- The Washington Times - Thursday, May 12, 2005

Democrats frequently point to the 1968 filibuster against the elevation of Associate Justice Abe Fortas to chief justice of the U.S. Supreme Court as evidence that the Republican Party was the first to use the filibuster against a high-level judicial nominee in the modern era. Republicans reply that the filibuster against Fortas was bipartisan. Indeed, 19 Democrats, including 15 Southern Democrats, many of whom led the filibuster, joined 24 Republicans in an Oct. 1, 1968, vote that soundly defeated an attempt to invoke cloture and end the filibuster. Republicans also argue that the filibuster was launched on Sept. 25 only after Fortas refused on Sept. 13 to appear before the Senate Judiciary Committee following disclosures that his former law firm raised $15,000 to pay Justice Fortas for seminars conducted at American University. It later developed that Fortas had lied in his testimony during his July confirmation hearing about his relationship with jailed financier Louis Wolfson, who was later revealed to have contracted with Fortas — after he had become a member of the Court — to pay the justice (and his widow after his death) $20,000 a year. In May 1969, Fortas was forced to resign from the Supreme Court after the Wolfson arrangement became public. Finally, with the pro-Fortas forces in the Senate able to garner only 45 votes in their unsuccessful effort to end the filibuster, Republicans have convincingly argued that Fortas, unlike each of the 10 circuit-court nominees recently filibustered by Democrats, never enjoyed majority support in the Senate.

The Fortas affair is interesting for another reason. Curiously, contemporaneous news accounts reported that the pro-Fortas forces needed 59 votes on Oct. 1, 1968, to invoke cloture and end the bipartisan filibuster. Fifty-nine? Why not 60, which, for several decades, has been the minimum number of Senate votes needed to invoke cloture irrespective of the number of senators voting on a cloture motion? Well, in 1968, and for more than half a century before, invoking cloture required a two-thirds vote of the senators present. With 88 senators voting on the motion to end the Fortas filibuster, 59 would have been two-thirds.

As it happens, thanks in large part to the efforts of Democratic Sen. Robert Byrd, the Senate rule governing filibusters was significantly changed in 1975. No longer would two-thirds of the members voting be necessary to invoke cloture; instead, three-fifths of the Senate membership (or 60 votes in a 100-member body) would be required. To achieve that Senate rule change in 1975, moreover, the Senate used at least three majority votes (51-42, 48-40, 46-43). When Republicans recently publicized Mr. Byrd’s 1975 role in changing the cloture threshold, he told The Washington Post that he acted because the Senate would otherwise have switched to a simple majority vote. But the 1975 reform plan sponsored by liberal Democratic Sen. Walter Mondale would have changed the rule to three-fifths of the members voting, not to a majority. As majority whip in 1975, it was Mr. Byrd who proposed the threshold of three-fifths of the Senate’s membership.

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