C. Boyden Gray, whose Committee for Justice was created to support the administration’s right-wing judicial nominees, wrote a June 10, 2003 Wall Street Journal commentary that passes itself off as an in-depth analysis, concluding that the Fortas nomination did not have the votes to pass on the floor, and so the efforts to block a vote did not constitute a precedent for today’s filibusters. Hatch and other senators have made similar claims on the Senate floor. Like the meaningless footnotes in an Ann Coulter “non-fiction” book, Gray’s “analysis” merely distorts the truth.
In his commentary, Gray asserts that Justice Fortas withdrew, not because his nomination was filibustered, but because “he did not have a majority of the votes.”
At a basic level, this contention defies logic, because Fortas’ opponents would have had no reason to fight a cloture motion to cut off debate if indeed they had the votes to defeat the nomination outright – they would have let the vote go forward and voted Fortas down. A closer analysis of the historical record reveals, however, that Gray’s faulty conclusions are based on conjecture and selective assumptions that do not withstand scrutiny.
Gray starts with the Congressional Record vote on October 1, 1968, with 45 senators voting for cloture and 43 against. He then considers those who did not participate in the cloture vote, and determines that there were 48 senators on record opposing cloture and 47 favoring it. Next, he notes that one senator who supported cloture, Republican John Sherman Cooper of Kentucky, said he would oppose the nomination if it came to a vote. And finally, he throws in the “red herring” that another senator who supported cloture asked the president to withdraw the nomination after the cloture vote failed.
This evidence suggests, according to Gray, that “at least 49 senators … either opposed allowing a confirmation vote or opposed confirmation on the merits.” “[I]f anything,” Gray suggests, “Justice Fortas might have had a majority opposed to his confirmation --- cast[ing] doubt on the likelihood that a committed plurality of 50 senators ….. would have voted for Justice Fortas’s confirmation had the filibuster not prevented it.”
From this guesswork, Gray makes a flat assertion that “The Senate Democrats are engaged in an unprecedented filibuster...Fortas is no precedent: he did not have the majority of the votes.”
Gray’s waltz through the historical record leaves out information that undermines his theory. In particular, we know that two of the senators who did not vote on cloture, Edward V. Long (D. Mo.) and George Smathers (D. FL), had in fact supported the Fortas nomination in the Judiciary Committee. Another senator, Thomas Dodd (D. CT), voted in favor of the nomination in the Judiciary Committee; the fact that he voted against cloture and in favor of continuing debate is no indication that he had changed his mind on the nomination itself. (See 1968 CQ Almanac, page 536.) The Dodd example alone raises questions about Gray’s apparent assumption that all senators voting against cloture would have voted against Fortas.
These three votes bring the total in support of the Fortas nomination to 49 (3 plus the 47 who either voted for or announced in support of cloture, less the vote of Senator Cooper). Add to that Senator George McGovern (D. SD) who was absent for the October 1st cloture vote, but who most certainly supported the Fortas nomination, and the tally becomes 50 votes in favor of the nomination. Even with no other votes in favor of Fortas, Vice President Hubert Humphrey would have cast the tie-breaking vote and Fortas would have been confirmed.
Additionally, if one considers Senator Edward Lewis “Bob” Bartlett (D. AK) and Senator Thruston Morton (R. KY), both of whom missed the cloture vote but had earlier supported the nomination of Supreme Court Justice Thurgood Marshall, then it is plausible there were as many as 52 votes in favor of the Fortas nomination. In any event, Gray’s strained conclusion, that 43 votes against cloture somehow translates into more than 50 votes against the nomination, does not hold water.
The record is quite clear, from both Senate records and contemporary press accounts: the nomination of Abe Fortas to be chief justice was withdrawn following a successful filibuster by a minority of the Senate. The revisionist history being employed so that Senate Republicans can call current filibusters “unprecedented” reflects disdain for the truth and disrespect for the Senate and its history.