Democrats Flub History Lesson on Filibusters

By Jeff Johnson | July 7, 2008 | 8:31 PM EDT

( - In their current effort to thwart President Bush's judicial nominations, Democrats often refer to a 1968 case to try to show that Republicans previously used the filibuster as a partisan tool to block a president's wishes.

But while the Democrats' filibuster against the Bush nominees is unmistakably partisan, as evidenced by cloture votes, records obtained by Cybercast News Service show that the effort waged against President Lyndon Johnson's 1968 nomination was anything but partisan.

Supreme Court Justice Abe Fortas, whom Johnson had nominated to be chief justice, was blocked by nearly as many Democrats as Republicans. Members of both parties had reservations about Fortas' allegedly unethical conduct.

In 2005, Sen. Richard Durbin (D-Ill.) has been one of the chief Senate proponents of the claim that blocking a president's judicial nominees through the use of the filibuster is not "unprecedented" as Republicans claim.

"On 12 different occasions, beginning in 1881, filibusters have been used to stop judicial nominations," Durbin claimed on the Senate floor on April 27.

"In 1881, it was Stanley Matthews to be a Supreme Court justice; 1968, Abe Fortas to be chief justice of the Supreme Court was subjected to a filibuster; right on down through the Clinton administration," Durbin continued. "So for the Republican side of the aisle to consistently state what history tells us is not true is unfortunate."

On April 15, Durbin entered into the Senate record a document entitled "History of Filibusters and Judges," a list of 12 nominees allegedly blocked from a floor vote by Republicans, which included Fortas' name. But Sen. Orrin Hatch (R-Utah), the former chairman of the Senate Judiciary Committee, objected.

"Abe Fortas is on the list even though his nomination was withdrawn after a failed cloture vote showed he did not have majority support and the opposition was solidly bipartisan, almost as many Democrats as there were Republicans," Hatch explained. "It was not an all-Democrat filibuster such as these have been."

Documents provided to Cybercast News Service by the Senate Historian support Hatch's claim. Senate Vote Record No. 254 shows that 19 Democrats joined 24 Republicans on October 1, 1968, in opposing the cloture motion that would have ended debate on Fortas' nomination and allowed a confirmation vote.

The 1968 Congressional Quarterly Almanac explained that some senators complained about Fortas' allegedly liberal rulings on issues such as pornography and the treatment of criminal defendants. But "more serious issues developed during hearings held by the Senate Judiciary Committee between July 11 and September 16 (1968)," the publication reported.

Among those issues "was the disclosure that Fortas had received a fee of $15,000 for giving a nine-week seminar on law at American University during the summer of 1968," CQ Almanac reported. "The money had been raised by (Fortas') former law partner from among five former business associates, one of whom had a son involved in a federal criminal case."

Several senators, both Republicans and Democrats, addressed the allegations before voting not to end debate on Fortas' nomination. The tally was 45 senators for ending debate, 43 against and 11 not voting.

On Oct. 2, Fortas wrote Johnson requesting that, "to avoid further attacks on the Court the nomination be withdrawn." Calling the Senate's bipartisan filibuster of his embattled nominee, "tragic," Johnson withdrew the Fortas nomination on Oct. 4.

Hatch argued that there is no comparison between the strategy Democrats are currently using to prevent the majority of senators from confirming some of President Bush's appellate court nominees and the alleged filibuster of the Fortas nomination.

"But even if there were, and even if you could stretch it and say there were, it was a bipartisan filibuster, if you could use the term filibuster, with almost as many Democrats as Republicans voting against Fortas," Hatch said. "None of these situations bears any resemblance to the filibuster of majority-supported judicial nominations underway today."

Senate Majority Leader Bill Frist (R-Tenn.) is expected to call for a vote on the motion to invoke cloture on the nomination of Texas Supreme Court Justice Priscilla Owen to the Fifth U.S. Circuit Court of Appeals Tuesday.

Democrats would need only 41 votes to block the cloture motion. Frist could then call for a rules change, which would require only 51 senators to pass it. The current make-up of the Senate is 55 Republicans, 44 Democrats and one Independent -- Vermont Sen. Jim Jeffords. Even if five so-called "moderate" Republican senators decide to vote with the Democrats and Jeffords, Vice President Dick Cheney, in his role as president of the Senate, could cast the tie-breaking vote, ending the practice of filibustering to block judicial nomination votes.

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