After successfully delivering the secret knock and password, a beleaguered, unshaven older man walks into the bunker, stomping out the cold from his feet on the way in. He walks over to one of the garbage-can fires, where his younger yet battle-hardened comrades are gathered, strategizing about the fight to come. As the grizzled veteran rubs his hands over the flames, his eyes glinting in the firelight, he says to them, wistfully, “You know, Supreme Court nomination fights weren’t always like this.”
It’s not quite that bad yet in Washington, but the year is young and the fight over Neil Gorsuch, President Trump’s nominee for the Supreme Court, has just begun.
Whenever there is a Supreme Court vacancy, a preemptive wave of exhaustion comes over me. It’s the same arguments every time.
Some process arguments migrate from one party to another depending on which side is on defense or offense. “The nominee deserves a speedy hearing and confirmation,” each side yells when their guy is in the White House. “We have an obligation to take the advise-and-consent role seriously and cannot rush the process,” each side insists when the other team controls the White House. Each party has an endless supply of quotes to throw at the other, proving their hypocrisy.
For instance, under Presidents George H.W. Bush and George W. Bush, respectively, Democratic Sens. Joe Biden (back when he chaired the Judiciary Committee) and Chuck Schumer argued that the Senate must not consider any appointments during a presidential campaign. Under President Barack Obama, Republicans took that advice and refused to consider Obama’s nominee, Merrick Garland.
But when it comes to ideological arguments — my favorite kind — the team jerseys never change.
Republicans, rightly by my lights, argue that the Supreme Court should not act like an unelected legislature, making up laws and Constitutional rights as it pleases. Democrats argue, wrongly in my opinion, that the Constitution is a “living document” that must be reinterpreted and given new meaning with every generation. I think this is a garbage argument and have explained why I think so in countless columns. No doubt I’ll have to again sometime soon.
But there’s another argument worth dealing with. Many conservatives — myself included — argue that the rejection of Robert Bork is what poisoned the Supreme Court nominating process. On one level, I think that is right. Bork, whom I knew, was one of the great legal minds of the 20th century.
Even Biden admitted before Bork’s nomination that, barring some unforeseen skeletons in his closet, Bork was simply too qualified to be rejected. “Say the administration sends up Bork,” Biden told the Philadelphia Inquirer in November 1986, “and, after our investigations, he looks a lot like [earlier Reagan nominee Antonin] Scalia. I’d have to vote for him, and if the [special-interest] groups tear me apart, that’s the medicine I’ll have to take.”
Scalia, recall, had been confirmed unanimously, 98-0.
It turned out that Biden would balk at taking his medicine. With the help of a vile, demagogic attack from Ted Kennedy and left-wing interest groups, Biden helped tank Bork’s nomination. And thus began the process of scorched-earth warfare over Supreme Court confirmations.
While I think the “Bork bitterness” interpretation explains a lot, it also misses an important point. Such battles are inevitable when the Supreme Court becomes another legislative branch. People balk at all the money special interests now spend on these fights, but that money pales in comparison to what is spent by lobbyists on congressional elections. So why should it surprise anyone that when the Supreme Court acts like another Congress, special interests will act likewise?
If forced to fix blame on the primary cause of this mess, it was the 1973 Roe v. Wade decision, which invented a constitutional right to abortion. Even Ruth Bader Ginsburg has conceded that the case short-circuited the democratic process and prevented a national consensus from forming on how to deal with the issue.
“My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” she said in 2013 on Roe’s 40th anniversary.
Whatever you think of Roe v. Wade, the decision is emblematic of the court’s evolution into a lawmaking body. Once that happened, it was inevitable that the process would be Borkified. What’s remarkable is not that it happened, but that it took so long.