I concur wholeheartedly with Kevin, after watching the character assassination of Robert Bork, it’s simply impossible to take seriously Democratic demands for senatorial deference to President Obama’s Supreme Court pick. The first lesson from Bork’s confirmation battle was that the “old rules” no longer applied – to the extent they ever truly did. Senators can and should impose constitutional litmus tests on judicial nominees.
The second lesson, however, is perhaps more important — a successful nomination fight can have generational consequences. Progressives play the long game, and by defeating Bork they transformed the Supreme Court far beyond the considerable impact of Bork’s replacement, Anthony Kennedy. Bork’s defeat has haunted Republican presidential candidates ever since, leading them to nominate “stealth nominees” (Justice David Souter, for example) or to sideline the best-qualified conservatives in favor of those who they believe can survive the inevitable Democratic onslaught. In a nutshell this is why Republican presidents have enjoyed far less success in influencing the philosophical direction of the court than their Democratic counterparts.
It is still remarkable that the Senate confirmed Justice Ginsburg – a woman every bit as liberal as Bork was conservative — by a pathetic, “we surrender” margin of 96-3. Indeed, Republican resistance to the “living Constitution” can be summed up in four vote totals: 96-3 (Ginsburg), 87-9 (Breyer), 68-31 (Sotomayor), and 63-37 (Kagan). While Republicans have learned to roll over more respectably (their token resistance at least looks better on paper), they have yet to put Democratic presidents in the same predicament Republican presidents have been in since 1987.
Successful nomination fights don’t just stop one justice, they can alter every nomination battle to come. Conservatives know this well. It’s time to make the Left walk a mile in our shoes.