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Special Report
The Fortas Filibuster and the Stevens Seat
Lame duck charge stopped nominee: Commerce Clause, health care as the new law and order?
"A major effort to prevent President Johnson from appointing
a successor to Earl Warren as Chief Justice of the United States
appeared to be shaping up today in the Senate."
-- New York Times
June 22, 1968
Senate Republicans didn't just say no in 1968.
In distinctively senatorial fashion they said "hell no!"
Connecting the issues of "lame ducks" and "law and order" to a pair of Supreme Court nominations -- something unheard of in the up-until-then fairly docile world of Senate judicial confirmations -- the GOP Senate strategy worked.
Changing both the Supreme Court and history itself.
The announcement that liberal Justice John Paul Stevens will retire has launched a wave of expectations that the Stevens opening will automatically pave the way for a second liberal Obama nominee to the Supreme Court to be confirmed this year. For Republicans to put up any kind of a fight over an Obama nominee, warns the New York Times, and they will look like "knee-jerk obstructionists" if they oppose replacing a solid liberal vote with another liberal.
But the fretting of the Times and even some Republicans is wrong. In fact, in a similar situation in 1968 just such a scenario was stopped in its tracks.
The issues then: lame ducks and law and order.
Today, the issues would be health care and the expansion of the Commerce Clause of the Constitution. And lame duck senators voting on a Supreme Court nominee who will try to do from the bench precisely what the American people are overturning at the ballot box.
In June of 1968, liberal Chief Justice Earl Warren, the icon of liberal judicial activists, announced his retirement. President Lyndon B. Johnson, a Democrat, selected longtime Johnson friend and Washington lawyer, the liberal Associate Justice Abe Fortas, to replace Warren. Johnson had already installed Fortas as Associate Justice earlier in his term. The move up for Fortas opened another seat on the Court, for which Johnson nominated longtime liberal Homer Thornberry, a former Texas congressman turned 5th Circuit Court of Appeals judge.
With Democrats having a secure grip on the U.S. Senate, LBJ's liberal masterstroke to preserve and extend the reign of liberals on the Court looked like a sure thing.
But there was a problem.
An election was looming. In this case, the 1968 presidential election and Senate elections as well. By June of that year, it was all but a done deal that the GOP nominee would be former Vice President Richard Nixon, who in turn would face LBJ's Vice President Hubert Humphrey, LBJ having withdrawn from the race in March.
The significance of the election was not lost on GOP senators, who at the time were in the minority by a margin of 63-36 (there was one vacancy following the death of New York's Robert F. Kennedy, soon filled by Republican Governor Nelson Rockefeller's appointment of liberal Republican Charles Goodell). While a simple majority of 51 senators was enough for Johnson, a legendary former Senate Majority Leader himself, to get his Supreme Court nominees confirmed, it also meant that 36 votes was enough to sustain a filibuster. In 1968, 60 votes, the standard today, were not needed to make a filibuster stick.
Yet the psychological barrier of filibustering a Supreme Court nominee was considerable.
About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.
Letter to the Editor View all comments (44) | Leave a comment
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Yosemeti Sam| 4.13.10 @ 7:12AM
So, the Senate coliseum is set.
The gladiators are accoutered - both Leftoids and
Conservatoids.
May the games begin - and pass the popcorn!
Alan Brooks| 4.13.10 @ 9:52AM
Social cons want one of their own as a Supreme, libertarians want one of their own. The GOP? they don't know what they want anymore. A straw poll of Republicans had Ron Paul coming in second to Romney as a possible favorite in '12. Those polls don't mean much-- if anything-- but why would so many otherwise sane Republicans like Paul? He has no more chance than did Buchanan or Keyes.
Tom| 4.13.10 @ 9:08PM
Let's not forget what did in Fortas's nomination. He was a big supporter of "civil rights" (aka LBJ's racist anti-white policies that tried to force Americans to do things they didn't want to). I hope Obama takes that as a warning.
