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On April 27, speaking on the Senate floor, Senator Hatch repeated his error. He said, "Some have said that the Abe Fortas nomination for Chief Justice was filibustered. Hardly. I thought it was, too, until I was corrected by the man who led the fight against Abe Fortas, Senator Robert Griffin of Michigan."
Hatch then asserted that the former Senator told him, and the Senate Republican caucus, "that there never was a real filibuster because a majority would have beaten Justice Fortas outright." (Emphasis added.)
The evidence is overwhelming, however, that there was indeed, a filibuster, and that it was very real.
What Really Happened in 1968: A Republican Filibuster of Justice Fortas
Below, I have set forth the contemporaneous record, so readers can judge for themselves. While I have cited only the New York Times, similar reports are found in The Washington Post and The Los Angeles Times.
On June 22, 1968 the New York Times' front page headline reported: Chief Justice "Warren To Leave Court; Some In GOP Open Fight To Bar A Succession In '68." The third paragraph of the story stated, "Two Republican Senators, Robert P. Griffin of Michigan and John G. Tower of Texas, said in Senate speeches that they would fight any effort by [President] Johnson, a 'lame duck' president, to name a new Chief Justice in the fading months of his term."
Three days later, on June 25, 1968, the New York Times reported "19 In The Senate Study Filibuster: All in GOP."
The opening paragraph stated that a "determined bloc of Republicans threatened a filibuster today as they stepped up their fight against confirmation of President Johnson's appointments to the Supreme Court." The story noted, however, that the 36 Republicans in the Senate were split, with their leader Senator Everett Dirksen favoring the Fortas appointment. It also explained that Southern Democrats were likely to join the opponents. The article stated that the "possibility of a filibuster was raised late today by Senator Robert P. Griffin of Michigan," although no final decision had been made.
By June 28, 1968, the New York Times reported that "Plans for a filibuster were announced by Senator Robert P. Griffin, a Republican of Michigan. 'I am prepared to talk at great length,' he said. Asked if there was a difference between talking at length and a filibuster, he replied, 'No difference.'" In a related story that same day, another Times reporter wrote that the Republicans "promised a filibuster, if necessary, to block the confirmation" of Fortas.
As the Senate confirmation hearings on Fortas progressed, Senator Griffin even lashed out at his party's standardbearer in the presidential race, chastising Richard Nixon after he said that he opposed the filibuster of Fortas. The New York Times headline on September 14, 1968, stated "Griffin Rebukes Nixon for Stand Opposing a Filibuster on Fortas." The story revealed that Nixon was not supporting Fortas, rather "he opposed all filibusters, the anti-Fortas one included."
The September 14 Times story also predicted that Fortas would likely get confirmed -- notwithstanding the protracted and perhaps brutal hearings that had occurred during the summer. There, Fortas had been attacked by Republicans and Southern Democrats, principally for his cronyism with Lyndon Johnson and his rulings as an Associate Justice that tolerated "pornography" on First Amendment grounds. The Times reported that, nonetheless, "Informal polls in recent weeks have shown that a majority of Senators now favor confirmation of Justice Fortas. Opponents believe that only by staging a filibuster can they block confirmation."
When the Senate Judiciary Committee, by a vote of eleven to six, approved the Fortas nomination, the September 18, 1968 New York Times reported "Fortas Approved By Senate Panel; Filibuster Looms." The story said that the committee's "action set the stage for a filibuster on the Senate floor next week." Because the filibuster had gained momentum, the story added, Fortas's prospects for confirmation were becoming increasingly doubtful. "Even the supporters of the nomination have expressed doubt they can muster the two-third vote necessary to cut off debate on the floor," according to the Times.
Finally, this story indicated that when the Fortas nomination arrived on the Senate floor, "it will be met with a lead-off filibuster speech by Senator Griffin, followed by speeches by Senator Howard H. Baker, Jr. of Tennessee and others among the 18 Republicans who have joined the anti-Fortas effort."
(In noting that the effort was eighteen men strong, the Times was doubtless underlining that the GOP had the manpower necessary to mount a filibuster. In those days, the Majority Leader could force a filibuster to go around the clock, so it would not tie up other Senate business indefinitely.)
As the nomination headed to the Senate floor, the vote count was still not clear. The "Associated Press survey released today" -- the September 18th Times story also reported - "found 47 Senators favoring confirmation of Mr. Fortas and 27 opposed. Twenty-two described themselves as uncommitted and four were not reached."
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