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Senate confirmations changed when the word ‘Bork’ became a verb

In the days since the death of Antonin Scalia, there have been a number of arguments made about why the Senate must confirm a new Supreme Court justice. We’ve been told that the failure to do so would be a failure to do their sworn duty. It’s hard to hear such arguments as being meant in anything like good faith.

There was a time when nominations were fairly straightforward. If the nominee was in good standing, intelligent and didn’t have any serious ethical issues, then the Senate would confirm. That changed in 1987, when the word “Bork” became a verb and the Senate decided that the philosophy of the nominee was of prime importance. A few short years later, Sen. Joe Biden warned the first President Bush to not even bother to put forth a nominee if an opening should happen during the political run-up to an election.

During the George W. Bush administration, the Democratic leadership in the Senate brought judicial confirmations to a crawl. The well-qualified appeals-court nominee Miguel Estrada was sidelined in part because he is a Latino and liberal interest groups were afraid that he would be an attractive future Supreme Court nominee. In 2007, more than a year before the presidential election, Sen. Chuck Schumer, D-N.Y., openly said that no more nominees from Bush should be confirmed. This, of course, was after Senate Democrats attempted to filibuster a Supreme Court nominee.

A illustrative hypothetical

In order to swallow the current arguments being made, we are asked to believe that in a hypothetical situation where, say, Justice Ruth Bader Ginsberg had suddenly died in February of 2008, this same group of senators would have allowed a new nominee to be processed and confirmed. Does anyone believe this? Please!

“Well, two wrongs don’t make a right” is now the refrain.  This is interesting because most of the people who are saying that won’t actually tell you that the past actions of those Democratic senators were wrong. But tell you what, if those same senators want to stand up and explain why they should not have rejected past nominees because of a difference of philosophy, we should all listen. Otherwise, the most honest presumption is that they simply want the rules to be one way when it favors them, and a different way when it doesn’t.

The key question at hand is simply this: Should a senator vote to confirm a nominee with whom he or she disagrees on matters like abortion, gun rights and free speech? Or should Democratic senators only vote to confirm liberal justices while Republicans only confirm conservatives? Those are the two basic choices. Either the process continues to be political at its heart or we somehow go back to the idea of voting for all qualified nominees. (Please note, if you only think that the other side should bend, then you don’t understand how a democracy is supposed to work.)

How would our senators decide?

What would our Minnesota senators decide? Would Amy Klobuchar and Al Franken go the qualification route or would they keep it political? Under what circumstances would they vote for a nominee put forward by a Republican president?  And what would DFL voters say if they confirmed someone like Justices John Roberts or Samuel Alito?

When President Barack Obama, then a senator, spoke about his objections to Alito, he said:

I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.

Using those same qualifications, we’re stuck in the situation where justices will largely be acceptable or not based on the political make-up of the Senate. We currently have a Republican majority, and that means a more conservative nominee. The chances that Obama will put one forth seems very unlikely.

This seat won’t be filled until after the election. And that would be just as true if the parties in charge of the various branches were reversed.

Peder DeFor, of Minneapolis, writes the blog Peder D4.

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Comments (21)

  1. Submitted by Pat Berg on 02/29/2016 - 11:21 am.

    “Processed and confirmed”

    Processed and confirmed. Those are two separate concepts. Speaking for myself, what I am vigorously opposed to is the refusal to even let the *process* play out. I know I can’t control the outcome and that – in the current climate – *confirmation* is extremely unlikely. But that doesn’t mean that you don’t at least give the respect of following the process as it has been laid out.

    Our system is a collection of processes. And when we start derailing those without even paying them lip service, that is a path towards the breakdown of the system as a whole.

    Is that really the path that we should be following?

  2. Submitted by joe smith on 02/29/2016 - 09:21 am.

    Thank you Peder

    An article that lays out the changing tactics depending on who is in power at the time, written in a factual, true, non biased manner, not a common theme here at Minnpost.

