TBogg

Hugh Hewitt: Horrible Law Professor. Worse Historian.

Whoops

Quoth the Hewitt:

For the GOP to make any progress here at all, they need to begin now, and force some nominees –especially Keisler– out of the Judiciary Committee during the lame duck session, followed by floor votes. Then a constant focus must be kept on Patrick Leahy’s four corners’ offense. He will never hold a vote he doesn’t have to, so if the Senate GOP doesn’t start now to demand fairness in that body, it will never arrive. The only way to get a fair shake for any SCOTUS nominee if one should be called for is to have already explained for the public how the operations at the Judiciary Committee are supposed to work.

The unbroken tradition of the United States Senate is to give a floor vote to any SCOTUS nominee who requests one. Abe Fortas was delayed for a few days and withdrew.

No SCOTUS nominee has ever been denied an up-or-down vote if the nominee wanted one.

Reality:

A seasoned Senate vote-counter, Johnson concluded that despite filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected.

The president soon lost Russell’s support, however, because of administration delays in nominating his candidate to a Georgia federal judgeship. Johnson urged Senate leaders to waste no time in convening Fortas’ confirmation hearings. Responding to staff assurances of Dirksen’s continued support, Johnson told an aide, “Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we’re going to get beat. Dirksen will leave us.”

Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.

On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, “the Fortas appointment would have been different.”

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