It didn’t take long. Within minutes of confirmation that Supreme Court Justice Antonin Scalia had passed away on February 13th, the lines were drawn: the President shouldn’t even bother sending a nominee to the Senate, where certain rejection awaits – because we don’t fill judicial vacancies in an election year…or…the Senate has a responsibility to give a nominee an honest hearing, and should vote for said nominee based on their qualifications for the highest court in the land.
Of course, these positions are both fantasy in 2016, in the same way a Rockefeller Republican or a Southern Democrat is now fantasy. I eagerly await the dinosaur-like museum installation documenting the existence of Sam Nunn or Jacob Javits. Unlike the dinosaurs, however, we actually have an exact time when the rules changed for the nomination and confirmation of Supreme Court justices…the summer of 1987.
Getting “Borked” became a verb after his confirmation hearings, but nobody can say they didn’t see it coming. Justice Lewis Powell retired in 1987 (a fairly conservative justice, he had been nominated by President Nixon in 1971, and confirmed by an 89-1 vote), but Senate Democrats had warned President Reagan that anybody too ideological would run into “a solid phalanx” of opposition.
On July 1st, 1987, Reagan nominated Bork, anyway. 45 minutes later, Senator Ted Kennedy unloaded on the Senate floor. Four days later, Republican Senator Bob Packwood said he would participate in a filibuster if Bork wouldn’t publicly declare that Roe vs Wade was settled law (times have changed). And it went downhill from there for Bork: He eventually was defeated 58-42, largely on party lines.
There was no debate about Bork’s qualifications to be a Supreme Court justice – by all accounts, he was a brilliant legal mind. He also was unquestionably an originalist (not unlike Justice Scalia), and while he was hardly the first Supreme Court nominee to be rejected or withdrawn (he was actually the 28th nominee to not be confirmed), he was one of the few to be rejected entirely on ideological grounds. He also was arguably the most qualified nominee to be rejected in American history.
It is extremely unlikely that President Obama will nominate somebody as ideologically pure on the left as Bork was on the right. Indeed, rumors of Nevada Governor Brian Sandoval – a Republican – being vetted suggests Obama will look for somebody who would make Senate Republicans look petty to not even consider.
But the analogy from 1987 that is relevant to 2016 involves what happened after Bork’s rejection by the Senate. After Judge Douglas Ginsberg was nominated – and then withdrawn due to the discovery that Ginsberg had used marijuana in college (did I mention times have changed?) – the country was approaching a presidential election year. Reagan knew he had to get a more amenable nominee to the Democratic-led Senate to have a chance of confirmation.
In late 1987, Judge Anthony Kennedy was nominated, and confirmed without opposition, 97-0. For over 25 years, Justice Kennedy has been the swing vote on many, many 5-4 decisions. It is difficult to overstate how different the Court would have looked for the next 25 years had the Senate confirmed Bork, rather than Kennedy.
Republicans and conservatives may be disappointed by this break of the game, but it was evidence that government could still work. A Republican icon (Reagan) and a liberal icon (Ted Kennedy) could agree that Anthony Kennedy was acceptable to all involved, and certainly qualified for the Supreme Court.
Is there any question but that this is what should happen in 2016? President Obama won the last presidential election, and he has the right (indeed, the responsibility) to nominate a qualified person for the Court. He also has the political responsibility to consider bring forward somebody who has a legitimate chance of being confirmed in a Republican-led Senate, in a presidential election year.
The Republicans in the Senate have dominated two of the last three election cycles (2010 and 2014), and consequently have a majority of the Senate (not to mention dominant majorities in the House and in much of the country’s state-level positions). They also have the right – especially in the “post-Bork” era, to be fairly demanding about who they are willing to confirm. A liberal version of Bork would never get by, nor should she or he. The game changed in 1987, whether we like it or not.
But Senate Republicans do have an obligation to do what their Democratic brethren did in 1988 – if the President nominates somebody who is both well-qualified, and is a strong acknowledgement of the other party’s leverage in the process, then that nominee should have a legitimate chance of being confirmed.
This is how an institution as important as the Supreme Court, where the average age of nominees has been dropping as presidents more explicitly try to squeeze as much “lifetime” out of the lifetime appointment as possible, can work in a country that feels awfully divided right now.
One might expect that a number of other current justices – including liberals like Justice Ginsberg, and conservatives like Justice Thomas – will likely be replaced in similarly-partisan times. If so, and if we are willing to allow nominees to be “Kennedyed” as much as we now allow them to be “Borked”, we may end up with a Supreme Court full of relatively moderate justices over time. We live in a time when it is hard for voices of moderation to be heard in the cacophony of hyperpartisanship. It would be comforting if the highest judicial voice of the land was a voice of moderation.