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Image: 1987 Robert Bork nomination hearing
U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee on the first day of his confirmation hearings on Capitol Hill, Sept. 16, 1987. Bork's message to the committee was that he was neither liberal nor conservative. Charles Tasnadi / AP, file

The GOP doesn't remember the Bork nomination as well as it should

If Republicans want to understand the "judicial wars," they should stop looking at Robert Bork and start looking in the mirror.


Republicans on the Senate Judiciary Committee advanced Judge Amy Coney Barrett's Supreme Court nomination yesterday, but first they spent some time pretending that Democrats are to blame for the ongoing "judicial wars."

Sen. Mike Lee (R-Utah) -- whom Donald Trump has said he'd consider for the high court in a second term -- was in high dudgeon, pointing specifically to developments in 1987.

"For the first 200 years of the history of our Republic, Supreme Court nominations of both political parties were almost always polite and even boring, relatively nonpartisan, nonpolitical affairs. Judicial nominees were examined for their qualifications, and rejected by the Senate only in relatively rare instances. But that era of generally common mutual respect ended in 1987 when a Democratic-controlled Senate shamefully and slanderously defeated the nomination of one of the country's most respected lawyers and constitutional scholars. That is Judge Robert Bork."

Soon after, Judiciary Committee Chairman Lindsey Graham (R-S.C.) reflected on the intensity of the conflicts over judicial nominees. "What the hell happened? It wasn't us," the South Carolinian said, referring to his party. Graham added that everything changed "with Bork."

This afternoon on the chamber floor, Senate Majority Leader Mitch McConnell (R-Ky.) made the same argument.

I don't think Republicans remember what transpired in 1987 nearly as well as they think they do.

For those who may need a refresher, let's revisit some of our earlier coverage. Justice Lewis Powell announced his retirement in 1987, and Ronald Reagan soon after nominated Bork. He was immediately seen as one of the most controversial choices in American history.

Indeed, 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.

If contemporary Republicans want to argue that the fight over Bork's nomination was extraordinary and historically significant, that's true. 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.")

But for GOP senators to argue nearly four decades later that this somehow did irreparable harm to the confirmation process is difficult to take seriously. In fact, after Bork's nomination faced bipartisan opposition, Reagan nominated Anthony Kennedy, who was confirmed by the Democratic-led Senate, 97 to 0. Another nominee from a Republican White House -- David Souter -- was also confirmed unanimously three years later by a Democratic-led Senate.

Three years after that, Ruth Bader Ginsburg was confirmed 96 to 3. Stephen Breyer was confirmed a year later, 87 to 9.

If GOP senators were right, and the Bork ordeal fundamentally broke an important Senate function, these examples wouldn't exist.

What's more, let's not brush past the fact that Bork was given an opportunity: the Democratic-led Senate held full hearings, heard from the nominee, and afforded him an up-or-down vote on the floor. Senators from both parties reached an obvious conclusion: Bork was simply too extreme.

In 2016, Republicans denied all of this to Merrick Garland -- not because he was a radical ideologue with an indefensible record, but ostensibly because considering a qualified nominee within eight months of an election was deemed impossible, even as they now prepare to confirm Barrett eight days before Election Day.

If Republicans want to understand the "judicial wars," they should stop looking at Robert Bork and start looking in the mirror.