Siegfried X| 4.13.10 @ 7:50AM
"Republican" Orrin Hatch has already said that Republicans will roll over and quickly confirm whomever Obama nominates. Hatch said that yesterday while talking about what a great Supreme Court justice Hillary Clinton would make.
SchanuChef| 4.13.10 @ 5:38PM
The observation of Siegfried X is a perfect illustration of the sort of lame values-eunuch that is just plain disgusting. The only thing more vapid than the Republican party are the hacks (and hack staffers) who call themselves republicans.
George S| 4.13.10 @ 9:21AM
Are some issues more important than the Constitution? That is a liberal's favorite go-to argument; and now we are doing it. We have learned from conservative thinkers that filibustering a SCOTUS nominee is unconstitutional because of two reasons: one, is that the Constitution specifically enumerates where super majorities are required (and confirmation of nominees is not one of them), and, the Senate has a constitutional responsibility to staff the courts. If Obama's Stevens replacement nominee is filibustered, the Court stays 4-4. Lets assume Ginberg retires and Democrats retain control of the Senate. Stab the table and yell 'filibuster!'. Suppose shortly thereafter Scalia has to retire. Would we ever allow a possible non-citizen to appoint the replacement of the most venerated originalist Justice to sit on the bench? The point is that the Senate could keep rejecting, by filibuster, every nominee a president sends their way and then the Democrats can turn around and do the same to a Republican president. Where will it end? Theoretically, it could lead to the dissolution of the Court by filibuster, sort of like leaving a dying man where he lies rather than call for help. Certainly, the constitutionality of the process could be challenged.
Especially on the grounds that the filibuster is a parliamentary tool and not something proscribed by law. What is required are the "Necessary and Proper" duties of the Congress in service of the Constitution. Extenuating circumstances -- lame ducks, unpopular legislation -- does not excuse the Constitution from being the supreme law of the land. While I would like to see a filibuster, I will understand, and grudgingly agree, with efforts by Democrats to kill the filibuster for confirming executive nominees.
(There's a hint somewhere in this post on why a filibuster is constitutional in this particular case)
Len| 4.13.10 @ 9:30PM
George the US constitution is a dead instrument, so why not use parliamentary procedures in an effort to obstruct justices who only continue to use it something to wipe one's butt? We lie when we act as if the US constitution has anything to do with the vast majority of legislation, actions and agencies of the federal government. So I say end the charade and use whatever means necessary to bring liberty to the land.
As a side note, I would say there is actually only one true conservative current justice and that is Thomas(not that he's perfect). The rest of the so called conservatives are more those who support the republican form of big government.
Ken (Old Texican)| 4.13.10 @ 10:58AM
I THINK I read somewhere,
That a supreme candidate has to have a unanimous vote to come out of committee...or at least ONE minority party vote.
Does anyone here have the true "skinny" on that?
Cris Worth| 4.13.10 @ 11:02AM
The article forgot to mention Fortas was a scandal ridden associate justice forced to resign in 1969 "to protect the reputation of the Court and avoid lengthy impeachment proceedings". Also one of the great ironies in American history..."conservative" Nixon appointed Blackmun to replace Fortas. Blackmun wrote the majority opinion for Roe v. Wade in 1973. Nixon also appointed Warren Burger chief justice replacing Earl Warren and Burger voted for Roe v. Wade. Republicans are so amusing.
ds80| 4.13.10 @ 12:30PM
"Republicans are so amusing."
Yes. Which is why we need conservatives in office.
BJ Malone| 4.13.10 @ 12:48PM
CONSTITUTIONAL Conservatives!
Purpleguy| 4.13.10 @ 8:33PM
There is no such animal ...
