Such claims, however, are at odds with the record of the successful 1968
GOP-led filibuster against President Lyndon B. Johnson's nomination of Abe
Fortas to be chief justice of the United States. "Fortas Debate Opens with a
Filibuster," a Page One Washington Post story declared on Sept. 26, 1968. It
said, "A full-dress Republican-led filibuster broke out in the Senate yesterday
against a motion to call up the nomination of Justice Abe Fortas for Chief
Justice."

A New York Times story that day said Fortas's opponents "began a
historic filibuster today." As the debate dragged on for four days, news
accounts consistently described it as a full-blown filibuster intended to
prevent Fortas's confirmation from reaching the floor, where a simple-majority
vote would have decided the question. The required number of votes to halt a
filibuster then was 67; filibusters can be halted now by 60 of the Senate's 100
members...

Some current Republican leaders -- citing comments by then-Sen. Robert P.
Griffin (R-Mich.), who led the Fortas opposition -- say the 1968 debate was not
a true filibuster. But there is little in the record to support that assertion.
The Washington Post reported on Oct. 2, 1968: "In a precedent-shattering rebuff
to the Administration, the Senate yesterday refused to cut off the filibuster
against consideration of Abe Fortas to be Chief Justice." The Congressional
Quarterly Almanac reported in 1968: "The effort to block the confirmation by
means of a filibuster was without precedent in the history of the Senate." The
Senate Web site's account of the episode is headlined "Filibuster Derails
Supreme Court Appointment."

But such assertions are unproven at best, and certainly subject to
challenge based on the record. It is impossible to gauge the exact support for
Fortas because 12 senators were absent for the "cloture" or "closure" vote,
which failed to halt the filibuster. The 45 to 43 vote in favor of ending debate
fell far short of the needed two-thirds majority.

Some Fortas backers, including Johnson, said the vote suggested that a slim
majority favored him. The disappointed president "feels there is a majority in
the Senate in favor of the nomination," his spokesman said shortly after the
defeat.

Anecdotal evidence suggests, but does not prove, that a majority of
senators may have backed Fortas or been undecided when the debate began. An
Associated Press head count found that 35 of the 100 senators "are now committed
against voting for closure," the New York Times reported. That suggested that as
many as 65 senators conceivably were open to voting on the nomination.

Then-Sen. Howard H. Baker Jr. (R-Tenn.), a Fortas opponent, also hinted
that his side felt it lacked a majority. Defending the newly launched
filibuster, Baker said: "On any issue the majority at any given moment is not
always right."...

The strongest evidence that anti-Fortas senators were not confident of
commanding a majority is the fact that they fought so tenaciously to keep the
confirmation from reaching a vote, says Norman J. Ornstein, a congressional
scholar who has written extensively on the Fortas matter. Ornstein, of the
American Enterprise Institute, said: "This was a filibuster. It was intended to
keep the nomination from moving forward for the remainder of that term."
Frist and others who now threaten to ban filibusters of judicial nominees,
Ornstein said, "are trying to provoke a change that isn't defensible through
history."

Frist sometimes speaks of the current judicial impasse in terms that take the
Fortas case's complexities into account. "Never before in the history of the
Senate has a nominee with clear majority support been denied an up or
down vote on the Senate floor because of a filibuster," Frist said
Tuesday.