The Corner

Law & the Courts

Re: Your Rules, Democrats

In response to Not a Fan, Apparently

Kevin — in noting that the Democratic party is now calling for the Republican Senate to follow the “norms” that they themselves have shattered, you write:

The ur-example, of course, is the case of Robert Bork. The Democrats’ craven, despicable, lying campaign against Bork announced the arrival of Supreme Court confirmation hearings as bare-knuckle political brawls. There was no question that Bork was well-qualified for the position – he was one of the great legal minds of his time. Democrats simply did not like his view of the law and the Constitution.

This is exactly right. But I think, if anything, you understate the case. The argument that I have heard since Scalia’s death was announced goes something like this: “If Obama’s nominee is qualified and accomplished, he should be approved. Let’s hear no talk of the ‘balance of the Court’; that is an idea that the Right is now inventing for its own benefit. Besides, many of Obama’s potential nominees have been approved for other positions already; is the Republican Senate really going to suggest that they are unsuitable now?”

Or, as Paul Waldman puts it in a post that fails to mention Bork’s name even once while decrying the mystical changes that have apparently wrecked the process:

The Senate, in all its august wisdom, used to approach nominations to the Supreme Court with a simple standard: If the nominee was qualified and wasn’t a criminal or a drunk, he or she would probably get confirmed with the support of both the president’s party and the opposition.

Really? Because Bork met this standard perfectly. He was a respected academic who had oodles of legal experience. He had been unanimously approved by the Senate as both Solicitor General (in 1973), and as a circuit judge for the United States Court of Appeals for the District of Columbia Circuit (in 1982, by voice vote). And he had been suggested as a potential Supreme Court justice since the early 1970s. And yet . . .

Even worse, the Democratic Senate killed his appointment with precisely the same reasoning that is now held to be beyond the pale. Bork, the Democratic majority argued, was politically unacceptable. Moreover, it was submitted that to replace Justice Powell with a judge whose philosophy differed so starkly would be to upset the Court’s delicate balance.

Give me a break. 

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.

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