    • Submitted by RB Holbrook on 02/29/2016 - 10:34 am.

      Non Biased!

      Good one, Mr. Smith. Those of us who have been paying attention know that Mr. Defor has been a reliable voice from the right-hand side of the aisle for some time.

      On reflection, I suppose by “unbiased” you mean “reflexive support of the Republican Party and the shibboleths of American conservatism.” That isn’t the common understanding of the word, but go with whatever makes you happy.

  3. Submitted by RB Holbrook on 02/29/2016 - 09:32 am.

    Give. Me. A. Break.

    “‘Well, two wrongs don’t make a right’ is now the refrain. This is interesting because most of the people who are saying that won’t actually tell you that the past actions of those Democratic senators were wrong.”

    Really? That’s what this is all about–waiting for an apology?

    This article is further proof where none is needed that the Republican Party is ideologically bankrupt. They have no justification for themselves other than opposition.

  4. Submitted by joe smith on 02/29/2016 - 09:40 am.

    LOL, one article written in a fair manner brings out bitterness. Telling the truth as to what happened in the past causes a lot of anger in some.

    • Submitted by Pat Berg on 02/29/2016 - 09:51 am.

      Justification?

      So that justifies derailing the process and risking damage to Democracy in the present?

      Those are grade school reactions.

      “An eye for an eye” only results in a bunch of blind people running around.

  5. Submitted by Frank Phelan on 02/29/2016 - 10:12 am.

    I Closely Followed

    The saga of Robert Bork. After he was nominated, liberal groups worked very hard to move the needle on public opinion, to no avail. The largest block of the public answered “no opinion” in surveys, right up to the start of the confirmation hearings.

    It was only once Bork began to speak that the public realized that R. Reagan had nominated an ideologue that public opinion turned swiftly and decisively against Bork. All of the efforts of liberal groups to whip up opposition had virtually no effect.

    Bork was his own worst enemy. The first question Bork was asked was, “why do you want to serve on the court?” His answer, and I remember it almost word for word, “First, it would be an intellectual feast.” Not serving his country, not protecting the rights of citizens, nothing like that. His primary motivation was that he’d get a kick out of it.

    I guess that’s why he’d angled for years to get a SCOTUS nomination. And let once and for all rid ourselves of the quaint myth that Reagan was simply “appointing the best person for the job.” RR knew well what he was doing, and the appointment of Bork was a very political move from the start. Any other suggestion is simply naive. Bork was no innocent victim.

  6. Submitted by joe smith on 02/29/2016 - 10:20 am.

    Pat

    Was it a risk to Democracy in 1987 or 20 years later in 2007? I think “an eye for an eye” was originally proposed to create a fairness and eliminate special treatment of some.

    • Submitted by Pat Berg on 02/29/2016 - 11:13 am.

      Reply

      Have you noticed the “Reply” button immediately below each comment? If you would begin using it, it would be a lot easier to link your comments to what they are in reaction to. (Yes, I know you used my name this time. But I have noticed that your comments routinely appear as if they are puzzlingly standalone non-indented comments when in fact they are replies to something someone has said further up in the thread.)

      Now I’ll go back to simply trying to figure out what you meant by your comment . . . . .

    • Submitted by Frank Phelan on 02/29/2016 - 11:53 am.

      The Only SCOTUS Nominee

      Blocked in this century so far was Harriet Myers, named by G.W. Bush. Who was it that shot her down? Oh yeah, it was conservatives, not liberal groups.

    • Submitted by Greg Kapphahn on 02/29/2016 - 01:20 pm.

      Ignorant of History, as Always

      “An Eye for an Eye” is shorthand for a set of rules found in the Mosaic law,…

      which LIMITED what had previously been a culture of revenge,…

      i.e. you hurt my brother, I KILL your brother,…

      you kill my brother (even by accident) and my family wipes out your entire family,…

      much as we see in some of the most traditional (religiously conservative) areas of South and Southwest Asia.