Deep Despond| 4.13.10 @ 3:45PM
Since the Constitution contains no qualifications for a person to sit on the Supreme Court, Obama is free to choose Oprah Winfrey if he is crazy enough. He "owes" her and he is crazy enough for anything, as he has demonstrated. Her show is tanking. What better way to return a favor? She can wear a flowing black robe and forget about her weight problem.
"Generally the choice has been a lawyer, a judge or someone trained in law..." I read that somewhere. "Practical considerations have been...." Well, we can discount anything practical.
Think about it. Obama wants someone who will vote, keeping in mind how it is going to affect the people and how they will feel about the ruling..."
Nowhere does this buffoon say he wants someone who really knows the law and will apply it impartially.
Purpleguy| 4.13.10 @ 8:37PM
You mean like the oh so perfect Constitutionalists that just decided a Corporation has free speech rights, as if they were a person? Now that's activism in my book - legislating from the bench. And, they had to stretch to even get the case for them to decide the broad and sweeping decision, reversing over a hundred years of precedence. Give me a Justice that cares about the people and how the laws affect society, not just the corporations.
Nick| 4.13.10 @ 8:51PM
Pay no attention to PurpleJackass folks.
He doesn't even know that Virginia governors don't run for re-election because they can only serve one term, then have to wait 4 years to run again.
He also likes to berate others for spelling "hypocrisy" wrong, and in the same post he wrote "hypocrit", like a moron.
He is not worthy of debate with grown-ups.
Purpleguy| 4.13.10 @ 9:03PM
Well, how clever, you learned how to copy/paste... LIMPNICK
Nick| 4.13.10 @ 11:15PM
It must hurt deeply to be embarrassed on a public forum like TAS, huh?
I wouldn't know myself.
Len| 4.13.10 @ 8:59PM
Congress can no laws concerning speech period. They may only act on delegated powers and as such all other powers belong to the states.
Congress can make no laws concerning corporations because such power was specifically considered and rejected at the federal convention.
One hundred years of precedence are meaningless if in violation of the US constitution. The basis for law at the federal level is delegated powers, not judicial rulings.
Come on back when you have a coherent argument based on the US constitution.
FL.JD| 4.13.10 @ 10:31PM
Hon, if I were you, I would go back and read Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) and Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886). Corporations have been persons under the law (a legal fiction) since 1819 and have 14th Amendment rights for 124 years. But, hey! Don't let the long line a jurisprudence get in the way of your asinine comments.
FL.JD| 4.13.10 @ 10:38PM
Hon, if I were you, I would go back and read Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) and Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886). Corporations have been persons under the law (a legal fiction) since 1819 and have had 14th Amendment rights for 124 years. But, hey! Don't let the long line a jurisprudence get in the way of your asinine comments.
By the way, CU v. FEC did not overturn a century of precedent nor does it allow direct contributions to campaigns by corporations nor does it allow foreign contributions...like those in the West Bank that donated to your hero's campaign.
JmsA| 4.14.10 @ 3:42AM
If one doesn't care for or simply doesn't understand the First Amendment’s most basic free speech principle (which he continually abuses herein with his nonsensical parroting of political talking points): the government has no business regulating political speech, then one waxes ignorant as purpleguy does in this instance. I just guess he has very conveniently forgotten that the recent decision by the Supreme Court regarding campaign finance preserves the labor unions' similar right to politically participate--though he fails to assail it as does corporations--no doubt because he agrees with their politics, while excepting corporations such as MSNBC, CNN, ABC, CBS, NBC, NY Times, Washington Post, most of academia, etc., etc., which don't need to air political ads, as they are now not more than the propaganda arm of the democrat party. He goes on further to excoriate those members of the court, immensely qualified to make such decisions by parroting the One's hyperbolic and utterly erroneous: "[R]eversing over a hundred years of precedence" nonsense during the SOTUS. That coming from a supposed Constitutional Law Professor. From where, Stalinist Russia? Well, I just hate to tell you, Mr. purpleguy, unabridged Freedom of Speech has had much longer precedence that nonsensical political diatribes, not to mention "moderate" McCain's and liberal Feingold's attempt to tear it asunder. And if you don't believe me, just check the U.S. Constitution. You might be suprised what you find there, not least of which your right to continously spew and bore us with your nonsense. Once again, in case you've fogotten, re-read, rethink, and revise. Thank you. 11/02/2010
Oldefarte| 4.13.10 @ 3:48PM
Great editorial, Jeffrey! Johnson was a traitor to his Texas/southern heretage, especially concerning his GREAT SOCIETY bullexcrement [of which taxpayers are still paying for their outlandish federal programs costs/expenses]. That is precisely why Johnson is a forgotten President 9in addition to his and McNamara's enslaving young 20 year olds to death from having one hand tied behind their backs in a war that could have easily been won using our available military hardware]. Johnson used his political skills to ram through congress the liberal governmental policies that Kennedy ineptly failed to do, and again, the American taxpayers are still paying the tax-price for!!!!!!!!!!!!!!!!!!!!!!
