“I’ve recently read the relevant parts of a biography of Fortas written many years ago that includes a variety of citations to contemporary sources indicating that Griffin etc. were running a filibuster. They acknowledged it. Everyone knew it. It was part of the political conversation at the time. If we Republicans are going to say that, say, [Janice Rogers] Brown suffered due to a filibuster after 6 hours of floor debate, then certainly the same is true of Fortas after 4. And back then, a vote against cloture wasn’t necessarily a vote against the nominee. Some opposed cloture on principle b/c they wanted unlimited debate.
“This majoritarian argument has some appeal . . . but it doesn’t square . . . with the contemporary argument about what was happening.”