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Try to Understand the Fight
Remember Robert Bork!
Tomorrow, President Trump will nominate Amy Coney Barrett to the United States Supreme Court (stop acting surprised). To understand the fight for Barrett the GOP is willing to have, there are two relevant issues that must be understood.
First, though Democrats have a legitimate grievance about both Merrick Garland’s treatment at the hands of Republicans, Republicans have many, many more grievances that have piled up since the Reagan Administration.
Even a College Republican moderately engaged knows how Democrats assassinated Judge Robert Bork’s character. In 1987, after a series of personal attacks from Democrats, the Senate rejected his nomination to the United States Supreme Court. Bork was unquestionably qualified, but, led by Senator Ted Kennedy, Senate moderates voted against him because of his views on abortion. His seat was eventually filled by Anthony Kennedy. Thereafter, columnist William Safire turned “bork” into a verb to describe savage personal attacks against a judicial nominee.
In 1991, Clarence Thomas got borked, but survived his confirmation process with, ironically, an assist from Senator Joe Biden who chaired the hearings. Thomas’s nasty confirmation fight concluded with 52 Senators voting for him. Thomas, famously, was soaking in the bathtub when his wife told him the news. “Whoop-de -damn-doo!” Thomas yelled to her.
During the Clinton Administration, Republicans did not level withering personal attacks on any of Clinton’s nominees. The strongest attack against Ruth Bader Ginsburg came from Democrats who noted she had zero African-American law clerks in her years on the D.C. Circuit Court of Appeals. Ginsburg promised to do better on the Supreme Court and did, by having one African-American clerk during her twenty-seven years.
In the Bush years, John Roberts was roughed up over his jurisprudence, not his personal life. Samuel Alito, however, was accused of bigotry in such vicious terms his wife sat behind him crying. Roberts and Alito both made it to the Supreme Court, but Democrats started blocking Bush’s appellate court nominees, including Miguel Estrada. Senator Chuck Schumer openly said he did not want Republicans setting up a Hispanic nominee for the Supreme Court, which Estrada would have been.
In the Obama years, Republicans reciprocated by filibustering Barack Obama’s nominees to the circuit courts even as they let Kagan and Sotomayor onto the Supreme Court. Harry Reid, in 2013, led the Democrats to kill the filibuster for all judicial nominees except the Supreme Court. When asked if Republicans may finish off the nominations filibuster by ending the Supreme Court filibuster, Reid said he did not care. In 2014, the GOP took back the Senate, blocked all of Obama’s nominees, and blew up the filibuster for the Supreme Court after blocking Merrick Garland.
Then came the Kavanaugh hearing. Democrats who think Kavanaugh a sexual predator do not understand how those hearings radicalized Republicans on Supreme Court fights. With no witnesses, Kavanaugh’s accuser made her case and the media trotted out multiple other supposed victims who themselves had no witnesses. Republicans view the Kavanaugh hearing as a combination of the Bork and Thomas hearings and are still livid. Consequently, they have no reason to compromise or restrain themselves now.
Secondly, the GOP is playing the odds. They expect to lose Arizona, Colorado, and Maine, but win Alabama. That gives the GOP a one seat majority. If they lose North Carolina, that gives them fifty seats. If they lose Iowa, they have forty-nine seats, but multiple Democrat Senators are already on record this past week opposing scrapping the filibuster. That prevents court packing and more. The odds are in the GOP’s favor and, by Election Day, Ginsburg’s seat should be filled and Robert Bork finally avenged.