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Powerful new ‘Frontline’ doc details the partisanization of the U.S. Supreme Court

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.

Before that, it traces the rise to power of the Federalist Society, the very conservative Supreme Court-oriented outfit that has become the leading broker of Supreme Court nominations during Republican presidencies since the Bork nomination.

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.

Near the end, the film tells how Donald Trump, as a candidate who made many conservatives nervous (because he didn’t have much a track record as an actual “conservative),” solved that problem substantially by embracing a Federalist Society list of candidates for any high court appointments that might occur while he was president.

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.

Comments (31)

  1. Submitted by Ray J Wallin on 05/21/2019 - 10:20 am.

    Since the 80s we have become more polarized as a country. Our elected officials are simply following our lead. SCOTUS nominees have faced this polarization, but once confirmed, our justices have remained true. Since 1975, the Court has remained at the same level of polarization.

    In other words, SCOTUS is not polarized, but we are.

  2. Submitted by Hiram Foster on 05/21/2019 - 10:42 am.

    It’s time for our democracy to shed it’s training wheels and overturn Marbury v. Madison.

    • Submitted by Mark Iezek on 05/22/2019 - 06:02 pm.

      Would that then overturn all the 1100+ cases where Federal and state laws were overturned for violating the constitution? For example, would District of Columbia v. Heller be overturned, allowing the state and Federal governments free reign to pass laws to ban handguns?

  3. Submitted by Hiram Foster on 05/21/2019 - 10:45 am.

    One way I summarize the increase in partisanship and politicization of the Supreme Court over time is to point out that Clarence Thomas got a hearing and Merrick Garland didn’t.

    • Submitted by Paul Brandon on 05/22/2019 - 10:00 am.

      Maybe that’s because there was no question about Garland’s competence or morals, but serious ones about Thomas’s.

  4. Submitted by richard owens on 05/21/2019 - 11:04 am.

    The Federalist Society does manufacture “Conservative” justices.

    We found out too, in Brett Kavanaugh’s nomination, that he had been instrumental in preparing more candidates by grooming plum SCOTUS clerk assignments to proper “Conservative” law school grads.

    Someone posted another connection to the Judiciary, and that is a D.C. law firm named Kirkland and Ellis.

    Here are others that worked for Kirkland and Ellis, all in the Trump admin.

    * Brett Kavanaugh
    * Jeff Wall – Principal Deputy Solicitor General and former acting Solicitor General
    * Ken Starr
    * William P. Barr
    * Pat Cipollone
    * Alex Azar – Secretary of Health and Human Services
    * Alexander Acosta – Secretary of Labor
    * John R. Bolton
    * Brian Benczkowski – Assistant Attorney General for the Criminal Division
    * Beth Ann Williams – Assistant Attorney General for the Office of Legal Policy
    * Steven Engel – Assistant Attorney General for the Office of Legal Counsel
    * Jeffrey A. Rosen – Deputy Secretary of Transportation and nominee to be Deputy Attorney General
    * Steven G. Bradbury – General Counsel of the Department of Transportation
    * Nathan Sales – Coordinator for Counterterrorism

    That’s some shadow justice department system!
    As for Bork, there was good reason to “Bork” him, not only for his legal biases, but also for his behavior in the Nixon matter:

    (WIKI) ” In the October 1973 Saturday Night Massacre, Bork became acting attorney general after his superiors in the Justice Department resigned rather than fire Special Prosecutor Archibald Cox, who was investigating the Watergate scandal. Bork fired Cox, and served as acting attorney general until January 1974.”

    Sounds a lot like Barr, eh?

    • Submitted by Misty Martin on 05/21/2019 - 12:08 pm.

      Mr. Owens:

      It does indeed. Thank you for that keen observation.

    • Submitted by Joe Musich on 05/21/2019 - 07:37 pm.

      Yes there was…Bork served someone other then the country just like Barr. I would not label what happened to Bork as some cruel plot but as a rejection of a candidate. Does this not happen all the time ? And should it not if someone is unqualified or destructive to the flow of the flow…

  5. Submitted by lisa miller on 05/21/2019 - 12:55 pm.

    McConnell is anti democracy. He continually breaks rules for his benefit. If a supreme court nominee meets all basic standards it is a president’s right to choose, however the rules need to be fair to begin with–something McConnell refuses to acknowledge. Yet many people blindly accept their monarchy type of behavior.

  6. Submitted by Kent Fralish on 05/21/2019 - 01:14 pm.

    All these ultra conservative judges.
    And which rulings that SCOTUS has made are you so enraged about?

