Monday, April 25, 2005

Judicial filibusters

I've written a lot about the filibuster of judicial nominations. You haven't read much of it because I haven't posted them yet. Sorry, but I'm not happy with the framework of what has become rather in-depth arguments and I don't have sufficient references in what is primarily, to me, a philosophical argument. That is my fault -- the tendency to provide an airtight case, bulletproof, if you will -- when I get really serious.

So I think I will just note some things I've noticed in the widespread discussion. Before I do, I want to start with some historical data vis-a-vis Abe Fortas because I do think some perspective is needed in assessing the filibuster option and Fortas is used widely as a benchmark for the argument, at least by Democrats. A lot of this data are what I have had to pull from at least two dozen sources -- few sources perceive what is worth highlighting as being of the same import. Some of this may have embedded opinion but I have confirmed these from, at least, one other source. I apologise ahead of time for not linking to everything I've presented.

First, some detail I've culled of Abe Fortas' life:

- Abe Fortas practiced law in DC from 1947 to 1965; taking appointments as defense council was a good portion of his business interest. He was appointed in 1963 by SCOTUS to represent Gideon in Gideon v. Wainright. Fortas prevailed in what is considered a landmark decision.

- Johnson had Fortas manage the legal team representing him in '48 when Johnson's 84 vote Democratic Primary victory was challenged. Johnson won.

- Abe Fortas played (pg 14 of pdf) a substantial part in drafting Kennedy's first Fair Employment Practices Executive Order. Fortas and Johnson met with Kennedy to discuss the bill.

- In May '65, Abe Fortas assisted Johnson in resolving the Dominican Crisis, including presence in the Situation Room on May 19 and 20 (note the other dudes there) and taking (pg 24 of pdf)a secret trip to Puerto Rico for meetings.

- In July 1965, Johnson convinced SCJ Arthur Goldberg to take the position of UN Ambassador to replace Adlai Stevenson, who died suddenly on 14 July of a heart attack. Goldberg resigned from SCOTUS on 25 July and was confirmed to that position around July 26.

- Johnson nominated Abe Fortas on July 28, 1965 as Goldberg's replacement. According to Fortas, he was told he was nominated on the way to the press announcement. He was confirmed on August 11 by voice vote. (There is one source noting there were a few nays against Fortas at the time. Pg. 8, footnote 44)

- Senate makeup in '66 was 67 D and 33 R; (I've no evidence of change before the '68 election.)

- In '68, Senate rules required 67 votes to break a filibuster (votes for cloture.)

- On March 31(?), '68, Johnson told the nation he would not run for re-election.

- On June (?), CJ Warren, announced his retirement upon appointment of a new CJ.

- On June 26, Johnson nominated Abe Fortas.

- In July, Fortas erred, appearing before the Senate Judiciary Committee despite the fact that no sitting Justice had ever done so. Senate recessed for the summer shortly thereafter.

- Mid-Sept. Fortas' nomination was reported out of committee on 11 - 6 vote.
Sept. 24, Senate took up the nomination

- On Oct. 1, Senate voted to close debate which lot on a 45 (10R,35D) - 43 vote (24R,19D)

- On Oct. 3, Fortas asked that his name be withdrawn, on Oct. 4 Johnson complied.

- In November, Richard Nixon won the presidential election and subsequently nominated Warren Burger as CJ for which Burger was confirmed. Nixon's next two appointments were turned down by regular vote of the Senate -- Clement Haynsworth Jr., who had questionable financial improprieties similar to Fortas's and was ultimately rejected 55:45; the second was G. Harold Carswell, who was widely considered unqualified and was rejected 51:45.

- "In 1969, Life magazine revealed that Fortas had accepted and then returned a fee of $20,000 [Ed. - in January 1966 but returned it in December of that year] from a charitable foundation controlled by the family of an indicted stock manipulator. Fortas resigned from the bench on May 14, 1969 but denied any wrongdoing."

In going through all these sources, what appears to be the sources of the Abe Fortas' CJ nomination kerfuffle, was that Johnson had decided not to run and, by July, it was looking like Nixon was going to win in November. One writer noted that Warren's announcment to retire was for the purpose of giving Johnson the choice of CJ and another AJ. The first complaint of Republicans was that with Johnson being a lame duck and close to the end of his term, the choice ought to go to the next president. In addition to that, it was generally known (believed?) but not significantly public knowledge that Fortas was often involved in advising Johnson on both public policy and SC deliberations while an associate justice, and also pressuring Senators opposed to the Vietnam War, on behalf of the President.. In addition, Fortas had taken lecture fees of $15,000 while a justice. This came out during the summer recess and conflicted with his nomination testimony, hence that is why I left the one notation in the data, above, that Fortas "erred" in testifying. Again, that had never been done before.

Other eddies in the flow of the review process. Johnson knew the process would have to be quick or Fortas would lose. He thought Richard Russell and Everett Dirkson would support the nomination. Indications are that that was right but that Johnson lost Russell because Johnson delayed a nomination on a Georgia appointee Russell was pushing and lost Dirkson because of the lecture fee flap. I saw one source note that Nixon publicly stated that Fortas ought to receive an up or down vote. Robert Griffin was the point man for the opposition. In his defense of his actions, specifically the filibuster, Griffin noted that the debate had only gone on for 5 days whereas other contentious legislation had debates of 5 and 6 weeks; all debate had been on topic; and that none of the usual procedural gimmicks associated with maintaining a filibuster had even been used before the vote.

To note again from the data, above, the cloture vote was nowhere near a party line vote. It was also joining of several factions, at least as far as the opposition was concerned. Of course there was Thurmond, Hollings, and maybe Russell from the south in the opposition and maybe their concern was for the direction the SC was headed regarding civil rights, law and order, etc. But this faction also included Republicans thinking it's the next (Republican) president's choice, and those who were concerned about the improprieties of Fortas' conduct while a justice.

One of the lesser stories of the Abe Fortas nomination, which, even in my search, I did not find except in ambiguous dribs and drabs, was the extent to which rules and policies for the conduct of sitting judges changed subsequent to this nomination battle and then, a year later, his resignation as associate justice.

Finally, just an observation by me. The workings of politics then and now seem much different. The Fortas nomination filibuster appears to have been more of stalling tactic in an effort get information to the public so that a coalition could be built which would ultimately defeat the nomination. This nomination process was definitely hurried even though those looking superficially might see it as a June to October timeframe while possibly forgetting the summer recess. To really study what I think might have been not so much a filibuster as an exercise in information dissemination, swaying public opinion and development of a wider faction for a rejection of the nomination, I'd really like to see how it was portrayed on the news by the three national television broadcasters and in the major newspapers at the time which, it could be said, were pretty much the only sources for knowing what was going on in Washington, not to mention how it should be understood by the masses. Certainly, getting information out now by the various sides in a political argument regarding legislation and nominations just isn't quite the same.

Actually, what I find amazing that the Senate was even debating a nominee for chief justice just one month before a presidential election in which the sitting president wasn't in the running and the current sitting justice was content to stay until a new chief justice was chosen. But that was then and I really shouldn't stock what happened 40 years ago into my 'amazing' boat of today.

I'll see what I can do about posting more tomorrow.

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