Senate Republicans know exactly what they want to do: maintain a blockade against any President Obama nominee for the Supreme Court. What GOP senators don’t know is how to defend their scheme.
I received an email yesterday from a conservative reader responding to a piece on Republicans abandoning traditional norms with their radical tactics. His response read, “Two words: Robert Bork.” As Media Matters’ Eric Boehlert noted, there’s apparently a lot of this going around.
“Democrats have been blowing up the appointment process piecemeal since they turned Judge Robert Bork’s last name into a verb back in 1987,” wrote Jonah Goldberg in the Los Angeles Times, in a column about the fight over replacing Scalia.“Look at what the Democrats have done in poisoning the well, particularly on judicial nominations, stretching back to 1987 and the character assassination against Robert Bork,” complained Townhall political editor Guy Benson on Fox News.
The problem with the comparison is that the two examples just don’t have much in common – or at least not as much as Republicans and their allies would like to believe.
As longtime readers may recall, Bork was a Reagan nominee for the Supreme Court in 1987, and he became one of the most controversial choices in American history. Shortly after the president’s announcement, Sen. Ted Kennedy (D-Mass.) delivered a famous condemnation on the Senate floor: “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, school children could not be taught about evolution, writers and artist could be censured at the whim of government.”
It was a stinging indictment, based largely on fact. Bork, who developed an unfortunate reputation stemming from his role in Nixon’s “Saturday Night Massacre” in 1973, was on record defending Jim Crow-era poll taxes, condemning portions of the Civil Rights Act banning discrimination in public accommodations, and arguing against extending the equal protection of the 14th Amendment to women.
As we discussed several years ago, the ensuing fight marked a turning point in the confirmation wars. It was during consideration of Bork that senators largely decided it wasn’t enough to merely consider a Supreme Court nominee’s qualifications; they also had to consider whether he or she was ideologically and temperamentally suited for the bench.
In Bork’s case, it was a test he failed. When his nomination reached the Senate floor, 58 senators, including six Republicans, voted to reject him. (After the vote, Strom Thurmond, of all people, urged the Reagan White House to nominate someone less “controversial.”) The Republican president soon after nominated Anthony Kennedy, who was confirmed by the Democratic-led Senate, 97 to 0.
Nearly three decades later, the left looks back at the results as a victory for civil rights and modernity. The right still see the dispute as the first modern example of mean liberals blocking a qualified conservative from reaching the high court.
That argument will probably continue for a while, but to suggest this is comparable to the contemporary fight is a stretch. If the Senate Democratic majority had announced that no Reagan nominee would be considered under any circumstances, regardless of merit, conservatives would obviously have a reasonable case to make.
But that’s not what happened. Reagan nominated a radical, and Democrats considered the nomination in committee and on the Senate floor. There was no filibuster, in part because the era of filibustering everything and everyone had not yet begun, and in part because it wasn’t necessary – there was bipartisan opposition to giving Bork a lifetime appointment to the highest court in the land.
A little tidbit: more Republicans voted against Bork’s nomination in 1987 than voted for Justice Elena Kagan’s nomination in 2010. (Six Republicans opposed Bork; five Republicans supported Kagan.) It’s the sort of thing that adds some context to the trajectory of GOP politics.
How is the Bork example relevant to the 2016 dispute? At a superficial level, both involve a Supreme Court vacancy at a time of divided government. But after acknowledging that, the similarities effectively end – the Bork controversy was about one person, who was deemed unacceptable by a bipartisan majority, but who was followed by another nominee was easily confirmed. The current controversy is about a party imposing a blockade on any nominee, sight unseen, because the party hates a democratically elected, two-term president.
Boehlert’s conclusion rings true: “If conservatives can put forward a common sense argument why Obama should ignore his constitutional obligation to replace Scalia on the Supreme Court, they ought to detail that argument. Because pretending today’s crisis is just like the Bork battle only highlights the holes in the GOP proposal.”