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Filibuster Precedent? Democrats Point to '68 and Fortas

But GOP Senators Cite Differences in Current Effort to Bar Votes on Judges

By Charles Babington
Washington Post Staff Writer
Friday, March 18, 2005; Page A03

The Senate was launched on a full-blown filibuster, with one South Carolina senator consuming time by reading "long passages of James F. Byrnes's memoirs in a thick Southern accent," according to a newspaper account.

That four-day talkathon in September 1968 has largely been forgotten. But some Senate Democrats want to bring it back to mind to counter a key Republican attack against their stalling tactics that have blocked confirmation votes for several of President Bush's most conservative judicial nominees. The GOP claim, asserted in speeches, articles and interviews, is that filibusters against judicial nominees are unprecedented.

Fortas's nomination as chief justice went down in defeat when the Senate voted against halting a filibuster. That situation is being recalled in the dispute over Democratic efforts to filibuster some judicial nominations. (AP Photos)

Judiciary Committee Chairman Arlen Specter (R-Pa.) told his panel this month that the judicial battles have escalated, "with the filibuster being employed for the first time in the history of the Republic." Sen. Orrin G. Hatch (R-Utah) said in a Senate speech last week, "The crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved."

Such claims, however, are at odds with the record of the successful 1968 GOP-led filibuster against President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the United States. "Fortas Debate Opens with a Filibuster," a Page One Washington Post story declared on Sept. 26, 1968. It said, "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."

A New York Times story that day said Fortas's opponents "began a historic filibuster today." As the debate dragged on for four days, news accounts consistently described it as a full-blown filibuster intended to prevent Fortas's confirmation from reaching the floor, where a simple-majority vote would have decided the question. The required number of votes to halt a filibuster then was 67; filibusters can be halted now by 60 of the Senate's 100 members.

The Senate had confirmed Fortas in 1965 as a Supreme Court associate justice. But Johnson's effort to elevate him to chief justice three years later, when Earl Warren announced his plans to vacate the post, ran into stiff opposition from a core of GOP senators and several conservative southern Democrats.

Some current Republican leaders -- citing comments by then-Sen. Robert P. Griffin (R-Mich.), who led the Fortas opposition -- say the 1968 debate was not a true filibuster. But there is little in the record to support that assertion. The Washington Post reported on Oct. 2, 1968: "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." The Congressional Quarterly Almanac reported in 1968: "The effort to block the confirmation by means of a filibuster was without precedent in the history of the Senate." The Senate Web site's account of the episode is headlined "Filibuster Derails Supreme Court Appointment."

Current GOP leaders sometimes amend their comments, saying the Fortas battle is not a precedent for today's filibusters because Fortas faced so much opposition that his confirmation would have failed on a simple yes-no vote. Democrats acknowledge that the nominees they are blocking -- on grounds they are too conservative -- would be confirmed by a simple-majority vote in the Senate, where Republicans hold 55 seats.

"Never before has a minority blocked a judicial nominee that has majority support for an up-or-down vote on the Senate floor," Majority Leader Bill Frist (R-Tenn.) said in a widely reported December speech.

But such assertions are unproven at best, and certainly subject to challenge based on the record. It is impossible to gauge the exact support for Fortas because 12 senators were absent for the "cloture" or "closure" vote, which failed to halt the filibuster. The 45 to 43 vote in favor of ending debate fell far short of the needed two-thirds majority.

Some Fortas backers, including Johnson, said the vote suggested that a slim majority favored him. The disappointed president "feels there is a majority in the Senate in favor of the nomination," his spokesman said shortly after the defeat.

Anecdotal evidence suggests, but does not prove, that a majority of senators may have backed Fortas or been undecided when the debate began. An Associated Press head count found that 35 of the 100 senators "are now committed against voting for closure," the New York Times reported. That suggested that as many as 65 senators conceivably were open to voting on the nomination.

Then-Sen. Howard H. Baker Jr. (R-Tenn.), a Fortas opponent, also hinted that his side felt it lacked a majority. Defending the newly launched filibuster, Baker said: "On any issue the majority at any given moment is not always right."

Frist sometimes speaks of the current judicial impasse in terms that take the Fortas case's complexities into account. "Never before in the history of the Senate has a nominee with clear majority support been denied an up or down vote on the Senate floor because of a filibuster," Frist said Tuesday. Such language puts him on more solid historical footing. The New York Times wrote of the 45 to 43 cloture roll call: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote."

The strongest evidence that anti-Fortas senators were not confident of commanding a majority is the fact that they fought so tenaciously to keep the confirmation from reaching a vote, says Norman J. Ornstein, a congressional scholar who has written extensively on the Fortas matter. Ornstein, of the American Enterprise Institute, said: "This was a filibuster. It was intended to keep the nomination from moving forward for the remainder of that term."

Frist and others who now threaten to ban filibusters of judicial nominees, Ornstein said, "are trying to provoke a change that isn't defensible through history."

Research editor Lucy Shackelford contributed to this report.

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