Purpleguy| 4.13.10 @ 9:05PM
whaaa, whaaa, I have to pay taxes ... you are responsible to pay your taxes. Do your part and stop complaining.
Len| 4.13.10 @ 9:17PM
Constitutionally the only taxes the vast majority of Americans could be said to be responsible for paying are direct taxes based on apportionment as it says in article 1, section 2. These taxes would then have to be for one of the enumerated powers constituting either common defense or the general welfare of the STATES (not the people), otherwise any such tax is without authority.
Taxes on income are indirect taxes as they tax that which comes from property, not the person, not that which the person earns, not even the property the person owns (despite a wrong ruling by SCOTUS on this [carriage tax]), but only that which is earned from property.
FL.JD| 4.14.10 @ 5:16PM
Are the 47% of Americans, who do not pay Federal INCOME taxes, not doing "their part"? Are they, in Biden's view, "unpatriotic"? Why don't they put some "skin in the game"?
Deep Despond| 4.13.10 @ 4:16PM
In response to AgedGaseousEmission above - "having one hand tied behind their backs. . .". Aren't you describing current Rules of Engagement? They would all be pushing up daisy cutters over there, if we had the guts to not worry about fairness and good name.
Two birds with one stone, a few well placed daisy cutters would plow up those opium fields!
Boise Brian| 4.13.10 @ 4:56PM
Hilary Clinton is my guess for the nominee, with Bubba going to Sec. of State to groom him for next UN Secretary General.
Purpleguy| 4.14.10 @ 12:43PM
Actually, Oprah Winfrey would be a splendid candidate. The fact that she isn't a lawyer should have nothing to do with her qualifications to be on the court . She is sensitive and it's time we started replacing sensitivity with out-dated laws!
FL.JD| 4.14.10 @ 5:18PM
If laws are "outdated", then who's fault is that? If the Constitution is "outdated," then AMEND it. Otherwise, S.T.F.U.
Norman Conquest| 4.14.10 @ 12:47PM
Hillary will not accept a nomination to the court. She, and her equally Machiavellian partner, Bill, are waiting for the purple-lipped poser to be marginalized after this November's election after which they will launch their campaign to challenge 'ol Purple Lips for the Democrat nomination for president in 2010.
Deep Despond| 4.14.10 @ 4:57PM
Could somebody turn purpleboy rightside up? He wants to replace sensitivity with out-dated laws. That's what he said. Read it.
Out-dated laws - OK. Which are out-dated? Who gets to decide?. Why don't we just make everything legal, then we wouldn't have any crime. We are on our way to that right now - in California we are letting criminals out of jail because of over-crowding.
People, people who need sensitive people are the neediest people in the worrrllld.
Norman Conquest| 4.15.10 @ 12:22PM
Methinks someone is parodying Purpleguy. If not, if these inane rantings really are the work of Purpleguy, then he urgently needs a saliva test.
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