFortas went to my high school's biggest football rival. Not noted as the most reputable people. But enough about that, OJ you might be interested in the fact that it was Abe Fortas who was most insistent on bringing the 1967 Epperson case to the Supreme Court and the result of which is that the Court struck down the anti-evolution laws of the various states. Black's dissent was interesting. (not that I want to be brought into discussions of evolution)
Posted by: h-man at May 3, 2005 12:59 PMAnd Fortas admittedly continuing to advise President Johnson on race riots and Vietnam. There is even credible belief that he informed the President about the details of Court deliberations. He had been an LBJ crony ever since helping Johnson win his first Senate race. These concerns were real.
Posted by: John Thacker at May 3, 2005 12:59 PMh:
Believe me, you're best left out. Supposedly our grandfather--part of the old Dewey legal mafia from Albany that surrounded Ike--was offered the seat that eventually went to Brennan. Wouldn't leave Brooklyn though.
Posted by: oj at May 3, 2005 1:04 PMJohn:
As I recall, Fortas' deal with Wolfson was $20,000 per year for his life, and for his wife's life if he predeceased her.
Posted by: Fred Jacobsen (San Fran) at May 3, 2005 5:40 PM