Patterico's Pontifications

5/3/2005

David Greenberg’s Misleading Arguments on Judicial Filibusters

Filed under: Dog Trainer,Judiciary — Patterico @ 6:47 am



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.

30 Responses to “David Greenberg’s Misleading Arguments on Judicial Filibusters”

  1. […] ecent Comments

    Leigh on Tell Us About YourselvesPatterico on Question Patterico's Pontifications » 2005 » May » 10 (0c6a63)


  2. […] y column on the disfigured filibuster.  Ace of Spades picked up the theme.  Then Patterico, Pejmanesque, and Bainbridge demoli […]

    Whispers in the airstreams » Exposure (68706e)

  3. DOES DAVID GREENBERG KNOW HISTORY?
    Evidently not. He informs us in this column that Justice Abe Fortas’s nomination to succeed Chief Justice Earl Warren was filibustered for ideological reasons. Alas, the history webpage of the United States Senate informs us that there was more to…

    Pejmanesque (2ae9b5)

  4. Even if the Fortas episode WAS a fillibuster–it has little, if any, precedential value for, both the lack of clear majority support and Fortas’ ethical “challenges.”

    The Fortas episode is only precedent should another justice as “unique” as Abe Fortas come along.

    Christopher Cross (cdc0ce)

  5. Some Call It A Bonfire/Carnival Of Classiness.
    We call it “Classiness, All Around Us.” Click to explore more WILLisms.com. In no particular order, WILLisms.com presents classiness from the blogosphere (truncated version for this light-blogging week): 1. Blogs for Bush notes that, based on interce…

    WILLisms.com (4eb558)

  6. Your idea of the non-binding vote has merit.

    ds (26027c)

  7. The LAT again proves what Clinton knew years ago. The best way to lie is to only tell part of the truth.

    Rod Stanton (e6ac83)

  8. Fortas
    An LA Times op-ed by David Greenberg claims: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

    ProfessorBainbridge.com (af7df9)

  9. Hmm. The Republicans are behaving like Iran. latimes.com currently has the headline: Iran Won’t Give Up Nuclear Options.

    The Republicans really deserved to get dinged on this one. How did they let this situation develop where the opposition can run the poll, “Do you support the filibuster or the nuclear option?” And for what gain? Very little. Many voters trusted their vote with Republicans with the hope they would spend their power carefully. Instead they (we) get this shitstorm on TV that lasts months. The politics on this have been botched so hard, I care more about that than the merits of individual judges.

    Ladainian (91b3b2)

  10. Did Santorum ever turn down any clinton appointees when the democrats were in power? The dems used to allow that.

    actus (ebc508)

  11. I’m much more concerned about an Associated Press “news” story today by David Espo. It seems just as biased and wrong as Greenberg’s “op/ed” piece, but will be read by a thousand times as many people. I wrote a letter to Associated Press, see http://www.confirmthem.com/?p=397

    Andrew (d85f42)

  12. Patterico, Hugh Hewitt mentioned you today anent this post… but once again, he called you “Pa-TER-i-koh,” not “Patter-EE-koh.”

    I move that from now on, until he starts pronouncing your name correctly, that you refer to him consistently in print as Huge Hewgitt.

    Fight fire with a flamethrower, that’s my motto!

    Dafydd

    (“DAH-vəth,” where that last th sound is a voiced th, as in “them,” not as in “thing.” And the və is of course v-schwa, which is a vowel sound somewhere between eh and uh — like the a in about or the o in harmony — but not to be confused with the close central unrounded vowel, depicted by ɨ (like the e in houses) or the er-sound rhotic schwa, ɚ like the e in farmer. Got it?)

    Dafydd (df2f54)

  13. I heard that, Dafydd. It’s pretty cool to hear one’s nickname mentioned on national radio, even mispronounced.

    Funny thing is, I gave the correct pronunciation when I met him the other night, and he said: “I’ve been pronouncing it wrong on the radio!” (And he was thinking: “And I’m going to continue to!”)

    Ah, well. Better to be mispronounced than not pronounced at all . . .