    • Submitted by Jon Kingstad on 05/21/2019 - 03:35 pm.

      To name a few: Citizen’s United, and a host of others reinforcing corporate personhood in the Constitution and money as being free speech; Bush v. Gore, for anointing a completely unqualified individual as President for partisan reasons; the Janus decision and eroding the ability of individuals to bargain collectively under the guise of “First Amendment” principles; Heller v. District of Columbia for reversing 150 years of precedent holding that Second Amendment does not provide any personal right to bear arms; a decision whose name I can’t recall holding that the Department of Justice could no longer monitor States where racial discrimination against voting rights had been historically practice. Overturning Roe v.Wade is probably next because amending the Constitution by Constitutional processes doesn’t actually apply if it’s for a partisan, certifiably right-wing cause.

  7. Submitted by Hiram Foster on 05/21/2019 - 02:22 pm.

    As I trudged home from my DFL defeat election night party in 2016, what I thought a lot about was that our new unelected president would be in a position to determine judicial policy for generations to come, long after he leaves office. We need to decide if that’s a problem, and if it is, we need to think about a solution.

    • Submitted by Paul Brandon on 05/21/2019 - 03:03 pm.

      Justices can be impeached.
      And the makeup of the Supreme Court is not set in the Constitution.
      Congress may increase or decrease its size.

      • Submitted by Hiram Foster on 05/21/2019 - 03:38 pm.

        Justices can be impeached.

        Being wrong is not an impeachable offense. Neither is being political.

        And the makeup of the Supreme Court is not set in the Constitution.
        Congress may increase or decrease its size.

        But that requires agreement between the president a majority in the house and a super majority in the senate. That is unlikely to happen.

        My own view is one I suspect I share with CJ Roberts of all people. The Supreme Court is authoritative because people think it’s authoritative. It that authority is defied without consequence, than it ceases to exist. The Supreme Court would lose it’s power, and become little more than an advisory body, a less verbal and possibly less eccentric version of the British House of Lords. And the pathway to that is very clear, and not at all unlikely. If Donald Trump defies a court order, and isn’t removed from office, that would be the end of the Judiciary as an equal branch of government.

        • Submitted by Paul Brandon on 05/21/2019 - 04:51 pm.

          I suspect that you’re right about Roberts (and possibly Kavanaugh).
          On impeachment, I doubt that the Constitution is any more specific about what warrants impeachment of justices than it is about the presidency.

        • Submitted by Chas Dalseide on 05/21/2019 - 08:20 pm.

          Of all those who have sworn to defend the Constitution, who would be likely to do anything?
          And what does it mean? What would they do? Anything more than resign and leave the field?
          Can the federal Marshalls overpower the Security force? Would it fall back on civil disobedience? Would we see repeats of Kent State or Tiananmen Square?

          If you pledge allegiance to the flag, what are you obligating yourself to do? Join the military, or
          raise children to join the military, and let them be under control of the CinC? Only officers can
          resign rather than follow orders.

  8. Submitted by Wes Davey on 05/21/2019 - 04:39 pm.

    Only two law schools and two religious faiths are represented on the Court; how does that happen in this land of diversity?

  9. Submitted by Steven Bailey on 05/21/2019 - 06:22 pm.

    Our system has failed for everyone but the 1%. Things are not going to get better 🙁

  10. Submitted by John Evans on 05/21/2019 - 08:21 pm.

    Senate Judiciary Committee hearings are generally fatuous and unpleasant, but occasionally revealing. Robert Bork was a contentious and contrary fellow who was both forthcoming and forthright about his views and philosophy. Yes, he was by turns praised abused by fools and cowards. But his views, I think, got a reasonably fair and extensive hearing. He was the last nominee to bring his or her full philosophy and legal viewpoint out for examination.

    It seems to me that this was a moment when movement conservative thinking came out of the closet and into the spotlight, and lost badly in the court of public opinion. Bork was rejected for the best of reasons; not because of any allegations of bad behavior outside the courtroom, or because he seemed like a jerk, but because his views really were extreme, and far outside the mainstream of legal thinking, and the philosophy that most of us share.

    To me, Bork’s rejection seems like the moment when movement conservatives decided that the only way to win was to play partisan hardball at every turn; to bend or break any of the norms and customs of politics that they found inconvenient.

    • Submitted by Charles Holtman on 05/22/2019 - 12:47 pm.

      Because a Supreme Court Justice must apply the Constitution as a living document to an evolving society, the position requires not just intellect, but also wisdom, temperament and character. Robert Bork had intellect but wholly lacked the rest. For that reason, he was unfit to serve.

