A powerful PBS “Frontline” documentary, titled “Supreme Revenge,” will air Tuesday night at 9 on PBS stations in the Twin Cities. It’s about the recent history of U.S. Supreme Court nominations, starting with President Ronald Reagan’s 1987 nomination of Robert Bork and, naturally, ending with the recent nomination and confirmation of Brett Kavanaugh.
It’s not just another hit piece on Republican presidents and recent nominees. It is about the 30-year history of the growing power of the conservative Federalist Society in shaping the Supreme Court, and about the increasing partisanization and politicization of Supreme Court nominations and confirmations, assigning some blame to both parties.
And it’s about Sen. Mitch McConnell’s large role in procuring the current conservative court majority.
Before I trace a bit of the history covered by the film, I’ll skip to the end, with Republican pollster/pundit Frank Luntz bemoaning the overall drift toward partisanization of court appointments and confirmations.
Our friends in the United States Senate created this environment. Now we have to live with it. And the problem is we can’t. Now we are hopelessly divided on the last thing that used to unite us [namely the belief among Americans that the Supreme Court was the least political branch that was devoted to the neutral interpretation and preservation of the Constitution and the laws]. That used to be our judicial system. Now there’s nothing that pulls us together. Nothing.
That’s how the film ends.
At the time of the Bork nomination, the Federalist Society was a much-less-important club for conservative law students. Post-Bork, it moved into the big-time and every recent Supreme Court nominee by a Republican president has been a Federalist Society member.
Long-time Supreme Court reporter Linda Greenhouse says on camera that, after the Borking of Bork, the Federalists “went underground … built an infrastructure … and turned into a juggernaut of the right.” During the Reagan administration, at one point, 12 of the 12 assistant attorneys general had ties to the Federalist Society.
The film goes through the fight over Clarence Thomas, whose Supreme Court nomination was almost derailed over the sexual harassment allegations made by Anita Hill. To liberals, this was a justifiable issue based on credible evidence of Thomas’ unfitness. To conservatives, it was evidence of “another attempted liberal takedown,” as McConnell said at the time.
When right-wing court hero Antonin Scalia died unexpectedly near the end of the Obama administration, President Obama, aware that the Republican-controlled McConnell-led Senate wouldn’t be anxious to replace Scalia with a liberal, nominated the very qualified and not-so-very-liberal Merrick Garland. But McConnell, by then the majority leader, understood, as the film said, that when there’s a court vacancy, you’re “playing for a generation.”
McConnell said: “We’re not giving a lifetime appointment to this president to change, on his way out the door, the Supreme Court for the next 25 or 30 years.”
He pulled the (essentially) unprecedented maneuver of denying Garland even a hearing, which may have been the most aggressive act of his “Supreme Revenge.” According to another long-time court-watcher, Nina Totenberg, one Republican senator waffled on whether that would be going too far to partisanize the court. Totenberg said McConnell threatened to recruit a primary challenger against the waffler if he broke ranks.
And the film traces the development of McConnell, who was a mere Senate freshman at the time of the Bork nomination, but has since risen to become majority leader and the leading figure in creating the new normal, which is that the Federalist Society plays a dominant role in the choice of Supreme Court nominees when there is a Republican president. Also, McConnell uses his Senate power to try to block the confirmation of liberal nominees when a Democrat is in the White House, as he did with the nomination of Garland at the end of the Obama administration.
The title, “Supreme Revenge,” could have been “McConnell’s Revenge.” The film suggests that McConnell has spent the last decades retaliating for what happened to Bork when McConnell was a freshman, which has given rise to a term, at least in conservative circles, to the term “Borking,” to refer to a hit job on a Supreme Court nominee, especially a conservative one, for being too openly conservative.
I wrote above that the film isn’t just a hit piece on nasty Republicans. The film blames Democrats for the first-ever of the modern political attacks on a Supreme Court nominee, namely attack ads against Bork, including one narrated by Gregory Peck.
McConnell felt this was a declaration of war, and he said, publicly, that if that was the way liberals would attack conservative nominees that “we’re going to do it when we want to, and when we want to will be when the president sends up somebody we don’t like.”
Welcome to the new normal.
It’s an impressive film, although it leaves us in a depressing place, as indicated by the Luntz quote above.