From http://www.freedomworks.org/informed/issues_template.php?issue_id=1441
The Congressional Record for Oct. 1, 1968, shows that 45 senators voted for cloture, 43 voted against. However, if the senators who did not vote are taken into account, we find that 48 were on record as opposing cloture, 47 as favoring it. Indeed, at least one of the senators who voted for cloture, Republican John Sherman Cooper of Kentucky, said that he would vote against the Fortas nomination if it came to a vote. Another who voted for cloture proposed immediately after the vote that the president withdraw the nomination and submit a name that could be quickly confirmed. This evidence alone shows that of the 47 on record for cloture, at least one, if not more, was actually opposed to the Fortas nomination.
Perhaps that is the reason why Justice Fortas decided to ask that his nomination be withdrawn, and why President Johnson promptly complied on Oct. 4. The point is, at least 49 senators -- a majority of the 95 senators whose positions were identified in the Congressional Record -- either opposed allowing a confirmation vote or opposed confirmation on the merits. This evidence -- which suggests that, if anything, Justice Fortas might have had a majority opposed to his confirmation -- casts doubt on the likelihood that a committed plurality of 50 senators (who, with Vice President Humphrey, would have constituted a majority) would have voted for Justice Fortas's confirmation had the filibuster not prevented it.
By contrast, Mr. Estrada and Ms. Owen would win a confirmation vote today if the Democrats allowed them one. Even assuming that the Fortas filibuster was legitimate, it is not a precedent for Mr. Estrada's case or for others where a declared majority of senators favors confirmation of the nominee, and where the nominee reacts to the filibuster not by throwing in the towel but by standing his ground.
Besides, four days of debate on a nomination for chief justice is hardly a filibuster, as the closing remarks of then-Sen. Robert P. Griffin, who led the opposition against Fortas, make clear: "When is a filibuster, Mr. President? . . There have been no dilatory quorum calls or other dilatory tactics employed. The speakers who have taken the floor have addressed themselves to the subject before the Senate, and a most interesting and useful discussion has been recorded in the Congressional Record:
"Those who are considering invocation of cloture at this early stage on such a controversial, complex matter should keep in mind that Senate debate last year on the investment tax credit bill lasted 5 weeks; that the Senate debated the Congressional reorganization bill for 6 weeks; and that we spent 3 weeks earlier this year on the crime bill."
The Fortas episode is different from the current situation for other reasons. The Fortas filibuster lasted a little over a week. It slowed down the deliberative process, but it did not bring it to a halt. Just over three months in all elapsed between the date of nomination and Justice Fortas's decision to step aside as nominee for chief justice. By comparison, the floor debate on Mr. Estrada's nomination has been going on for well over three months; and the nomination itself has been pending before the Senate for over two years. Whatever else the Fortas episode stands for, it does not provide senators with precedent for a delay of this duration.
I was being kind to the NYT.