Supreme Court confirmation hearings for Judge Ketanji Brown Jackson are underway this morning. Sens. Ted Cruz of Texas and Ben Sasse of Nebraska made a point to invoke the “character assassination” of Judge Robert Bork in opening statements on Monday. Steve Benen reminds Maddowblog readers that Republicans’ memories of Bork’s rejection for a Supreme Court seat is a mite selective.
Sen. Mike Lee (Utah) and Lindsey Graham (South Carolina) invoked Bork during Judge Amy Coney Barrett’s Supreme Court nomination in 2020. Lee alleged that senators (Democrats) “shamefully and slanderously defeated the nomination of one of the country’s most respected lawyers and constitutional scholars.”
How respected was he?
Benen reminds readers why Bork’s nomination raised such objections:
For those who may need a refresher, let’s revisit some of our earlier coverage. Justice Lewis Powell announced his retirement in 1987, and Ronald Reagan soon after nominated Bork. He was immediately seen as one of the most controversial choices in American history.
Indeed, shortly after the president’s announcement, Sen. Ted Kennedy delivered a famous condemnation on the Senate floor: “Robert Bork’s America is a land in which women would be forced into back alley abortions, Blacks would sit at segregated lunch counters, school children could not be taught about evolution, writers and artist could be censured at the whim of government.”
It was a stinging indictment, based largely on fact. Bork, who developed an unfortunate reputation stemming from his role in Richard Nixon’s “Saturday Night Massacre” in 1973, was on record defending Jim Crow-era poll taxes, condemning portions of the Civil Rights Act banning discrimination in public accommodations, and arguing against extending the equal protection of the 14th Amendment to women.
If contemporary Republicans want to argue that the fight over Bork’s nomination was historically significant, that’s true. It was during consideration of Bork that senators largely decided it wasn’t enough to merely consider a Supreme Court nominee’s qualifications; they also had to consider whether he or she was ideologically and temperamentally suited for the bench.
In Bork’s case, it was a test he failed. When his nomination reached the Senate floor, 58 senators, including six Republicans, voted to reject him. (After the vote, Strom Thurmond, of all people, urged the Reagan White House to nominate someone less “controversial.”)
But for GOP senators to argue decades later that his bipartisan defeat somehow did irreparable harm to the confirmation process is difficult to take seriously. In fact, after Bork’s nomination faced opposition from both parties, Reagan nominated Anthony Kennedy, who was confirmed by the Democratic-led Senate, 97 to 0. Another nominee from a Republican White House — David Souter — was also confirmed unanimously a few years later by a Democratic-led Senate.
Three years after that, Ruth Bader Ginsburg was confirmed 96 to 3. Stephen Breyer was confirmed a year later, 87 to 9.
If GOP senators were right, and the Bork ordeal created new norms and fundamentally broke an important Senate function, these examples wouldn’t exist. But they do.
What’s more, let’s not brush past the fact that Bork was given an opportunity: The Democratic-led Senate held full hearings, heard directly from the nominee, and afforded him an up-or-down vote on the floor. Senators from both parties reached an obvious conclusion: Bork was simply too extreme.
In 2016, Republicans, including many of the members who were whining yesterday, denied all of this to Merrick Garland — not because he was a radical ideologue with an indefensible record, but ostensibly because considering a qualified nominee within eight months of an election was deemed impossible, even as GOP senators came to the opposite conclusion four years later.
The fight over Bork was important, just not in the ways Republicans remember.
Q.E.D.
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