Please Treat Obama’s Nominee Like Bork

If you want to read what the National Review crew thinks about Antonin Scalia and the coming nomination fight, there are now more than a dozen articles up over there to pick from. I’m picking just one of them here. Charles C.W. Cooke’s piece is typical, however, in that it relies heavily on perhaps the most sustained example of butthurt in the history of our Republic. Namely, these folks are still spitting mad that Robert Bork wasn’t confirmed as a Supreme Court Associate Justice back in 1987.

I’ll just cite Cooke’s summation and then we can discuss:

My view, which I’m happy to share, is that the Senate has a responsibility to make sure that only suitable judges are elected to the Supreme Court, and if one is not an originalist one is not a suitable judge. That position may make me unpopular — and it’ll certainly make me unhappy; let’s face it, I’m not going to get my way very often — but there it is.

Now, I am happy to be told that I am a monomaniac or that I am a fool or that politics doesn’t work like that, and I’m happy to suffer any slings and arrows that are thrown my way in consequence. But I am not going to sit here and watch in silence as history is rewritten. The Bork case is utterly devastating to the idea that objecting to a nominee on the basis of his philosophy is outré. Conservatives should make sure to bring it up over and over and over again.

That’s a simple articulation of a hardline position on any Republican senator voting for any Democratic nominee to the Supreme Court, ever. In fact, it would implicate many Republican nominees, too, I expect.

But he wants the Republicans to bring up Robert Bork over and over again to justify their actions in opposing any nominee that Obama might send up. So, we might want to look at some facts.

Ronald Reagan nominated Robert Bork on July 1st, 1987, despite being specifically warned against it by the Democrats. Nonetheless, Bork’s nomination was taken up in a timely fashion by the Senate Judiciary Committee, which was then chaired by Joe Biden who also happened to be running for president and hardly needed the headache of dealing with uncompromising liberal activist groups. Perhaps Biden’s ambition played some role in how he conducted himself, but Bork received a hearing.

On October 6th, the Judiciary Committee voted 9-5 to reject Bork’s nomination, which in the ordinary course of events would have meant that Bork received no further consideration- no full floor debate and no final confirmation vote.

That’s not what happened though. Bork refused to withdraw his name from consideration and penned an open letter explaining why. It read, in part:

Were the fate of Robert Bork the only matter at stake, I would ask the President to withdraw my nomination.

The most serious and lasting injury in all of this, however, is not to me. Nor is it to all of those who have steadfastly supported my nomination and to whom I am deeply grateful. Rather, it is to the dignity and the integrity of law and of public service in this country.

I therefore wish to end the speculation. There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions.

But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees.

For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored. In the days remaining, I ask only that voices be lowered, the facts respected and the deliberations conducted in a manner that will be fair to me and to the infinitely larger and more important cause of justice in America.

The Democrats acceded to his demand for “a full debate and a final Senate decision.”

On October 23rd, the full Senate rejected Bork’s nomination in a 42-58 vote.

The Republicans who voted against Bork were John Chafee of Rhode Island, Bob Packwood of Oregon, Arlen Specter of Pennsylvania, Robert Stafford of Vermont, John Warner of Virginia, and Lowell P. Weicker of Connecticut. Two Democrats, David Boren of Oklahoma and Ernest ‘Fritz’ Hollings of South Carolina voted to confirm him.

Now, whatever you think of Robert Bork, it’s clear that the Senate considered him. They asked Reagan not to nominate him, but Reagan was spoiling for a fight. They didn’t respond by refusing to give him a hearing. In fact, even though the Judiciary Committee rejected his nomination, they still allowed a full debate and a vote by the whole Senate.

It wasn’t necessary to stop his confirmation, but there was no filibuster.

And the vote was bipartisan. It wasn’t just liberal Democrats who found Bork beyond the pale. It was also six Republicans, including John Warner who would later serve as part of the Gang of 14 that dissuaded the Bush administration from using the nuclear option.

Bork was clear at the time that he expected to be given the courtesy of a full debate and a vote despite knowing that his chances of being confirmed were very low.

Finally, as Nancy noted earlier, Bork’s replacement, Anthony Kennedy, was confirmed 97-0.

So, remember all these facts when you’re told that the Republicans are only giving the Democrats payback for Bork.

If they give Obama’s nominee the same treatment that the Democrats gave Bork, we’ll have a full debate and an up-or-down vote.

And I think that’s what Bork would have wanted, unless his principles changed in the intervening thirty years.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.