Nine men and women have been confirmed to the Supreme Court in the nearly 29 years since the Senate rejected President Ronald Reagan’s choice of Judge Robert H. Bork. Eight of them (all but the retired David H. Souter) are still serving. History, one might suppose, has moved on.
Still, the battle over the Bork nomination is the memory Republican politicians and conservative commentators and interest groups reach for to justify the decision to block any Obama Supreme Court nominee. “It started in 1987, when Senate Democrats launched an all-out assault against the nomination of Judge Robert Bork,” Sen. John Barrasso, Republican of Wyoming, said on the Senate floor earlier this month. “Democrats have been blowing up the appointment process piecemeal since they turned Judge Robert Bork’s last name into a verb back in 1987,” the columnist Jonah Goldberg wrote in National Review.
In other words, the message to Democrats is: You did it to one of ours, so now we’ll do it to one of yours. Really? To Merrick B. Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, who after two decades on the bench is one of the country’s most respected and experienced federal judges?
Bring it on.
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Even allowing for fading memories, there is a good deal of misinformation being thrown around about what actually happened in 1987. “Senate Democrats and a few Republicans united to filibuster the nomination,” according to a recent story in the conservative Washington Examiner. Not so. It was as far from a filibuster as is possible to imagine. Despite having voted 9 to 5 to reject the nomination, the Senate Judiciary Committee sent Bork’s name to the Senate floor for an up-or-down vote, which the White House and the nominee insisted on. The vote was 58 to 42 to reject the nomination. There was never the hint of a filibuster.
What he said
The confirmation hearing itself, presided over by Joseph R. Biden Jr., then a senator and the chairman of the Judiciary Committee, lasted for a spellbinding week. The senators questioned Bork extensively about his academic writing, his speeches and his opinions for the U.S. Court of Appeals for the District of Columbia Circuit, to which President Reagan had appointed him (along with Antonin Scalia) as a justice-in-waiting. Bork answered their questions, at length. His problem wasn’t that he didn’t get a chance to explain himself. It was that a majority of the Senate, including six Republicans who voted against him, didn’t like what he said.
The Democratic opposition, supported by a broad coalition of civil rights groups, worked hard to position Bork as “out of the mainstream.” To this day, his supporters – the man himself died in 2012 – insist that the characterization was unfair. But the “mainstream” has no fixed definition in any event. It is the product of lived experience, always up for grabs as norms and expectations change. To the extent that the Supreme Court plays a role in shaping the mainstream, it is most often the role of a mirror, reflecting those developments in society and politics that are sufficiently contested to end up in litigation. (Think same-sex marriage.)
At its heart, the Bork battle was really a struggle over where, in the last quarter of 20th-century America, the mainstream of constitutional understanding was to be found. The confirmation process became a referendum on the constitutional status quo; as brilliantly formulated by the Bork opposition, the question was whether the public wanted to “turn back the clock” on women’s rights and the hard-won achievements of the civil rights movement. By speaking derisively about the constitutional right to privacy, the nominee played into the opposition’s strategy, which was to avoid a debate over abortion by using the less polarizing “privacy” as a stand-in. Clearly, Bork regarded Roe v. Wade as illegitimate. The campaign against him was intended to suggest that his views threatened other rights to intimate choices that people took for granted regardless of their views on abortion.
The seat intended for Robert Bork went eventually to Anthony M. Kennedy, who was to assume his own role in helping define a new mainstream. (Think same-sex marriage again.) Now there’s a new battle over the mainstream, what we might call the confirmation-process mainstream. It began within hours of Scalia’s death last month, with Sen. Mitch McConnell’s declaration that there would be no hearing for any Obama nominee – a pledge that the Republican leader soon expanded to include no courtesy visits either: 54 closed doors. The administration pushed back: When it comes to Supreme Court nominations, that’s not how it’s ever been done. Meet with the nominee. Give the nominee a hearing. Give the nominee a vote.
The president might even say: Remember Robert Bork? Treat my nominee in the same way. Have a conversation and let the public in on it. Of course the president and his allies know that’s exactly the public conversation that the Republicans fear, because it was clear from the first moment that any Obama nominee would inhabit the constitutional mainstream much more securely than either Bork or Scalia – whose “originalist” philosophy never gained more than a toehold at the court – ever did. Now with the nomination of Garland, there is not the shadow of a doubt. The only way the Republicans can come out ahead in a public conversation about this particular nominee is by not having it. The Bork Battle all over again? Be my guest.
The New York Times