    Patterico (756436)

  14. Fortas Who?
    The LA Times publishes a horribly flawed commentary by David Greenberg today attempting to undermine the Republican demand for the Senate to hear President Bush’s Judicial Nominees. Here is their charge:……

    ThreeBadFingers (a354a0)

  15. Great work here…..keep it up. I think I am going to use some of this in my newest post.

    Ben Keeler (b1555f)

  16. If someone tells you that the Republicans….
    ….filibustered Abe Fortas’ nomination to the court, point them to this excellent discussion of the history of the nomination. Be sure to read the comments as well. There’…

    Media Lies (11ee8e)

  17. With inflation, the “real but petty offense” of $15,000 turns into something like $150,000 in todays dollars.

    Liz Turner (e2e0a0)

  18. Fortas had been a Johnson intimate since the 1930’s. He’d been instrumental in advising LBJ in the stolen 1948 Senate primary where the term “Landslide Lyndon” was coined.Robert Caro’s biography of LbJ devotes a large section of The Path to Power” about this.

    lincoln (dfaf29)

  19. A question please, that I may be educated by p-a-t-t-e-r-i-c-o (it appears that the pronounciation is in the mouth of the speaker…). I have seen anti-reason…,er, I mean anti-Republican references (including in my local “objective and honest” Philadelphia Inquirer) to a Judge Paez that “was held-up by filibuster for 4 years” before the person was confirmed in 2000. This appears to clash to other information that I more eagerly embrace. Was Paez not filibustered, or do we not count this person because he/she was eventually approved (even though a filibuster could have been done), or he/she was not a circuit judge, or what, exactly???

    PS, if you REALLY want to get Hewitt’s attention, I would suggest threaten (er, “declare the possibility of”) the following publicity campaign:

    1. Massillon can’t play volleyball, let alone football.
    2. Rumors of catching fish again in Lake Erie have been greatly exaggerated.
    3. Any supposed photos of the Cuyahoga River since 1970 are all fraudulant (it hasn’t gotten that much better).
    4. In the last will and testament of Woodrow B. Hayes he stated that “The USC Trojans have the Best Football Program of the Century”, and “I wished I could have had a nickname as neat as “Bo”.
    5. A Patterico-led investigation has declared that the current “Cleveland Browns” has no right to the name. Paul Brown has never been associated with the current organization.

    (I am listening to him as I write this, little does he know…)

    MD in Philly (1b0bc5)

  20. AN OPEN LETTER
    To: David Greenberg From: Pejman Yousefzadeh Re: The link in the last paragraph of your post. Dear Professor Greenberg: You’re wrong. Totally wrong. Best, Pejman Yousefzadeh…

    Pejmanesque (2ae9b5)

  21. Wikipedia notes that Fortas resigned from the Court under threat of impeachment.

    In 1969, a new scandal arose. Fortas had accepted a $20,000 fee from a foundation controlled by Louis Wolfson. Wolfson was a financier who was under investigation for violating Federal securities laws. He was later convicted and spent time in prison. Wolfson was also a friend and former client of Fortas. Under intense congressional scrutiny, including a threat of impeachment, Fortas resigned from the court.

    Kevin Murphy (6a7945)

  22. Yeah, but Wikipedia changes from one second to the next . . .

    Patterico (756436)

  23. […] As I mentioned in a post this morning, recent blogosphere discussion of filibusters includes Hugh Hewitt on Hagel, plus Hugh on Terry Neal in WaPo, plus Patterico on Greenberg in LA Times (updated here), plus Pejmanesque on Greenberg in LA Times. Also, David Bernstein defends Janice Rogers Brown at the Volokh conspiracy. No responses to ‘All-Nighters’. RSS feed for comments and Trackback URI for ‘All-Nighters’. […]

    Confirm Them » All-Nighters (5c7b11)

  24. […] What else did I learn by sitting in for Dan Drezner? That I’m not cut out for blogging. You don’t say. For once, he is completely right. Maybe he can figure out that he isn’t right for Judical Filibusters too. This may be the first time Dan and Pejman Yousefzadeh agree on something. (Post a new comment) […]

    steves_world: David Greenberg Is An Asshole (a9d080)

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