That Evil Filibuster

To counter the claims of some so-called liberals out there, let's actually look at the history of the Senate filibuster. There will be some ugly moments along the way, like Strom Thurmond's record for the longest speech given on the Senate floor, a 1964 filibuster against the Civil Rights Act. Of course, although critics of the filibuster like to bring that speech up whenever they attack (calling it a tool of the bigots, a minority delay tactic, undemocratic--as though "democracy" somehow meant "majority"), they never get around to reconciling their call for the end of the filibuster with the fact that the Civil Rights Act actually passed. We ain't talking about the fucking League of Nations here, or the second US Bank. The CRA survived the filibuster. What's your fucking problem, again?

But, what about all the appointments and pieces of legislation that DIDN'T make it out of the Senate because of the filibuster? Gee, you aren't hearing a whole lot out of the liberals on that subject. Maybe they just don't like to do homework. Or perhaps they are just as committed as the Republicans to doing away with the filibuster because, in their own sick little way, they think the Democrats can do what the Republicans probably can't: get and hold power in the Senate, beginning in 2006, and use that power to destroy the minority party. That's all I can think of.

As for all this bullshit about how the filibuster contradicts the democratic process by making obstructionism a matter of rule, all I can offer is that shit gets done. No one is now or ever has been able to claim legitimately that the Senate is in stalemate. The essence of politics is compromise, as everyone knows. What's more, and to return to the question of what democracy is--or perhaps we ought to ask what liberals think democracy is--we are hearing a lot about how the Senate is and always has been an elitist institution, designed to rein-in the foolish masses as represented by the House. It's like the Electoral College: nobody likes that anymore because it's "elitist" (which sounds like loser talk to me. If Democrats thought they could win with the Electoral College or the Senate, they wouldn't be saying these things). In terms of "elitism," well, yeah, I guess you could say that in some ways, ALL safety catches are elitist: they all presume to know better than you do what the correct course of action is. From smoke detectors, to Microsoft SpellCheck, to the backing-up sensor on your Hummer, the whole idea is that YOU don't know everything. And neither do I. And a whole mess of us together is just a mob, it's not a brain. Let me put it this way: if you, rabid individualist that you are, would put your future in the hands of the House of Representatives, step forward.

Nobody? Not one person? (cricket sounds)

Alright, now that I've disabused you of that little fantasy, let's look at a filibuster. This week's installment is Abe Fortas. A crooked, unethical Supreme Court judge, nominated for Chief Justice by LBJ but forced to withdraw after revelations about his inappropriate ties to the White House. Basically, he was Johnson's personal Justice--think Antonin Scalia, Clarence Thomas, and GW Bush all in a three-way together. That was what was proposed as the future of the Supreme Court in 1968.

From the US Senate's website:

"In June 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he planned to retire from the Supreme Court. Concern that Richard Nixon might win the presidency later that year and get to choose his successor dictated Warren's timing.

In the final months of his presidency, Johnson shared Warren's concerns about Nixon and welcomed the opportunity to add his third appointee to the Court. To replace Warren, he nominated Associate Justice Abe Fortas, his longtime confidant. Anticipating Senate concerns about the prospective chief justice's liberal opinions, Johnson simultaneously declared his intention to fill the vacancy created by Fortas' elevation with Appeals Court Judge Homer Thornberry. The president believed that Thornberry, a Texan, would mollify skeptical southern senators.

A seasoned Senate vote-counter, Johnson concluded that despite filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected.

The president soon lost Russell's support, however, because of administration delays in nominating the senator's candidate to a Georgia federal judgeship. Johnson urged Senate leaders to waste no time in convening Fortas' confirmation hearings. Responding to staff assurances of Dirksen's continued support, Johnson told an aide, "Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to get beat. Dirksen will leave us."

Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.

On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the Fortas appointment would have been different."

What happened to Abe Fortas, dear readers? The son of an immigrant Jew, he came from Tennessee, worked for the Roosevelt administration, and helped Lyndon Johnson get his first elected seat in Congress in 1948, a Senate seat from Texas, amidst charges of election fraud by the Johnson team. Fortas, a prominent attorney, "persuaded" the judge who was asked to sort out the whole mess not to overturn Johnson's 87-vote margin, even though 100 votes for him were cast in alphabetical order. Ah, good ol' majority rule. When Johnson became President, he put pressure on Justice Arthur Goldberg to resign, which he did, and then appointed Fortas to the Court.

When filibustered, Fortas faced a split Senate. You might think that Republicans were his undoing, seeing as how he was deemed very liberal, but in fact in the cloture vote 10 Republicans and 35 Democrats voted for cloture, with 24 Republicans and 19 Democrats voting against. 12 Democrats did not show up for the vote. This was, in other words, not a Republican hatchet job, nor the work of anti-Semites, nor any other kind of conspiracy to hold up and defile democracy.

Richard Nixon, who was the next President, as we all know, then appointed Warren Burger to head the Court. Goddamn that filibuster!

But back to Fortas. He was forced to resign from the Supreme Court in disgrace, I'm afraid, because in 1969 he was caught with his hand in the cookie jar once again. After it was established that Fortas took $20,000 from a former client under indictment for securities fraud, the Justice was forced to resign under threat of impeachment. Yep, Abe Fortas was an all-around class act. If only there had been no filibuster, he could have been Chief Justice of the Supreme Court. And we could all be living in a world where the President dictated to the Court its rulings, the Justices were all on the corporate payroll, and helping to fix an election put you on the fast-track to a judicial appointment.

Not that it matters (and I don't consider this to be powerful evidence since no one, least of all Richard Nixon, could predict the future), but Fortas' seat on the Court was filled by another Nixon appointee, Harry Blackmun.

What did he ever do? Well, he wrote a little majority opinion on a case you may have heard of: Roe v. Wade.

Why does the filibuster hate America so much?