BORK FIGHT HAUNTS CONFIRMATIONS AT SUPREME COURT
The politicizing of the court began in 1987, some say
It was 29 years ago that the Senate rejected President Reagan’s nomination of Judge Robert Bork to the Supreme Court. But in an institution as hidebound and deliberative as the Senate, the wounds are as rawas if it happened last year.
As President Obama seeks to overcome a Republican blockade of his nomination to replace Justice Antonin Scalia, the Bork confirmation fight continues to cast a long shadow over a confirmation process that both sides say has become increasingly politicized.
As with Scalia, the stakes in the Bork nomination were high. He would have replaced Justice Lewis Powell, a moderateto- conservative jurist who voted with the majority in Roe v. Wade, which legalized abortion, and probably would have been the decisive vote to overturn Roe in 1992’ s Planned Parenthood v. Casey, legal scholars say. Instead, the Senate confirmed Justice Anthony Kennedy, a California moderate who joined a plurality that has largely upheld abortion rights, and has proved to be the decisive vote in some of the most contentious 5- 4 decisions in recent history: Bush v. Gore, Citizens United v. FEC and Obergefell v. Hodges.
So the problem for Obama is not only that his nomination falls in an election year, but that nominee would likely change the balance of the court. “Because anyone to the left of Scalia moves the court to the left. And more importantly, anyone to the left of a Kennedy and we have a new swing voter on the court,” said Paul Collins, author of Supreme Court Confirmation Hearings and Constitutional Change.
Historically, when presidents propose such “critical” nominations — especially late in their term when the Senate is controlled by the opposite party — “the odds of failure skyrocket,” said P. S. Ruckman Jr., a political scientist at Rock Valley College in Illinois.
The first hint of trouble came just hours after Scalia’s death, when Senate Majority Leader Mitch McConnell, RKy., said any nomination should wait until the next president.
McConnell cites a 1992 speech by then- Sen. Joe Biden saying an electionyear president should “not name a nominee until after the November election is completed.” In an op- ed in The
New York Times, Biden said using his speech to justify inaction on Obama’s nominee “distorts the broader meaning of the speech.”
Biden had argued that Reagan had tried to remake the court by appointing extreme- right judges — such as Scalia and Bork— to replace more moderate or liberal justices.
When Reagan nominated Bork to succeed Powell in 1987, few questioned Bork’s qualifications. He had been the solicitor general in the Nixon administration, a professor at Yale Law School, and a judge on the U. S. Court of Appeals for the District of Columbia Circuit.
But Bork quickly drew opposition from Senate Democrats for his embrace of “originalism,” a judicial philosophy that maintained that constitutional rights only exist as the writers of the Constitution understood them at the time of enactment. Most notably, Bork rejected the right to privacy that formed the basis of Roe v. Wade.
Bork’s name has resurfaced on the floor of the Senate since Scalia’s death. Sen. John Barrasso, R- Wyo., said the Bork nomination launched a period of partisanship over the court.
But Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said even Bork received a hearing.
But there is a Bork effect. “What’s going on now, I’m quite confident that it would be going on in a similar situation if the roles were reversed,” Collins said. “It’s exacerbated by the fact that it’s an election year.”