I don't think anyone bringing up Abe Fortas particularly cares about whether he was a good or bad nominee. It's usually brought up (from what I've seen) to counter Republicans saying or implying that the filibuster has never been used to thwart the President in the Senate's judicial advise & consent role.

And, if the Republicans I've heard using the word "unprecedented" prefaced their statement by explaining the subtle nuance of initial judicial appointment verses appointment as Chief Justice and explaining that, yes Republicans had filibustered a Chief Justice nomination before launching into their tirade about the Democrats' unprecedented use of the filibuster, I'd probably agree. But they don't because they know if they did they're argument would lose its power.

Precisely, Doug. It's never been used in any other context that I've seen other than countering claims from the Republicans about how it's never been used in the judicial area.

What sort of crook was Fortas? He resigned in disgrace shortly after this episode. In fact,he did not have the necessary votes in the Senate to move up and without the legendary arm twisting of his Patron, the notorious crook, LBJ, he might not have had even a majority of dumbocrats. He was a political hack.

Google easily confirms that Mr. Fortas was a liar and had ethical problems. His view of judging was to look for anything that would support the result he wanted. A judicial activist, in other words, and the country is much better off without a sleeze like him on the court. Why would Democrats even bring his name up? Defending crooks?

Anonymous

Your right, Fortas was not filibustered, he never had the votes.

"In other words, when someone says "Oh, but the Republicans filibustered Abe Fortas in 1968!" they're apt to also believe that this was somehow a bad thing and that Fortas was deserving of his seat."

As Doug says above, Paul, you aren't providing any reason for us to believe that people today think that Fortas deserved to be confirmed. I don't think so, Doug apparently doesn't think so and you obviously do not think so. Why would you go off on this jag? Why do you so frequently maim your own arguments with precisely one key sentence that is indefensible?

CJ proves our point: If people would quit lying in saying Fortas wasn't filibustered, we wouldn't need to keep pointing out the lie.

(Whether he had the votes for confirmation is irrelevant to the fact that he was filibustered. The misdirection is dishonest.)

With all due respect Paul I choose to believe Senator Cornyn rather than anything the liberal Washington Post says. I also could care less what LBJ "thought." As far as the "non partisan" Senate website, why should I believe it's non partisan? Who wrote it? I dismiss your evaluation out of hand just as quickly as you did.

CJ, you are vying for admission to the Earl "Don't confuse me with the facts. I've got a closed mind." Landgrebe club. (It's an old, inside Indiana joke, CJ.)

To CJ's continued nonsense, I am going to list here some contemporary sources (that is, contemporary to the time of the Fortas filibuster) that prove he was filibustered. And in anticipation of CJ's furthur continued nonsense that he can better choose what sources to believe, I give you, on the one hand Sen. Cornyn and CJ today vs. on the other hand, WaPo, Time magazine and CBS News with reporters in place as well as Senators Hart and Griffin then:

The Fortas Filibuster--from Time (11 Oct 1968 issue):

"Constitutionally Tragic. "Never in our history," cried Michigan's Democratic Senator Philip Hart, "has a matter of the nomination of a Justice to the Supreme Court been resolved by a filibuster." But shortly after Hart spoke, the Senate refused to cut off debate on whether it should even take up the Fortas nomination, thereby killing his chances. The vote was 43 against cloture to 45 in favor—14 short of the two thirds needed to stop the anti-Fortas filibuster.

Next day, at Fortas' request, Lyndon Johnson withdrew the nomination. It was a profound humiliation for the President. Said Johnson: "The action of the Senate, a body I revere and to which I devoted a dozen years of my life, is historically and constitutionally tragic." Johnson was referring to the fact that the Senate had never actually voted on the merits of the nomination, only on the procedural question of giving it formal consideration. All but forgotten was another loser in the affair: Homer Thornberry, who was to have replaced Fortas as an Associate Justice on the court. Since Fortas will now keep his own seat, there is now no room for Thornberry; his nomination lies in a legal limbo.

The Fortas defeat was a notable victory for Michigan Republican Robert Griffin. As leader of the anti-Fortas fight, Griffin had taken to wearing on his lapel a golden miniature of the mythological beast that is his family's namesake."

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From Washington Post (26 Sep 1968):

[on page 1, under the headline "Fortas Debate Opens with a Filibuster"]:

"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."

From Washington Post (2 Oct 1968--The day after the failed cloture vote on the Fortas filibuster):

"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."

From a CBS News broadcast on the evening of the first day of the filibuster (and as heard in the past week on a number of radio stations):

Walter Cronkite (September 25, 1968):

"Good evening. The Senate today began its expected, but unprecedented, filibuster against confirmation of a President’s nominee for Chief Justice of the United States, Abe Fortas."

