Pirates of the Potomac (History of judicial filibusters)

If you've ever wondered, the word "filibuster" originally meant "pirate." That is to say, senators once viewed the process of talking a bill to death as "piracy" of the will of the majority. But to today's Democrats, the concept of judicial filibusters is a "time-honored tradition." Not exactly.

Any excursion into filibuster history should begin with the Constitution. In Article 2, Section 2, the Framers make it clear that they understood the concept of what we now call a "supermajority" – by setting up a two-thirds majority vote to approve treaties. But when it comes to the president's power to appoint judges of the Supreme Court, only the advice and consent of the Senate is required. By applying the supermajority standard to some procedures and not to others, the Framers made their intentions quite clear.

Fast forward to today's big controversy in which President Bush's judicial appointees are being painted by the minority as right-wing extremists. It's quite a stretch to think that political ideology could be the main factor in dooming a nomination – but the Framers surely considered that. Even so, they included nothing in the Constitution that would thwart the will of the majority.

But what about a case in which a president nominates someone who is clearly unfit for the job? Would a filibuster be appropriate in such a situation?

We have only to look back at the waning days of the Lyndon B. Johnson administration. President Johnson had three things on his mind. One, he was not going to run again. Two, Chief Justice Earl Warren had informed him that he was going to retire. Three, Richard Nixon stood a good chance of being elected president. Johnson did not like the idea of Nixon being able to appoint the next chief justice.

So Johnson moved ahead with a very controversial appointment, naming Associate Justice Abe Fortas to the post of chief justice. So here's your historical test case. Johnson had appointed someone who was clearly not fit for the job. Remember, this was the pre-Bork days of 1968 and though Fortas was a liberal, that didn't disqualify him. Here's what did:

As outlined in Mark Levin's book "Men In Black," Fortas had remained an adviser to Johnson even after his appointment to the Court in 1965. In those days, a justice was paid $39,500 but Fortas was able to bring in extra cash through a foundation set up by a convicted "stock swindler." This fee amounted to $20,000 a year, for which Fortas was required to attend a single annual meeting.

According to Levin's book, "Two weeks after the first check was sent, Fortas was writing the White House to boost two of [jailed financier Louis] Wolfson's companies – both of which were under federal investigation at the time."

Pretty shady stuff. But that's not all. Fortas testified during his hearings, and it became public knowledge, that he had regularly attended White House staff meetings and had briefed the president on secret Court deliberations.

So, yes, there WAS a four-day filibuster, brought on by the floor debate, but it was bipartisan in nature. Like Republicans, many Democrats knew that Fortas could not be allowed to serve as chief justice. According to Senate minutes, twenty-four Republicans and nineteen Democrats voted against cloture, or shutting off the debate.

So, would Fortas have been denied on an up-or-down vote? Many historians think not, but Fortas, possibly worried about impeachment, resigned his post.

Writing in the Washington Post, Charles Babington cites historical data and "period" quotes to cast doubt on the assumption that Fortas would have failed an up-or-down vote and that today's filibuster threat is unique. In his article, he writes, "... such claims are at odds with the record of the successful 1968 GOP-led filibuster against ... Fortas." He points out that a Page One Post story declared, "A full-dress Republican-led filibuster broke out in the Senate against a motion to call up the nomination of Justice Abe Fortas for Chief Justice."

Not that we'd ever think for a moment that the Washington Post might have put a liberal spin on stories even back in '68 – but call us skeptical. With Johnson withdrawing the nomination and Fortas resigning, would Mr. Babington please explain just how Fortas could have won approval?

Fortas may be the one example that papers like the Post and leftist pundits like Molly Ivins can come up with to say that Republicans have used the judicial filibuster. But we think that Fortas is a much better example of what the Framers had in mind with their language about "advice and consent." Sure enough, there was a filibuster in 1968 – with many Democrats participating in the rejection of a corrupt nominee.

These modern Pirates of the Potomac oppose President Bush's highly qualified nominees on mere grounds of ideology. But Fortas wasn't rejected on ideological terms, and that standard should apply to current nominees as well. If some legitimate reason to reject them should arise, the Constitution provides the means for senators of both parties to withdraw their consent.

Exactly right!

I know it's annoying when people use silly things like facts, but indulge me....

Since the founding of our Republic, 20% of Supreme Court nominees have been rejected, many without facing a full vote. The Republicans have used the tactic as often as Democrats, most recently to block Clinton-era nominees. And President Bush has enjoyed a success rate of over 95% in getting nominees approved. That's higher than Clinton, Bush I and Reagan.

First of all, appellate court nominees are the relevant judgeships here. Mixing the lower court in with them is twisting the facts. Second of all and most importantly, other judges that did not get approved, did not get out of the justice commitee. The majority in the senate has the most votes on the commitee and therefore can bottle up nominations. Clintons nominees that did not get a vote, were rejected in commitee, by the majority of the people on that commitee. What is going on here is totally different. These folks are all approved by the commitee and than are not getting a vote on the floor because of the Democratic party misrepresenting the advise and consent clause of the constitution. So, you seee the %, or number of nominees approved is irrelavent to the discussion we are having here. Please brush up on your facts before participating. I know it is annoying when silly folks insist on what is said actually be relevant to the discussion, but hey...I'm a stickler...

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