Joe Nocera has a column in the New York Times that notes that it is the 24th anniversary of the defeat of Robert Bork’s nomination to the Supreme Court. He uses the occasion to blame the current breakdown of comity in Washington on the Democrats’ decision to reject Bork.
I bring up Bork not only because Sunday is a convenient anniversary. His nomination battle is also a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be — and have been — every bit as obstructionist, mean-spirited and unfair.
I’ll take it one step further. The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.
Now, he says that rejecting Bork was “obstructionist, mean-spirited, and unfair.” The latter two adjectives are a matter of subjective opinion. Were the Democrats mean and unfair to Bork? Maybe, maybe not. But what they definitely were not is obstructionist. Robert Bork’s nomination was not filibustered. There was unanimous consent, meaning all 100 senators agreed to move to a vote on his nomination. The Senate then voted 58-42 not to confirm him, with six Republicans voting against him and two Democrats voting for him.
I’d also note one more thing. Ordinarily, when it becomes clear that a nominee is not going to be confirmed, they will withdraw from the process rather than force the issue. Remember that after Bork was voted down, Reagan’s next nominee, Donald Ginsburg, withdrew his name after it was revealed that he had smoked a lot of pot as a younger man. Bork didn’t do that. He felt defiant and so he forced the Senate to have a vote.
I suppose the reason the right was so incensed by Bork’s defeat is because he had a strong resume. He was rejected because of his right-wing ideas. Therefore, the right felt justified in the future in rejecting the judicial nominees of Democratic presidents based solely on their left-wing ideas. And that has contributed to the poisoning of the well in Washington.
Remember that the year before Bork’s nomination Antonin Scalia was confirmed 98-0. Obviously, something significant changed after Bork. But the Democrats did not obstruct his nomination. They defeated it. And let’s listen to Bob Dole. Here he is, discussing the Nuclear Option back in 2005.
When I was a leader in the Senate, a judicial filibuster was not part of my procedural playbook. Asking a senator to filibuster a judicial nomination was considered an abrogation of some 200 years of Senate tradition.
To be fair, the Democrats have previously refrained from resorting to the filibuster even when confronted with controversial judicial nominees like Robert Bork and Clarence Thomas. Although these men were treated poorly, they were at least given the courtesy of an up-or-down vote on the Senate floor. At the time, filibustering their nominations was not considered a legitimate option by my Democratic colleagues – if it had been, Justice Thomas might not be on the Supreme Court today, since his nomination was approved with only 52 votes, eight short of the 60 votes needed to close debate.
Unlike Bork, for whom no filibuster was necessary to prevent his confirmation, Clarence Thomas’s nomination could have been defeated through procedural obstruction. Even in the face of compelling questions about his moral rectitude, the Democrats refrained from resorting to the filibuster. Perhaps if Thomas hadn’t made the Democrats regret their decision so much they wouldn’t be willing to filibuster judicial nominees today.
The truth is that the toxicity in Washington has nothing to do with Bork. He’s just a symbol of something else, which is the conservative movement’s rejection of Supreme Court rulings related to civil and woman’s rights. Because the conservatives want to roll back those rulings, they’ve essentially politicized the court. They argue the reverse, which is that the left used the Court to change the law in a way Congress never would have done. That’s true. If we had waited for Congress to act, we’d still have Jim Crow laws and women would still be getting back-alley abortions. In other words, if conservatives hadn’t been so wrong back in the 1950’s and 1960’s, we might not have a politicized judicial system today. But they were, and we do.
For the last twenty-four years both parties have used a variety of tactics to stop the judicial appointments of the other party. Only rarely does it come down to a filibuster. Judiciary Committee chairs can slow-walk nominees, or they can be defeated at the committee level. Home-state senators can veto judicial nominations. The Senate can make clear that a nominee doesn’t have the votes, causing them to withdraw.
One thing should be clear though, in case you want to cast equal blame for this situation. The Democratic nominees want to uphold the law as it stands. The Republican nominees want to overturn Roe v. Wade. Republican nominees who have been confirmed are eroding consumer rights and have already given corporations unprecedented control over our electoral system. The Republicans are the ones legislating from the bench, as Citizens United proved. Since the courts have become legislatures, they have also become political bodies. They blame us for starting it. I blame them for being unrelenting assholes who forced us to choose between Apartheid and a politicized court.