By Bruce Walker
web posted May 9, 2005
A lot of text has been written about whether or not the nomination of Abe Fortas was "filibustered" by Republican senators, when LBJ nominated him to be Chief Justice, but the answer to that question means nothing.
Four years ago, when President Bush began his first term, he had won the election in a controversial, court mediated decision. Whether one supported him, as I did, or opposed him, it was clear that he had no mandate.
Soon after he took office, Republicans actually lost control of the Senate when Jeffords became an independent voting with Democrats to organize the Senate. Not only was there no clear mandate for President Bush to nominate justices, from the standpoint of popular will, but there was no clear mandate from that body which confirmed justices, the United States Senate, when Republicans lost control of in the 2000 election and its aftermath.
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I recall well when Lyndon Johnson nominated Abe Fortas to be Chief Justice and this was the context of the nomination. In 1966, Democrats had suffered devastating setbacks in the mid-term elections, losing forty-seven House seats, three Senate seats and eight governorships.
Johnson himself chose not to run for re-election, meaning that he had removed himself from accountability to the people through re-election, and public opinion polls showed that the Leftist turn of the Warren Court was extremely unpopular with the American people.
Moreover, Lyndon Johnson nominated Abe Fortas in the middle of a presidential campaign. The next President of the United States was not going to be Lyndon Johnson, and, all the polls indicated, it would not Hubert Humphrey either, but a Republican.
In September 1968, some polls had Humphrey running twenty-seven percentage points behind Nixon. Beyond that, this was a three party race with George Wallace at the time receiving in polls twenty-one percent of the popular vote (running only a few points behind Humphrey.)
Wallace was absolutely fanatical in his opposition to liberal judges on the Supreme Court, taking a much harder line to the Right than Richard Nixon. These two men together in September 1968 had polls with sixty-six percent of the popular vote to twenty-eight percent for Humphrey. As the election turned out, Humphrey received an anemic forty-two percent of the popular vote. The American people, not just Republicans in the Senate, did not want more liberals on the Supreme Court, and 1968 was the second consecutive election in which they made that quite plain. In fact, Republicans would gain Senate seats in the next election as well and would carry every state in the Union except Massachusetts in the following presidential election.
Compare the brief delay in confirming Fortas with the situation today. Democrats campaigned in 2002 that President Bush was an illegitimate president, and so forth: Democrats lost control of the Senate. Democrats ran in 2004 based upon the argument that President Bush would appoint "extremists" to the Supreme Court: President Bush won a majority of the popular vote – more than any American in history – and Republicans gained four more Senate seats.
What Republicans wanted in 1968, and what many openly said at the time, was for the next President, not a lame duck who could have run for reelection but who chose not to and who had suffered embarrassing rejections by the American people, to choose the next Chief Justice.
Fortas, by the way, was not filibustered for appointment to the Supreme Court, but to be Chief Justice; he was already a vote for the Left on the Supreme Court. Had Fortas been confirmed, it would not have mattered much at all: Nixon was still going to nominate the vacancy on the Supreme Court.
What Senate Democrats object to is that the will of the people is being manifest in the actions of President Bush and Senate Republicans. What Republicans and some Democrats objected to in 1968 was that the people were weeks from casting ballots and LBJ (who also, conveniently, decided that the best time to stop bombing North Vietnam would be a few days before the November 1968 election) was trying to thwart the will of the people.
Leftists always accuse conservatives and other normal people of doing what they themselves are doing. The "October Surprise" so often imputed to Republicans occurred exactly once in modern American history, by a liberal Democrat trying to swing the presidential election to another liberal Democrat. The phony Fortas "filibuster" is just the same. LBJ was trying to keep the American people from expressing their will, and President Bush is trying to implement that will through judicial appointments. 
Bruce Walker is a contributing editor with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
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