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Posted by on May 3, 2005 in At TMV | 1 comment

Historian: Republicans Trying To Gloss Over Judicial Filibuster History

History shows the Republicans had no problem using the filibuster when they didn’t like a judicial nominee, Rutgers University historian David Greenberg writes in the Los Angeles 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 But since 1968, six candidates have been rejected or withdrawn, and four others have faced major hostility.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.

He recounts the story about how LBJ in 1968 ran into a political buzzsaw when he nominated Associate Justice Abe Fortas to replaced Chief Justice Ear Warren. Writes Greenberg, who researched the politics of court appointments as a visiting scholar at the American Academy of Arts and Sciences:

But Johnson, having forsworn reelection, was a lame duck, and Republicans saw no reason to confirm Fortas before the November election.

And, he notes, conservative Democrats joined with the GOPers to sink the Fortas nomination. Why?

Fortas’ foes had various justifications for opposing him. Republican Robert Griffin of Michigan attacked the justice as the president’s “crony.” 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. There was anti-Semitism: 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’ critics opposed him on ideological grounds. Sen. Strom Thurmond blasted Fortas’ 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 freed an admitted rapist 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.

In the end, he writes, the Senate Judiciary Committee endorsed Fortas — whose nomination was doomed. And not just do to conservative Democrats:

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 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.

UPDATE: Pejman Yousefzadeh looks at Greenberg’s piece in detailo and says it’s wrong and full of contradictions.