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The Fortas Filibuster and Janice Rogers Brown

One of the factual questions behind the debate on the Nuclear Option is whether a filibuster of a judicial nominee is unprecedented. Republicans (at the moment) argue that it is; Democrats have several examples to show that it is not, the most notable being the filibuster of Justice Abe Fortas's nomination to be chief justice in 1968. David Greenberg explains the Fortas case in today's LA Times.

There are several rebuttals to the Fortas example, most of them along the lines of, he was just a really, really bad guy. (A real cheapening of a brilliant career that came to a pathetic end.) But the most damning rebuttal is that Fortas, in fact, quite probably did not have the support of a majority. So, Republicans say, even though a filibuster was organized against him and Fortas' opponents defeated a cloture vote, they didn't really have to and had it gone to a vote, Fortas would likely have been defeated. So it doesn't really count as a filibuster, because a minority was not blocking the clear will of a majority.

And that's a good point. In fact, it's such a good point that it bears looking at in relation to the current nominees. I've been reading a lot about Judge Janice Rogers Brown, for example. This article by Stuart Taylor in National Journal is pretty much the main thing you have to read. Stuart Taylor is no liberal, no partisan, so when he asks, "Does Bush really support this nominee?" it's a question worth taking seriously.

To understand Taylor's point that Brown's "radical-libertarian judicial activism" belongs on "the right fringe of the legal-political spectrum," you might read all or part of Brown's speech to the Institute for Justice in 2000. The really crazy stuff, such as her reference to "the Revolutions of 1917 and 1937," starts around page 10. (In case you're not familiar, that would be the morally equivalent October Revolution and the decisions upholding Social Security, minimum wage and the National Labor Relations Act -- "our own socialist revolution.") She describes how she changed her mind about judicial activism, deciding that conservatives who fear judicial activism "have been fixated on the structure's gingerbread trim when we should have been focused on the foundations." The "foundations" of the trend toward "slavery" being legislative decisions by majorities that she would overturn based on "natural rights." Note that her vision of "natural rights" seems to have no moral content but consists exclusively of absolute rights to property in all respects, including, it would seem, a right to be free from all taxes. There is some debate about the degree to which her judicial opinions reflect these views, but who cares: this speech is a personal manifesto, it's a very specific statement of how her judicial philosophy -- not her personal beliefs or her political ideology -- evolved, and there is no reason that the debate about this nominee should not be a debate about that manifesto.

I suspect that if there is extended, open, high-profile debate about this nominee and her manifesto, at the end of the day, just as with Fortas, there might not be 50 votes to endorse these views. I think this might be a case much like the one I described in the post about my own work on a filibuster as a Senate staffer, where the heightened scrutiny of filibuster makes some Senators think twice, and in the end it turns out that the Senators filibustering are not in fact projecting a minority, but a majority.

But it can't happen without the right of unlimited debate. With limited debate, even if it's 100 hours, it's a rubber stamp. The media would assume it's a done deal, the Senators would assume it's a done deal, Barbara Boxer and Russ Feingold would consume a few hours of floor time talking about Brown's views while the other Senators went off to fundraisers, and then they would give up and let it go to a vote. It's exactly what happens on the budget reconciliation bills, where time is limited and filibuster prohibited. The vote coming out is exactly the same as the vote going in.

But the filibuster changes things, especially if the Republicans force a real filibuster and not the old tactic of taking a test vote and pulling the bill/nomination if it doesn't get 60. A filibuster on Brown, or the similarly disturbing Priscilla Owen, would be highly dramatic, uncertain. Senators would stay and listen. They would know that their vote would be noticed. And under those circumstances, some number of those Republicans are not going to want to have their reputations associated forever with someone who doesn't seem to know the difference between FDR and Lenin.

But this goes in the other direction, too. If the Democrats filibuster a nominee who is very conservative but qualified, responsible, and not "fringe," it will be embarassing to the party, and the filibuster itself will collapse, with enough Democrats getting cold feet that they will not have even the 40 votes.

Now, back to Fortas. Would Fortas's opponents have been able to organize their (hypothesized) majority against him without the threat of a filibuster? No, they would not. Fortas started out with apparent majority support; but as the fight went on, Richard Russell of Georgia, the leader of the Southern Democrats, who had supported Fortas in the past, turned against him. LBJ said of the filibuster, " I know [Republican leader Everett Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to get beat. Dirksen will leave us."

(One of the key tools of persuasion during the Fortas filibuster, if I recall correctly from Laura Kalman's great biography of Fortas, was a continuous showing in Strom Thurmond's office of pornographic movies that supposedly were made been legal under Fortas's rulings. Thurmond would invite Senators one by one up to his office to have a look at these films -- but no ladies, of course! (There was only one woman in the Senate at the time.) The vision of Thurmond and his cronies sitting in that dark room watching black and white stag films of the pre-Deep Throat era, over and over again while pretending to be considering a Supreme Court nomination has always been a horrifying vision, but a reminder that there's nothing that much nobler about the Senate of the recent past than today's.)

So let's assume the worst about Fortas -- he was a really, really bad guy and a majority wouldn't have supported him in the end. What would have happened if the Nuclear Option had been in effect in 1968? Quite likely, Fortas would have been confirmed as chief justice, with Russell and Dirksen supporting him. So if you think Fortas was a bad guy, you should support the filibuster, because only the filibuster made it possible to force LBJ to withdraw the nomination.

Here is the problem for the Republicans: They are much better off debating "the Nuclear Option," and the idea of filibustering judges in the abstract than talking about any of these particular judges, especially Brown. They do not want to debate these judges in any high-profile way. But they can't keep talking about the Nuclear Option without eventually pulling the trigger. And they can't pull the trigger unless they know they have the votes.

Posted by Mark Schmitt on May 5, 2005 | Permalink


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It is very likely that many of Clinton's blocked nominees had majority support in the Senate, notwithstanding the Republican majority. Many of his nominees were held up for a year or two by anonymous holds or "blue-slipping" procedures, only to be confirmed by a lopsided event like 96-2 when they actually came to the floor. In some cases, a blocked judge was confirmed UNANIMOUSLY - not even the Senator who had delayed their nomination for years voted no!

This is why, as Mark says, the filibuster is a great democratic tool - when used in its proper form, as opposed to the "paper filibuster" where nothing actually happens. The reason is that, once there's action on the Senate floor, a little thing like accountability enters the equation. Anyone can threaten to filibuster, but a cloture vote forces everyone to go on the record one way or another. And as time goes on, there's going to be a lot of pressure to either end debate or withdraw the nomination. People who equate the filibuster with a mere 60-vote supermajority requirement miss this point.

Posted by: Steve | May 5, 2005 11:11:40 AM

Exactly Steve. I don't know why Frist doesn't just challenge the Democrats' filibuster--the pressure would build on them quickly. By structuring his attack as a change in Senate rules, he turns what could be a Republican opportunity to paint the Democrats as being obstructionist into the 21st Century's equivalent of the Court-packing scheme. I suspect his plan has more to do with 2008 than getting any judges through. I also suspect it will fail--certainly with respect to 2008.

Posted by: Rob W | May 5, 2005 12:54:53 PM