Bench Memos

The Legacy of Borking

I don’t think anyone around here has noted that today is the twentieth anniversary of the 58-42 vote of the U.S. Senate to reject Ronald Reagan’s nomination of Robert Bork to the Supreme Court.  [Correction: Of course Ed noted this anniversary yesterday, in “This Week in Liberal Judicial Activism.”]  My friend Gary McDowell has an excellent article in today’s Wall Street Journal on the lasting significance of that day of senatorial infamy.  As McDowell writes, “In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench.”  Instead, terrified at the prospect that their grasp on political power through the medium of the judiciary might begin to slip away, “Mr. Bork’s opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.”

McDowell is right that we have paid a high price for the “fundamental transformation,” in the Bork battle, of the standards that had guided the conduct of participants in the judicial appointment process.  Not that previous appointments had always conformed to some coolly rational, neutrally professional set of norms among presidents and senators (and McDowell, once a student of Henry Abraham, our wisest historian of confirmations, knows this perfectly well).  But this is surely true: “Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads.”

All that being said, I’ll note something McDowell doesn’t say (and I don’t know that he’d endorse).  A politicized appointment process is where we are, and where we’ll stay until what McDowell calls a “war for the Constitution” is won.  That means that the nominees of Democratic presidents must receive the closest scrutiny of senators who want to rescue the Constitution from the judiciary.  When McDowell notes the politicized confirmation battles from Bork to Thomas to Alito, what is conspicuously missing are the only nominations any Democratic president has had since Lyndon Johnson–the Clinton nominations of Ruth Bader Ginsburg and Stephen Breyer.  Arriving as they did on the field scorched by the fires of the Bork and Thomas nominations, these nominations were greeted by Republicans who should have done their best, even from the position of the minority party, to make the case against confirmation, but who instead offered only emollient noises–and votes to confirm.

Ginsburg and Breyer personify the “living” Constitution approach to which Robert Bork declared the opposition that cost him a seat on the Court.  This was known about them at the time.  Their appointments should have been defeated, in the name of a de-politicized Constitution.  And if defeat was not possible, then enunciating principled opposition would still have been useful.  Republicans in 1993 and 1994 had the crazy idea that something could be gained by soothing words and easy treatment of the nominees.  But what was needed then and is needed now is political partisanship on behalf of a Constitution that stands above, and neutrally between, parties and ideologies.  We will never, in our lifetimes, see such high-minded partisanship out of the Democratic Party.  Whoever is in control of the White House and the Senate in years to come, we need the Republican Party to prosecute the war for the Constitution, not to perpetually remain on defense.  Too much is at stake to play beanbag.

In short, bring on the litmus tests.