      It limited such reprisals to ONLY “an eye for and eye” and ONLY “a tooth for a tooth.”

      Let us not forget, however, that Jesus even cast that aside saying,…

      “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also; and if anyone wants to sue you and take your coat, give your cloak as well; and if anyone forces you to go one mile, go also the second mile. Give to everyone who begs from you, and do not refuse anyone who wants to borrow from you.” [NRSV] Matthew 5:38-42

      which would be a far more constructive approach to governance than the obstructionism which is currently so rampant,…

      as our GOP brothers and sisters continuously try to get even with and punish their Democratic colleagues in congress,…

      for the reality that pet ideas which the GOP believes must CERTAINLY be true,…

      have now been clearly proven NOT to work,…

      and the Democrats have dared to have OTHER ideas,…

      ideas which the example of our own state, Minnesota, proves DO work.

  7. Submitted by Connie Sullivan on 02/29/2016 - 11:51 am.

    Like Frank Phelan, I, too, remember the moments when Bork opened his mouth at the Judiciary Committee hearings. Astonishing, un-self-aware arrogance, overweaning pride and disdain for any others, etc. Whew!

    This opinion piece tries to focus our attention on ideological differences between Senators and nominees since the Bork flame-out. But the shock felt by millions of Americans who actually pay attention to details, including a great number of legal-eagle Republicans, is due to Senator McConnell’s forcing the saner Republican minds in the Senate to refuse even to participate in the Constitutional process of “advising and consenting [or not]” to a nomination by the current President.

    We’re not talking here of some ideological split in a Senate vote up or down. We’re talking Constitutional process, that the Republicans are refusing to take part in. They won’t meet with any nominee, they won’t hold hearings in the Senate, they won’t ever bring the nomination up for a Senate floor vote. At all, and in the first place. For almost a full year! That’s huge, and unprecedented.

  8. Submitted by Jon Kingstad on 02/29/2016 - 12:36 pm.

    Bork was no precedent

    I agree that the Supreme Court vacancy will not be filled until after the election. But that’s just because the current Republican majority in the Senate refuses to even consider a nominee. These Republican Senators simply assume that whoever President Obama nominates, he or she will be automatically unacceptable. Completely refusing a sitting President the ability to fill A Supreme Court vacancy is hardly on the same plane as rejecting a nominee, like Bork, who was given a hearing, and, as Mr. Phelan points out, was his own worst enemy in them. Bork’s rejection did not prevent President Reagan from filling the vacancy with Anthony Kennedy.

    The truth is that no Republican President has even been prevented from filling a vacancy on the Supreme Court during his term by the opposition party in the Senate. If the Republican Party does adhere to its party line, it will have established a new precedent. The question for me is: will the electorate, especially those who call themselves “independent” notice or care? Will this stunt help finally and formally establish one-party rule in the US?

  9. Submitted by Charles Holtman on 02/29/2016 - 01:19 pm.

    You state that Senators must vote based either on their

    political camp or on whether a nominee is qualified. Clearly, voting should be based on qualification. But you don’t venture a word about the meaning of “qualified.” Analytical firepower itself is good, but not essential, and certainly not sufficient.

    The colloquy with a Supreme Court nominee should not be about how that candidate would rule in a specific case, or whether the nominee is “liberal” or “conservative” (a wholly incoherent way of categorizing justices). It should be about that nominee’s theory of what the Constitution is; how a justice goes about interpreting and applying it; how the justices collaborate in the process; the role of Supreme Court constitutional interpretation in leading or following social and economic change; and how the process does, or does not, account for the diversity of lives as they are lived across the nation. (Bork was unable to speak credibly to these questions, and that is why he was not qualified – though those who have come after, and have been confirmed, have been similarly unqualified.) If the Senate were a mature and conscientious deliberative body, “qualified” also might give consideration to the makeup at a given time and the benefit of providing balance among credible orientations and capacities.

  10. Submitted by RB Holbrook on 02/29/2016 - 01:43 pm.

    Remembering Borking

    Yes, I remember the hearings of 1987.

