oh the past, the past
May 3, 2005 10:05 PM   Subscribe

The Filibuster and Fortas The republicans have been saying for weeks (or is it months?) that the "nuclear option" is justified because democrats did the unprecedented and threatened to filibuster judicial nominees. For weeks (or is it months?) many journalists and bloggers and average folks like myself have accepted the premise of this argument, while disaggreeing with its conclusion. Trouble is, it's just not true. (And there's video too, if I you want it...) Here's the wiki on Abe Fortas, a man I personally knew too little about before this. A man who resigned from the Supreme Court in scandal. He was also the same man who picked up Gideon's Trumpet.
posted by jann (11 comments total)
Unfortunately, you're completely misunderstanding the Abe Fortas filibuster. " Senators were concerned that Fortas was overstepping his bounds by providing private counsel to the Johnson Administration on both "secret Court deliberations" and the war in Vietnam. There were also concerns about his receipt of a private stipend to teach. These were ethical concerns, not ideological ones, and Greenberg is either ignorant of them, or is dishonest in presenting his historical argument in favor of the filibuster."

Greenberg is also wrong about his (unsupported) contention that the concerns about Fortas' stipend were feigned.

There's more, but it's easier if you just read the first link I provided.
posted by gd779 at 10:32 PM on May 3, 2005

But gd779, if that's true, then why not bring the issue up as a reason to vote against him, followed by a speedy up and down vote where those facts would have no-doubt kept him from becoming appointed?

The reasons *why* don't change the fact that the filibuster was employed in an effort to deny a straight up and down vote, which very well may have confirmed him.
posted by Jezztek at 11:05 PM on May 3, 2005

Is this post about Fortas or the current tussle over filibusters? You don't need to go back to the 60s for an example of Senators filibustering against federal judicial appointments, or stopping the full Senate from just voting judges up or down. I thought it was common knowledge (among those who actually follow politics) that Republicans filibustered and blocked Clinton nominees in the 90s.
posted by mistersix at 12:17 AM on May 4, 2005

Judges are denied up down votes, even judges that might get confirmed. That's a fact, and while it is not standard, it is not uncommon, either. The idea that that is unprecedented is pure bullshit, and anyone that says that is the case is naive or dishonest.

The only interesting thing about a wholly potential filibuster by Dems is the fact that it is necessary: there were many arcane and bizarre ways to stop an up-down vote until recently (ways often employed by Republicans, in very recent history). When Republicans got it through their head in the last few years that American government was theirs for all eternity, the eliminated those procedures.

One can argue whether denying up-down votes is a good or bad thing. One can not, however, have an honest discussion about that by starting from the wholly dishonest position that denying an up/down vote is outside the bounds of normalcy. It ain't.
posted by teece at 12:22 AM on May 4, 2005

It seems to me, in addition to the valid points expressed above, that the wapo article is really quibbling over semantics. Furthermore, the article is limited in scope to comments Frist made. I really fail to see how this is a valid argument one way or the other. As mistersix said, I see a lot of ambiguity in the post. Exactly what is it you're trying to say here?
posted by avriette at 2:12 AM on May 4, 2005

Ed Brayton has some excellent articles regarding the filibuster, "judicial activism" and many other topics involving constitutional law.

If you are a layman like me struggling to learn a bit more than presented in 30 second tv news explanations or crass oversimplification contained in mainstream print press, this site may be for you. Hope I'm not directing you to a site all of you are well aware of already.
posted by Osteo at 7:28 PM on May 4, 2005

Sen. Barbara Boxer:

"According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor." (Congressional Record, May 14, 1997)

Sen. Ted Kennedy:

"The Constitution is clear that only individuals acceptable to both the President and the Senate should be confirmed. The President and the Senate do not always agree. But we should resolve these disagreements by voting on these nominees--yes or no." (Congressional Record, Jan. 28, 1998)

Sen. Chuck Schumer:

"I also plead with my colleagues to move judges with alacrity--vote them up or down. But this delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of very sincere people who have put themselves forward to be judges and then they hang out there in limbo." (Congressional Record, March 7, 2000) 

posted by republican at 8:40 PM on May 4, 2005

We could play that game all night--both parties used the filibuster when warranted. Now, one party wants to kill it for judicial nominations forever--that's the GOP.

Documents obtained by American Progress show Senate Majority Leader Bill Frist participated in an effort to block one of Bill Clinton's judicial nominees via filibuster, then lied about it.

In recent weeks, Frist has been relentlessly preaching about the evils of judicial filibusters. Speaking to the Federalist Society on November 12, Frist said filibustering judicial nominees is "radical. It is dangerous and it must be overcome." [1] Frist called judicial filibusters "nothing less than a formula for tyranny by the minority." When Bill Clinton was President, however, Frist engaged in the same behavior he is now condemning.

In 1996 Clinton nominated Judge Richard Paez to the 9th Circuit of the United States Court of Appeals. Conservatives in Congress held up Paez's nomination for more than four years, culminating in an attempted filibuster on March 8, 2000. Bill Frist was among those who voted to filibuster Paez. [2] ...

posted by amberglow at 8:48 PM on May 4, 2005

Regardless of its relation to the current filibuster debate, this is a great post - Abe Fortas's story is awesome, he was rotten through and through.

First of all, there's little doubt that LBJ was buying the primary election in Texas, and the federal court issued an injunction keeping him off the ballot like they probably should have. Abe's brilliant idea was to write such a bad brief that the 5th circuit court of appeals would affirm the adverse judgment (!) and he could appeal directly to the Supreme Court, where he knew he'd find a sympathetic ear in Justice Black. He threw his federal appeal! Amazing.

Then, as far as I know, he was the first (and last) Supreme Court justice drummed out of his seat in the midst of scandal. Wow. He was a brilliant guy, though, and when he took the Gideon case, he pretty much ran circles around the poor Florida assistant AG.
posted by rkent at 8:51 PM on May 4, 2005

The filibuster was intended to help prevent the tyranny of the majority. There is already a mechanism to end the filibuster: 60 votes, or a 60% majority. A 60% majority for something as important as judicial nominees doesn't sound out of line.
posted by substrate at 5:00 AM on May 5, 2005

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