The Bork Nomination Legacy – Democrat Viciousness Paying Supreme Court Dividends

In light of the recent big Supreme Court decisions “upholding” Obamacare subsidies and same-sex marriage, in which two Republican-nominated justices voted their political policy preferences rather than looking to constitutional textual principles, it is worth noting how our Republic got to this point.  The point where clear language in a crucial section of an important law that purposefully stated that subsidies were only available through health care exchanges “established by the state” is decreed to have really meant “not established by the state” in order to rescue the law from economic and political disaster.  That the so-called liberal justices always vote their personal political preferences is hard enough to take, but to have Republican-nominated justices join them is truly an ominous sign for the future of our Republic.

In 1987, Republican President Ronald Reagan was faced with an opening on the Supreme Court.  Up to that time, there was a general Senate policy of deference to the President’s nominee, although in the decade earlier Republican Nixon had two nominations rejected.  Reagan proceeded to nominate noted lawyer and jurist Robert Bork, but Democrats in the Senate considered him too forceful an advocate for the non-political constitutional interpretation they opposed.  Democrats smeared and savaged Bork, and Republican pushback was feeble.  His nomination failed.  The viciousness with which the Democrats attacked Bork and Reagan served to profoundly intimidate Republican presidents thereafter.  In Bork’s place, Reagan ultimately nominated Anthony Kennedy, who would become, on cases with significant political issues, a man who votes his personal political preferences rather than constitutional dictates.   

Republican presidents after the Bork episode became drawn to nominating so-called "stealth" candidates, hopefully secretly true constitutionalists but without much of a track record that might upset the strident liberal Democrats who sought a political Supreme Court.  The stealth strategy of course has turned out to be a disaster for constitutionalists (see, for example, Kennedy, Anthony; Souter, David; and Roberts, John – just to stick with the Supreme Court).  One might have at least hoped at the time that the new Senate approach would mean that Democrat presidents would also be forced to nominate “stealth” candidates more acceptable to the other side.    

No such luck.  When Clinton was elected and nominated two extreme, no-doubt-about-it ultraliberal lawyers, the Republicans should have returned the favor, leveled the playing field, and as the Democrats did with Bork should have rejected those nominations.  But they did not, and inexplicably returned to the old policy of deference to a president’s choice.  A stunning show of political cowardice and incompetence of lasting historical importance. 

One Clinton nominee, the ultraliberal Ginsburg, an anti-constitutionalist who votes her political preferences as a super-legislator, was confirmed by the senate 93-3.  Thirty-nine Republicans voted to confirm her, within recent memory of the Bork attack, while only three said nay.  Republicans voting to confirm Ginsburg included current senators McConnell, the Republican leader in the Senate, and McCain, a former Republican Party nominee for president, as well as former Senator Robert Dole, the Republican Party nominee for president in 1996.  Compare these Senate confirmation vote totals:  for Republican-nominated Thomas (52-48) and Alito (58-42) versus Democrat-nominated Breyer (87-9).  Even ultra-stealth nominee John Roberts, a George W. Bush discredit, who was such a cipher that he was regarded at the time by some astute conservatives as dangerously political rather than constitutional, and who has gone on to become a political liberal vote on some big cases, was only confirmed 78-22, with many prominent ultraliberal Democrats like Joe Biden and Dick Durbin voting against him.  The bottom line is that Republicans senators overwhelmingly vote for Democrat nominees, but not vice-versa.  Why would that possibly be?  Why should that possibly be?

The disgraceful Republican weakness after the Bork episode led directly to the nominations by Republican presidents of some liberal justices, and the nomination (with easy confirmation) by Democrat presidents of anti-constitution ultraliberal justices.  The scorched earth strategy toward Republican nominees was begun by Ted Kennedy, the Democrat Party saint who left a woman passenger to slowly drown in the car he drove into water while he slithered off to sober up.  Kennedy looked into Republican eyes and saw weakness.  The strategy has been extremely successful.  It has worked in spades, likely beyond the wildest Democrat dreams, and continues to pay dividends down to this very day, to the everlasting detriment of the Republic.

R Balsamo