    Robert Bork, the former Solicitor General who was made acting Attorney General so he could fire Watergate special prosecutor Archibald Cox (Elliott Richardson and William Ruckleshaus–numbers one and two at the Justice Department–resigned rather than comply with the orders to fire) was presented to the American public as a towering intellectual figure whose prolific writings showed the depth of his intelligence. Reading those writings, however, showed that he had a surprisingly retrograde view of the Constitution and the rights of individuals. There was also his zeal for minimal checks on the authority of the executive.

    How unfair to consider the writings that were supposed to show how well-qualified he was! Especially since President Nixon had promised him a seat on the Court as a reward for being such a loyal hatchet man! After all, when had a nominee ever been rejected for the Court because of his legal opinions? Except, that is, for John Rutledge. Or Ebenezer Hoar. Or Caleb Cusing. Or those other guys. How unfair!

  11. Submitted by David Koorman on 02/29/2016 - 01:44 pm.

    Nothing new under the sun

    It’s hardly the case that Senate confirmation was granted without regard to a nominee’s judicial philosophy, prior to 1987. There have been several unsuccessful nominees over our history who were refused confirmation for reasons having nothing to do with intelligence or qualifications. Indeed, the first filibuster in Senate history on a Supreme Court nomination was in 1968 – remarkably, that wasn’t for a new Justice, but the elevation of an existing Justice (Abe Fortas) to Chief Justice (and note that unlike Bork, Fortas’s nomination was recommended by the Senate Judiciary Committee; Bork’s was not).

    It’s also informative to know that “Borked” was in use as a verb before Robert Bork’s Supreme Court nomination, albeit among a smaller group. Previous to 1987, “getting Borked” meant getting a conservative judicial decision based on Judge Bork’s conservative ideology alone, with no justification in the law (See 9 Cardozo L. Rev. 297 (1987))

  12. Submitted by Dan Hintz on 02/29/2016 - 02:16 pm.

    Bork was such a poor candidate for the Court that six Republican Senators joined most Democrats in voting no. This wasn’t about partisanship – this was about rejecting a totally unqualified candidate. It has no relevance to the current situation.

    • Submitted by Ron Gotzman on 02/29/2016 - 04:10 pm.

      Bork not the issue….

      Does the Schumer rule apply to the current situation?

      New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

      “We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

      • Submitted by Dan Hintz on 02/29/2016 - 07:30 pm.

        Bork

        I addressed Bork because the flawed arguments in this piece concern Bork. When Reagan nominated a replacement that was not grossly unqualifed the way Bork was, the Democrats voted him in.

        Schumer made some statements on this topic, but I’m not sure exactly what the “Schumer Rule” is. There wasn’t another vacancy during Bush’s presidency, so it wasn’t an issue. It certainly makes Schumer look hypocritical, but the idea that the Senate should block consideration of any candidate, no matter how qualified, is absurd.

        • Submitted by Pat Berg on 03/01/2016 - 11:34 am.

          “The Schumer Rule”

          I Googled “The Schumer Rule” and the only places I got hits were on a couple of Conservative websites (Wikipedia even gave me a “not found” when I searched on the term).

          So it’s just yet another example of the Conservatives trying to make a big deal (We’ll call it a “Rule”!) when a Democrat expresses an opinion that may be a bad idea, and then try and turn it into some sort of precedent to justify the latest over-reaction on their part.

          The fact remains that it would be unprecedented and destructive to our system of Democracy if Republicans refuse to even go through the Constitutional process laid out for Supreme Court Justice nominations just because their Obama Derangement Syndrome has them so wildly out of touch with the effects of their actions.

  13. Submitted by Sean Olsen on 02/29/2016 - 03:26 pm.

    Overlooked fact

    If you want to talk partisanship in the Senate confirmation process, it should be noted that more Senate Democrats voted for Roberts (22) than the number of Senate Republicans who voted for Sotomayor and Kagan combined (14).

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