Wednesday, May 04, 2005

David Greenberg's Fortas History

Pejmanesque takes David Greenberg to task for his one-sided, otherwise known as half-assed, arguments regarding the filibuster vis-a-via Abe Fortas. He excerpts primarily a Senate website on Abe Fortas and it makes Greenberg look really bad.

But it is worse, as my post from earlier indicates. Let me concentrate on the reasons, as Greenberg does, this time but first I'll reiterate more on the cloture vote -- it was 45 (10R,35D) for and 43 (24R,19D) against for cloture. Head counts by several sources (here's one that was eaiest to find among my bookmarks), based on known persuasions/public utterances of those Senators not present, indicate a more complete vote would have been against cloture 48 to 47. (I have seen a research paper noting 49-47 but cannot find the bookmark.) Also, keep in mind that, at the time, there were 67 Democrats and 33 Republicans in the Senate and cloture required 67 votes. (I'd found after my earlier post it was Senator Byrd in 1975 via his deft use of the nuclear option all available parliamentary rules and a mere majority vote to get votes required for cloture changed to 60.)

Regarding the ethical issues, it is interesting that Abe Fortas was the first, (and only?) sitting justice to testify in connection with a chief justice nomination. The website I noted in my post a while ago states he erred in this. It isn't specific but implies it has to do with lying (spinning?) regarding the lecture fees (40% of his salary) and though it wasn't known at the time Fortas testified, information about the fees was uncovered during summer recess. But why was it that Abe Fortas testified? I know he liked to set precedents but this seems ridiculous and Abe Fortas had more political smarts than to set this one. I haven't found much addressing this subject so let me do a short analysis. There was really no reason to ask him to do it on judicial issues, his record and positions were widely known, lawyer in DC for years, defended civil rights cases in front of the SC and lower venues, an associate justice during the 3 prior years so having a hand in deciding many cases. But there were several ethical issues and ones during his tenure would be worthy of pressuring him to testify. And Abe Fortas was just the kind of guy to think he could do it. As I said, I don't know what promoted Fortas to testify, but of the issues surrounding his nomination that I've seen, this is the only plausible enough for Fortas to break precedent.

And there were ethical charges to consider. In addition to the ones noted in the Pejmanesque post, there were charges that Fortas also counseled Johnson on Civil Rights legislation, as well as pressuring Senators opposed to the Vietnam War. (And looking at Fortas' past, it's not surprising he had that itch to be involved. In addition to his civil rights passion in the courtroom, he played a substantial part in writing the Fair Employment Practices Executive Order for Kennedy in '64 and was extensively involved with Johnson during the Dominican Crisis just before being nominated for AJ in '65.)

So contrary to the moonbat principle of seeing only one reason for anything, there were ideological objections AND ethical objections. But wait, there were other issues in the
Mix, too. Johnson was a lame duck, it was the end of his term, and it looked like Nixon would win the election in four months. Before Fortas was even nominated, Republicans were arguing that the next president should make the choice. Warren, after all said he would sit until a replacement was found. (I'd be interested to hear from legal beagles on SCOTUS schedule as it relates to Warren sitting until, say early March '69 -- would the Court have done much in that time?) There was some suggestion that Warren decided to retire at the time just to deprive Nixon of (give Johnson) that chance. That adds political protocols to the mix.

A last item was Johnson's choice to fill Fortas's position -- Homer Thornberry. Thornberry, from Texas, was not, from all I could find, a winner and many felt he could also be easily stopped by turning down Fortas. So add another large dose of defeating cronyism and opportunism to the list.

So, let's review. Ideology, political protocols, ethics, cronyism, opportunism and, whoops, I forgot, a rush to confirm -- in session Senate consideration was what, 2 months? There was enough there for just about everyone to have a reason to vote his nomination down. All it required was the building of a coalition, a coalescing of factions, best built by knock down, drag out debate. As Senator Griffin noted, the debate had hardly gotten started.

The more I read about Fortas, the more it appears the filibuster was a cover to give Fortas a chance to withdraw with reputation and status intact. I never got around to seeing if there has ever been an associate justice nominated for chief justice and turned down. I would think that would be an embarrassment worthy of retiring whereas a face saving bow out before the vote wouldn't.

In any event, Fortas went and screwed that up by, three months later, taking the first $20,000 check of a planned lifetime annual payment from the family of an indicted stock manipulator. Seven months later he resigned from the SC.

IMHO, using the Fortas analogy to support the filibuster of Bush's nominees doesn't pass the smell test and David Greenberg's article reeks of sloppy investigation to make an equally sloppy argument.

Update: I goofed on the cloture vote noted above. I struck the against and put in "for", above to correct this.

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