During the often rough-and-tumble Senate confirmation hearings held for President Obama’s first Supreme Court nominee, Sonia Sotomayor, I detected what I then perceived to be the whiff of vengeance among her Republican inquisitors. Sotomayor was well qualified to serve on the High Court, was well within the mainstream of judicial thought, and had, a somewhat moderate judicial record. Then it occurred to me that the nominee might be a target of retribution for the rough handling that Democrats had meted out to the likes of Roberts, Alito, and long before them, Robert Bork. I was inspired, then, to write a diary, that I have excerpted below. I believe that Republicans drew a tiny amount of blood from Justice Sotomayor, but perhaps not enough to permanently satisfy their thirst.
July 15, 2009
Ronald Reagan nominated Judge Robert Bork for a seat on the Supreme Court on July 1, 1987. The selection of Bork was a symbolic "throwing down of the gauntlet" that ignited an epic battle between Senate Conservatives and their Liberal and Moderate counterparts. Those on the Far Right breathlessly proclaimed the confirmation hearings as a struggle for America’s soul. After days of contentious hearings and a dramatic floor vote, Bork was shown the door by a 58-vote, mostly-partisan majority.
Bork was categorized as an extremist by many and out of the main stream by most. No one questioned his qualifications or his preparation for the job. But his strident views on privacy, reproductive rights, civil rights, and other hot-button issues even put him at odds with Moderate Republicans like John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (R-PA), Robert Stafford (R-VT), John Warner (R-VA) and Lowell P. Weicker, Jr. (R-CT); a breed that has since nearly become extinct. The term "activist judge" that we hear being bandied about today, aptly describes Bork, except that he was an activist in ways that pleased his supporters.
Bork’s rejection was a stinging blow to Reagan and Movement Conservatives as a whole. Following Bork's crash, and the subsequent Douglas Ginsberg fiasco, Reagan punted on his next nomination, resulting in the seating of the somewhat more moderate, and subsequently swing-voting, Justice Anthony Kennedy. But Bork’s high-profile dismissal came with a price that, like a large credit card debt, never seems to get paid off in its entirety. With the exception of the Ginsburg and Breyer nominations, which proceeded with a minimum of histrionics from the Republican Senate caucus, many other Democratic appointments, particularly during the Clinton years, have met with harsh opposition from the GOP. These include appointments to the Federal judiciary, agency administrators, and diplomatic posts. Each and every time this occurs, it is as if the presence of Robert Bork can be felt in the chamber.
Whoever is nominated to fill the shoes of Justice Stevens will not have an easy path through the confirmation process. The Republicans, still licking their wounds from their failed attempt to kill health Care Reform, and their need to fire up their base, will come to these hearings loaded for bear. But in the shadows lurks an unspoken need to once again avenge the rejection of Robert Bork, who, as much as anything else, was both a symbol and a martyr in Ronald Reagan’s culture war. To whomever has the honor to receive Obama’s nomination, I wish you a thick skin and the courage to withstand an undeserved barrage of flagrant partisanship and innuendo. The Republican Senators on the Judiciary Committee and their thinly-veiled racism failed to throw Justice Sotomayor off her game. May they be even less successful this time around.
Postscript: I no longer consider Anthony Kennedy to be either a moderate or a swing vote.