Roger Mudd, later in the same broadcast:

"If the administration falls embarrassingly short of the two thirds vote needed to break the filibuster, the nomination could well be withdrawn. Roger Mudd, CBS News, Washington."

It is interesting to note that in his biography, Sen. Griffin, who indeed led the effort against Fortas, fudged events to somehow make himself seem more heroic as well as to try to deflect such critics as President Johnson and Senator Hart, who bitterly decried the use of the filibuster.

~~~~~~~~~~~~~~~~~~~~~~~

But at the time of the event, here is Sen. Griffin {as recorded midweek during the Sep-Oct. 1968 filibuster and quoted in the Congressional Record}:

"[T]hus far, there have been only four days of Senate debate on this very important, historic issue...[A] filibuster, by any ordinary definition, is not now in progress."

Again, Sen. Griffin's saying it doesn't make it so. It's important to remember he was trying to cover his ass by responding to a scathing floor speech by Sen. Hart. He tried to claim 4 days do not make a filibuster, but every contemporary participant and observer said otherwise. He repeated and improved upon the canard in his biography. In the absence of capitulation by either the "filibusterer" or the "filabusteree", filibusters last until the floor is yielded and a successful debate-ending cloture vote is held. That can be weeks, it can be days, it can be 3 hours.

Later, in his biography, Sen. Griffin rewrote history to make it seem that a filibuster didn't occur. As shown above, he was proven a liar by the contemporary record.

So, CJ, are you going to continue to hold hands with Earl?

Now, Paul, as to your comments, I'd like to respond to several things, but the overarching feeling I need to express is one of your being less than intellectually honest when you simply won't acknowledge the objective fact that when so many people continue to say and/or believe that prior to the current Bush Administration, the US Senate had never filibustered a judicial nominee, the argument can't be honest if it starts from the relative quality and merits of a filibuster rather than from the mere fact of the filibuster.

But, I am willing to take you up on your points and assume that you intended this as an honest discussion.

First, most polemicists do not put their least important, least persuasive point as their first one unless they add an "in passing"-type caveat, so forgive me if I reacted so strongly to your claim that if I say "Fortas was filibustered" it follows that I am also saying "Fortas should not have been filibustered." I think we now agree that no such linkage should be made. Fortas was unethical. Fortas was filibustered.

Your other three points go to the "precedental quality" of the Fortas filibuster.

First, you say that there is a substantial difference between then and now in that Johnson was not blocked "from substantially altering the Court's composition. Fortas was already an Associate Justice." The flaw in your reasoning is, of course, that this Associate Justice position would then need to be filled. In fact, as part of this pitcher-shortstop double switch, Johnson announced his intention to nominate Homer Thornberry to the vacated-by-Fortas seat. So, Johnson was being filibustered from potentially altering the makeup of the court. Nevertheless, I think this is a red herring, as judicial reputation and temperment, as opposed to political leanings, were a far greater influence on nominations at the time than they are now.

Then you say, "we should remember that the fact that the parliamentary maneuver existed and was used in the late Sixties doesn't necessarily make hypocrites of Republicans today." I would totally agree. It does not make them hypocrites. But it does make them liars--liars when they continue to say that the there was no filibuster of Fortas.

Your next point is that "one may object to the legitimacy of an institution in principle but use it in practice." This is a tautology. It is also the setup for being accused of hypocrisy. With the good may come the bad. I say wear your hypocrisy with pride, do not run from it.

In your update (which, btw, I appreciate as a response), you add the argument concerning the existence of "majority support" for a judicial nominee as a criterion for evaluating the legitimacy of a filibuster. I do not grant that this is a useful factor, but if we did agree on this, you would need to acknowledge that during those Clinton years when he faced a Republican Senate majority, he was blocked by means other than filibusters from getting many of his judicial nominees to up-or-down votes on the floor of the Senate. Further, many of these nominees enjoyed clear majority support, even though individuals in the Republican majority blocked the nominees from proceeding to the floor.

I don't care to respond to commenters who mix their analyses with insults. There is no grounds for asserting that I am being "less than intellectually honest" in any statement I've made here--I may have erred (particularly as regards the Fortas nomination's relationship with Johnson's simultaneous nomination of another candidate to the associate justice seat) but I have not, and will not, mislead anyone as to the steps I've taken in preparing this brief essay. I am glad to have your comments, though, as I can safely discount anything you write in the future.

Nash (the cut and paste master)

Personally attacking someone with some bizarre "inside joke" that of course you know I wouldn't understand shows your intellectual vacancy.

Is cutting and pasting your only talent?

Like much else in our culture we are defining deviency downwards. A Senator Wayne Morse, or even a Strom Thurmond would and did take the floor for extended debate. Better yet, they could actually speak coherently for extended periods of time-a talent lacking in our current whiners.
