An op-ed in this morning’s L.A. Times, by Rutgers history professor David Greenberg, is titled: The Republicans’ Filibuster Lie. A sub-head reads: “They seem to have forgotten the Fortas case.” It opens:
To justify banning Senate filibusters in judicial nomination debates, Republicans are claiming support from history. Until now, say Republicans such as Sen. John Kyl and former Sen. Bob Dole, no one has used filibusters to block nominees to the federal courts. Because Democrats have broken an unwritten rule, their logic goes, Republicans are forced to change written ones.
But the charge that filibustering judicial appointments is unprecedented is false. Indeed, it’s surprising that so few Washington hands seem to recall one of the most consequential filibusters in modern times, particularly because it constituted the first salvo in a war over judicial nominees that has lasted ever since.
Greenberg does an admirable job of destroying a strawman. But the GOP’s true argument remains: never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate.
The Fortas example is not to the contrary. First of all, it’s not clear it was really a filibuster. Fortas’s opponents debated his nomination only four days, and repeatedly insisted that they were not engaging in a filibuster. But let’s assume it was. There is evidence that Fortas would have lost a floor vote, 46-49. Even if you dispute these numbers, Fortas cannot be said to have enjoyed clear majority support. This distinguishes his case from that of all currently filibustered GOP nominees.
This is why I encourage the GOP to preface any attempt to employ the “nuclear option” with something I call the “conventional warfare option” — a non-binding vote of support for the filibustered judges. This would bring to the attention of the American people — in a clear, public, and unmistakable way — that the filibustered judges enjoy majority support in the Senate. They are being denied judgeships only by the obstructionism of Senate Democrats.
Prof. Greenberg’s claims get shakier as the op-ed proceeds. My favorite is his argument that ethical concerns about Fortas were “feigned”:
Fortas’ foes had various justifications for opposing him. Republican Robert Griffin of Michigan attacked the justice as the president’s “crony.” There was feigned outrage over news that he had earned $15,000 for leading summer seminars at American University — a real but petty offense that critics inflated into a disqualifying crime.
I guess it’s just an accident that Fortas resigned a year later under a cloud — something Prof. Greenberg neglects to mention in today’s op-ed. A FindLaw portrait says:
In 1969, Life magazine revealed that Fortas had accepted and then returned a fee of $20,000 from a charitable foundation controlled by the family of an indicted stock manipulator. Fortas resigned from the bench on May 14, 1969 but denied any wrongdoing.
As the book The Brethren explains, the foundation was funded by a man named Louis Wolfson. “At that time Wolfson had been under investigation by the Securities and Exchange Commission, and had apparently bragged that his friend Fortas was going to use his influence to help.” Wolfson gave government investigators a document showing that “the $20,000 was not a one-time payment. The Wolfson Foundation had agreed to pay Fortas $20,000 a year for the rest of his life, or to his widow for as long as she lived.” In addition to this contract, correspondence between Wolfson and Fortas showed that they had discussed his S.E.C. case, and that “Wolfson had asked Fortas’s help in obtaining a presidential pardon.”
This help would have been valuable, because the GOP’s description of Fortas as an LBJ “crony” was true. He admitted to the Judiciary Committee that he “remained involved in White House political affairs even while serving on the Supreme Court, including advising the President regarding the Vietnam War and recent race-riots in Detroit.”
Looks like the Republicans were on to something with those “feigned” concerns over the seminar payments — which were a different matter entirely, but revealed something about the formerly well-to-do Justice’s need for extra cash.
History professor Greenberg surely knows all of this. But he “seems to have forgotten” it, as he completely fails to disclose the fact that Fortas resigned, much less the suspicious circumstances under which the resignation was submitted.
Or maybe there is some other reason Prof. Greenberg didn’t mention Fortas’s resignation to Times readers . . .
UPDATE: Pejman has an excellent post on Prof. Greenberg’s op-ed.