      Once again, with clumsy terms like “partisanization,” the subject is Both Sided. The Democrats always appoint toward the center and assiduously follow all norms. The Republicans appoint as far to the Right as they’re able and steamroll every possible norm to seat their candidate. The Democrats’ principled stand against an ideological appointment becomes a partisan activity that apparently balances and justifies the 32 years of Republican will-to-power that follows.

  11. Submitted by Hiram Foster on 05/22/2019 - 07:02 am.

    Lots of things are happening that I never thought would never happen. Big things and important things that are not quite so big. I never thought a nominee could be confirmed to the federal bench who didn’t support Brown v. Board, but we are seeing that happen every day now.

    There was a time when I thought when I thought Congress was roughly what a lot of people refer to as a separate and equal branch of government. Well I have rejected that view entirely as of now, this is an idea that is in crisis, and I doubt if it will survive. One thing being separate and equal means is that what it does is largely unreviewable by the other branches of government. That is now changing. The position of the executive branch is that Congress cannot investigate anything really unless it has a clear legislative purpose. What this can and probably does mean is that every congressional subpoena will be review-able in federal court which becomes a de facto super legislature to which the formerly equal legislative branch becomes accountable.

    • Submitted by Paul Brandon on 05/22/2019 - 02:25 pm.

      The game isn’t over yet.
      And the Supreme’s, given Robert’s and Kavanaugh’s reluctance to make dramatic changes in legal precedent, may well grant the Trumpites some very narrow and constrained victories that do not set any new significant precedents.

  12. Submitted by Henk Tobias on 05/22/2019 - 08:27 am.

    “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.”

    This kind of he said she said BS is one of the reasons we are in this mess. One of these views has much more credibility than the other. Anita Hills’ testimony was compelling and convincing. Someone who acted as Thomas did should not be on the Supreme court, but of course the Right didn’t believe her, because…well they don’t often believe the women, do they?

    Bork too, had some very curious views that were far outside the mainstream at the time: For example, he defended the idea that states should be free to enforce Jim Crow laws, and opposed the Civil Rights Act of 1964 on the grounds that using federal law to dismantle the apartheid legal code of the post-Reconstruction South was both unconstitutional and morally wrong. This was 1987!

    Bork’s view that a state ought to be free to criminalize the purchase of contraception by married couples was considered kind of nuts at the time, but now we know that this notion hasn’t change in Right wing circles.

    The right has done a good job of cowing the press so that they don’t investigate whether what one side says has any more credibility than the other, the left can say the sky is blue, the right can say no its green and the press will report that there is controversy as to the color of the sky. It does no one any good.

  13. Submitted by Dennis Wagner on 05/22/2019 - 09:12 am.

    Well I suspect the founders (men of good faith) expected that future folks would act in good philosophical faith toward the success of the country and not personal or political ambition. Not sure there are easy ways to make laws etc. against bad faith players, It would appear the SCOTUS was suppose to be the arbitrators of the good faith philosophy, however as the article noted, looks like it is no longer acting in philosophical good faith, but with a conservative agenda. From this perspective that suggests more Americans will lose their faith in the fairness of our governemnt and our justice system, and so comes the demise of the great experiment when it only works for some and not for all. Is that not what the conservative position/goal is, the power and wealth to be concentrated in the hands of the few vs the many? .

    • Submitted by Paul Brandon on 05/22/2019 - 10:08 am.

      Ben Franklin was a skeptic:
      “A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.” This may be apocryphal.

  14. Submitted by Hiram Foster on 05/22/2019 - 09:59 am.

    The founders have been dead a long time and their views on things don’t have much to do with the politics of today.

  15. Submitted by Kathleen Castrovinci on 05/22/2019 - 10:04 am.

    I despise Mitch McConnell with every bone in my body. He is a sneaky, spiteful man who like the KING he serves(Trump), he will do everything he can to hold on to power in the US Senate. Nothing has been passed in the Senate that actually benefits the people of this country.

    And now we discover that McConnell is in the bag for Russia. McConnell went ahead and okayed the lifting of Russian sanctions against Oligarch close to Putin named Oleg Deripaska. A multi-million dollar plant is going to be built in Kentucky with Russian money. Former Sen. David Vitter who is now a Lobbyist, gave McConnell a head’s up on that deal. The Vitter asked McConnell to speed up his wife’s nomination to a Court seat that was put on hold because she was not qualified for it. She was approved a week ago. Quid Pro Quo? You ask me.

    From earlier this year. This was reported on last night on the Rachel Maddow Show. Russian influence in our politics? You betcha!

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