Fortas Was Only Justice Filibustered

The U.S. Senate has filibustered only one Supreme Court nomination-President Johnson’s proposal to elevate Abe Fortas from associate to chief justice in 1968.

Fortas was an extremely liberal Tennessee lawyer who, in 1948, had helped Johnson survive a contested Senate election in Texas that Johnson won by only 87 votes. In 1965, Johnson nominated him as an associate justice, and the Senate confirmed him. But when, with only a few months remaining in his presidency, Johnson tried to elevate Fortas to succeed Earl Warren, as chief justice, senators of both parties balked.

Justice Fortas had sparked controversy by accepting $15,000 for teaching a nine-week course at American University. This was considered a large sum of money at the time.

When Fortas refused to testify before the Senate Judiciary Committee on Sept. 13, 1968, to discuss new revelations about his lucrative moonlighting, Sen. Robert Griffin (R.-Mich.) led a filibuster against his confirmation.

The filibuster ended October 1, when the Senate failed to invoke cloture and limit debate. Cloture, which then required a two-thirds majority of the 100 elected senators (the three-fifths rule was adopted in 1975), did not get even a simple majority, ending up 45 to 43. Nineteen Democrats joined 24 Republicans in support of the filibuster. At that point, Fortas asked Johnson to withdraw his nomination.

Griffin and the others were vindicated even more the following year when Fortas became the only justice ever forced to resign under pressure. Again, his problem was an unusual financial arrangement: in 1966, he had agreed to receive payments of $20,000 each year for extra-judicial activities from Louis Wolfson, a convicted financier. Although Fortas said he had changed his mind and returned the first payment, his original acceptance of the money provided enough ammunition for others to demand his resignation. He stepped down, but denied all wrongdoing until his death in 1982.

Griffin’s filibuster differs from the present filibuster against Bush appellate court nominees Miguel Estrada and Priscilla Owen in that it was backed by senators of both parties and was against someone already on the Supreme Court, rather than a first-time nominee to a lower court. There is no precedent for a lower court nominee’s being turned away by a filibuster.