I don't see that Fortas fits the mold of a genuine filibuster. He was just part and parcel of a deeply corrupt Democrat party. Paul does err from time to time and we call him on it-I see no dishonesty anywhere in any of his posts and that particular insult needs to be withdrawn and should be withdrawn along with an apology.

Paul, am I wrong then to have taken this as an insult:

"I want to suppose that they are themselves either ignorant of these circumstances, or are instead convinced that Fortas should have been seated. The less charitable explanation is that these writers are leaving out these facts because it might highlight the difference between the obstruction currently ongoing in the Senate (arguably from both sides during different administrations). Such duplicity is hardly unknown to either party,"

?

Because I am one of those writers and you added that as part of an update after I had responded to your original post. I apologize for the offense, but please be as harsh with yourself as you are with me.

But Anonymous is correct--I do have a nasty tendency to escalate an interaction when I feel I've been insulted. I am sorry, Paul.

When I refer to "Democrats and anti-nuclear option writers," I refer to the people whose writings were coming up on the first two or three pages of the technorati search I ran last night. I didn't implicate anyone here--when I want to insult people, I generally call them out by name. I apologize for any misinterpretations I may have caused.

As for the issue of whether it was a filibuster, I believe it is, and the Congressional Research Service--which is the very definition of nonpartisan--agrees with the two other nonpartisan sources I've cited (the Senate historian and Norm Ornstein). Reasonable people may dispute this, but I have reached the opposite conclusion, and as the Post story I linked to implies, Frist's office has accepted the definition and has tried to reformulate their line on this issue.

I greatly appreciate that, Paul.

I have noticed that Sen. Frist, among a few others, is now very cautiously parsing the "Fortas not to be used as a precedent because" argument. I respect them, and anyone else who is cautious in this way, for that, but it does remind me of the following anecdote:

My mom is from Vincennes. Although it's been a long while since I've been back there, when we used to visit my grandparents, we'd see a sign at the entrance to the town:

Welcome to Vincennes. Home of Vincennes University, Oldest college east of the Mississippi River

then in smaller letters: West of the Allegheny Mountains.

and then in much smaller letters: And north of the Ohio River.

That's a lot less territory than the original claim would have you believe.

It makes me wonder if all of the parsing on the Fortas filibuster (might not have been majority supported; didn't last very long; as opposed to now, involved the traditional reading of recipes on the floor; was used to block a justice who didn't deserve to remain on the court and so on) hasn't carved out a very small and meaningless chunk of territory.

But again, I appreciate your response. I will remain civil in the future. For what little it is worth, I'm neither a Democrat nor a Republican. I am most definitely a contrarian Hoosier.

[For CJ, Earl Landgrebe was a Representative to the US House of Representatives and the quote was his statement of undying support for Richard Nixon in the darkest days of Watergate. He was *my* rep. I admired his tenacity, but not his powers of reasoning. In a rhetorical sense, I do not see pointing out the similarities in argumentation styles between you and him as an insult. If you could respond to the actual argument I am making with those "cut-and-pastes" you so abhore and prove to me how Fortas was not filibustered, I'd be happy to delink the two of you in my thoughts and words.]

From the pro-Fortas New York Times, 10/2/68, p. 24:

"However, Senator Thomas J. Dodd, Democrat of Connecticut, who voted against closure for the first time in his Senate career, explained later that he had done so because he did not consider the debate a filibuster."

And earlier in the same article:
"In a speech before the vote, Mr. Griffin warned that a dozen opponents of the nomination still wanted to speak but had been denied the opportunity to do so by the move to impose closure -- that is, to cut off debate."

Unlike the years-long "filibusters" where the Democrats don't say anything at all, Democrats and Republicans were actually discussing Fortas' qualifications, with the prospect of changing minds. President Johnson said, "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." In Johnson's estimation, if he didn't get a quick vote on Fortas, he would lose. With senators still waiting to speak against his nominee, the president saw the odds shifting from a narrow win to a narrow loss, which is why he gave up after only a few days of debate.

Nash, your proof that this was a filibuster consists of quotes from pro-Fortas Democrats. "Filibuster" was just a rhetorical club with which to bash Fortas opponents. As noted above, Fortas' opponents did not consider their arguments against Fortas to be a filibuster, but rather an attempt to inform their colleagues why Fortas did not deserve to be elevated to the position of Chief Justice. Just because Johnson did not get a vote as quickly as he wanted does not make an extended debate the same thing as a permanent filibuster.

A "three hour" filibuster? Are you kidding? An extra three hours of debate followed by a vote is qualitatively different than four years of [imaginary] debate, with the promise of years more so that there will never be a vote.

--

As a side issue, does anyone know of any judge besides Chief Justice Warren where the president nominated a replacement while the judge was still in office? One of the arguments against Fortas was that he could not be nominated to be Chief Justice because the Supreme Court already had someone in that position.