- The Washington Times - Wednesday, May 18, 2005

In the current debate over judicial nominations, some commentators claim Republicans such as myself are misrepresenting history by suggesting the current filibuster tactics of the Democrats are unprecedented.

These commentators cite the 1968 nomination of Abe Fortas to be chief justice of the United States as an example of how Republicans once attempted to block a judicial nomination on the Senate floor. I welcome the opportunity to respond to this claim, because the more Americans learn about the history of judicial nominations, the more they will realize how terribly off-track our confirmation process has become.

In 1968, President Lyndon Johnson sought to elevate his longtime personal lawyer, then-Associate Supreme Court Justice Abe Fortas, to be chief justice. I would not be elected a senator for a few more months, but followed the news surrounding this nomination closely.

There were problems with the Fortas nomination from the beginning. Not only did he represent the most aggressive judicial activism of the Warren court, but it soon became apparent Justice Fortas had demonstrated lax ethical standards while serving as an associate justice.

For example, it emerged Fortas had taken more than $15,000 in outside income from sources with interests before the federal courts. This was more than 40 percent of his salary at the time, or about $80,000 in today’s dollars.

More fundamentally, Fortas never took off his political hat when he became a judge. While serving as a Supreme Court justice, Fortas continued serving as an informal political adviser to the president and even involved himself in Vietnam War policy. It later emerged Fortas had discussed pending cases with the president, an obvious violation of professional ethics.

In fact, less than a year after his nomination as chief justice was withdrawn by President Johnson, Justice Fortas was forced to resign from the Supreme Court due to ethical breaches.

The claim Fortas was not confirmed due to a “filibuster” is off-base. A filibuster, commonly understood, occurs when a minority of senators prevents a majority from voting up-or-down on a matter by use or threat of permanent debate.

That simply did not happen with Fortas, where the Senate debated the nomination’s merits quite vigorously. Senators exposed the ethical issues involved and the widespread belief the vacancy had been manufactured for political purposes. They sought to use debate to persuade other senators the nomination should be defeated.

After less than a week, the Senate leadership tried to shut down debate. At that time, two-thirds of the senators voting were needed to do so, yet only 45 senators supported the motion. Of the 43 senators who still wished to debate the nomination, 24 were Republicans and 19 were Democrats.

President Johnson saw the writing on the wall — that Fortas did not have 51 senators in support of his nomination — so he withdrew the nomination before debate could be completed.

The events of 37 years ago contrast markedly with those the Senate faces today:

(1) Fortas lacked majority support when President Johnson withdrew his nomination. Today, Senate Democrats block up-or-down votes on judicial nominees who are supported by a majority of senators.

(2) Justice Fortas was politically associated with President Johnson and eventually resigned from the Supreme Court under an ethical cloud. No such charges have been made against President Bush’s nominees.

(3) The Senate debated the Fortas nomination only for several days before Johnson withdrew the nomination, versus the four years some of President Bush’s nominees have been pending. It’s clear the Democrats today have no desire to persuade, and have even complained further debate is a “waste of time.”

(4) Fortas’ support and opposition were bipartisan, with Republicans and Democrats on both sides of the question. Today, the controversy is purely partisan — with only Democratic senators, led by their leader Harry Reid, opposing an up-or-down vote.

I recall two judicial nominations of President Clinton’s particularly troubling to me and my fellow Republican members when I was the Republican Leader in the Senate. Despite our objections, both received an up-or-down vote on the Senate floor. In fact, I voted to end debate on one of these nominees while voting against his confirmation. Republicans chose not to filibuster because it was considered inappropriate for nominations to the federal bench.

By creating a new 60-vote threshold for confirming judicial nominees, today’s Senate Democrats have abandoned more than 200 years of Senate tradition.

For the first time, judicial nominees with clear majority support are denied an up-or-down vote on the Senate floor through an unprecedented use of the filibuster. This is not a misrepresentation of history; it’s a fact.

Bob Dole, author of “One Soldier’s Story,” recently published by HarperCollins, is the former Senate Majority Leader from Kansas.

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