Reports of the death Thursday of former Senate Republican Whip Robert Griffin, R.-Mich., at age 91 did focus on a noteworthy achievement in a career rich with accomplishment: how Griffin in 1968, then a freshman senator in the minority, led the successful filibuster that kept President Lyndon Johnson's longtime ally, Abe Fortas, from becoming chief justice.
The "Fortas fight" had many far-reaching consequences. It is widely considered the genesis of the modern "judge wars" in the Senate which continue to this day. Senate Republicans have held up several controversial Obama nominees to the federal appellate court by denying them hearings before the Judiciary Committee.
Throughout George W. Bush's presidency, Senate Democrats used the filibuster to block several appointees to the U.S. Court of Appeals until a compromise worked out among senators of both parties (the "Gang of Fourteen") permitted up-or-down votes after several years.
The Bush appellate nomination to languish the longest was, ironically, Richard A. Griffin, a Michigan Court of Appeals judge and son of former Sen. Griffin. Named to the Sixth District Court of Appeals by Bush on June 26, 2002, the younger Griffin was finally confirmed by the Senate as part of the "Gang of Fourteen" deal on June 6, 2005.
More than a few old Senate hands believe the unusual delay in dealing with Judge Griffin was payback from Democrats for the role his father played in keeping Fortas from becoming chief justice in 1968.
When Chief Justice Earl Warren stunned the nation with his resignation in June 1968, President Johnson (who had two months earlier said he wasn't seeking re-election) responded with an equally stunning action: the naming of Associate Justice Abe Fortas, a friend of the president since New Deal days, to succeed him.
To fill Fortas' slot as an associate justice, the president named fellow Texan and political protégé Homer Thornberry, a federal judge who had once held the Austin-area U.S. House seat once held by LBJ.
"No one outside knows accurately how many times Abe Fortas has come through the back door of the White House, but any figure would probably be too low," reported Time magazine. In "Means of Ascent," historian Robert Caro spells out in detail how Fortas crafted the legal strategy for then-Rep. Johnson for him to stop an effort to overturn his controversial 87-vote win of the Democratic U.S. Senate nomination in Texas — "the 87 votes that changed history," wrote Caro.
"Sen. Bob Griffin of Michigan had stepped out in front and declared he would not vote to confirm anyone in 1968, that any nominations should be made by the president elected in November," Pat Buchanan, then an aide to Republican presidential hopeful Richard Nixon, later wrote in "The Greatest Comeback." "On June 22, I had memoed Nixon that he might at least say that Griffin's stand was a 'good idea. … '"
In taking the action he did, freshman Sen. Griffin broke with his own Senate Republican Leader, Everett Dirksen of Illinois.
For Fortas, the charges of cronyism and his appointment by a president who would soon be out of office were only part of what fueled the opposition. James J. Clancy, head of the Roman Catholic group Citizens for Decent Literature, testified against Fortas for casting the "deciding" fifth vote reversing lower court obscenity rulings 49 of 52 times and caused, in his words, a "release of the greatest deluge of hard-core pornography ever witnessed by any nation."
Sen. Strom Thurmond, R-S.C., a Judiciary Committee member, hammered the nominee for chief justice for his ruling in "Mallory vs. the United States," in which, as he put it, "a criminal, a convict a guilty man, who committed a serious rape on a lady in this city" was released ... "because the Court said they held him a little too long before arraignment."
Thurmond's office later arranged for a closed-door viewing for senators of "Flaming Creatures," a transvestite pornographic film that Fortas had ruled in "Jacobs vs. New York" did not violate obscenity laws.
In later years, Democrats such as Vice President Al Gore would challenge Republican claims that they never filibustered a nominee by pointing to Griffin's filibuster against Fortas. But this was a filibuster backed by senators from both parties.
Sen. Russell Long, D-La., told reporters that after seeing one "Fortas film, I have seen enough." Sen. Frank Lausche, D-Ohio, agreed, vowing he would not "vote for a man who would approve the films."
On Oct. 1, 1968, the Senate took a vote on cloture (to end a filibuster and force a vote) on Fortas' nomination. The nomination needed 67 votes and got only 45. Fortas asked the president to withdraw his nomination. The next chief justice would be named by the president elected in November.
For his efforts, Griffin was elected Senate Republican whip in 1969. That year, he broke with friend Nixon over the Republican president's nomination of Clement Haynsworth to the Supreme Court because of the South Carolinian's controversial financial deals. Beaten by one vote for Senate leader by Howard Baker in 1977, Griffin was defeated for re-election a year later and went on to serve as Michigan's Supreme Court chief justice.
But his most memorable role in history remains that of the judicial filibuster in 1968.
Without his breaking with leadership, without his tenacity and belief the nomination was wrong, a "Chief Justice Fortas" would have happened and history might well have been very different.
John Gizzi is chief political columnist and White House correspondent for Newsmax.
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