In an effort to justify their insistence that a Supreme Court vacancy be left open for more than a year, without a vote or hearing on a replacement, conservatives are calling up painful memories of what happened to the Supreme Court nomination of conservative jurist Robert Bork almost 30 years ago.
I can certainly see the parallels. In fact, they’re uncanny.
Bork, for example, received a full and lengthy examination of his judicial record and public writings. Even after the Senate Judiciary Committee voted against his confirmation, the panel allowed the constitutional process to play out completely. At Bork’s request, it sent the nomination to the Senate floor, where it was debated and finally rejected by a vote of 58-42, the largest margin of defeat for a judicial nominee in the country’s history.
That’s exactly like the current case, in which the Senate refuses to even consider an Obama nominee, even without knowing who that nominee might be.
Likewise, the Senate vote against Bork was bipartisan, with six Republican senators agreeing that Bork was too far out of the legal mainstream and with two Democrats voting in favor of his confirmation. That’s exactly like the current case, in which — as we all know — the Republican refusal to act is motivated not at all by crass partisanship. In fact, it is divisive and hurts their feelings to even suggest such a thing.
But I’m going to suggest it anyway: Yes, it is motivated by partisanship, and also by a deep Republican animus against the man twice elected by the American people to be their president. But again, the parallels with the Bork case are uncanny. Clearly, Democratic senators voted against Bork back in 1987 not because of Bork himself, but because they hated Ronald Reagan and wanted to make sure that the Gipper didn’t get to name another justice before his second term expired. This is just payback.
Of course, after rejecting Bork, that same Senate acted out its anger again by voting 97-0 to confirm another Supreme Court nominee by Reagan. That person, Justice Anthony Kennedy, was sworn into office on Feb. 18, 1988, 28 years ago to the day. In an election year.
In the Bork case, those who voted against his confirmation could cite multiple reasons for doing so. Bork believed that government’s power over the individual was so extensive that it could reach into the bedroom and ban the sale or use of contraceptives, even by married couples. He argued that people had only those rights that were explicitly granted to them by the government, in direct contradiction to the founding fathers who spoke and wrote often of natural rights and inalienable rights beyond those listed in the Bill of Rights.
Bork also believed that in its role as defender of the culture, government could censor viewpoints that it believed to be dangerous or corrosive to public morals. As he later explained in his book “Slouching Towards Gomorrah”, “Sooner or later censorship is going to have to be considered as popular culture continues to plunge to ever more sickening lows.” Bork specifically backed government censorship “starting with the obscene prose and pictures available on the Internet, motion pictures that are mere rhapsodies to violence, and the more degenerate lyrics of rap music.”
He wanted to give Congress the right to overrule court rulings it did not like. He had also opposed the Civil Rights Act, arguing that businesses that wanted to discriminate on the basis of race had every right to do so, and a law banning such discrimination was “a loss in a vital area of personal liberty,” He had argued in favor of allowing poll taxes — charging people for the right to vote. He dismissed the notion each person’s vote should be given equal weight, arguing that it was just fine if the “county unit system” in Georgia and other places gave rural voters 10 times the political power of voters in densely populated urban areas such as Atlanta.
Again, the parallels with the current situation are obvious. Just like Democrats did 29 years ago, Republicans are refusing to even allow a Senate hearing for a nominee — any nominee — because they already know that this unknown nominee’s unknown credentials, unknown judicial background and unknown legal theories are too far out of the American mainstream to even be heard, let alone voted upon.