US Supreme Court nominations have gone ‘borking’ mad

Image Credit: Wikimedia Commons: Joe Ravi, CC-BY-SA 3.0

Josh Byrne reflects on the recent history of US Supreme Court nominations, with particular focus on attempts to prevent the confirmation of conservative Justices.

Bork. verb: to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification. Example: “We’re going to bork him. We’re going to kill him politically...This little creep, where did he come from?” - Florynce Kennedy to a National Organization for Women conference following George H.W. Bush’s nomination of conservative Justice Clarence Thomas in 1991.

When President Trump nominated Amy Coney Barrett to the US Supreme Court, there was widespread indignation within the Democratic party. Four years previously, the Republican-controlled Senate had refused to consider President Obama’s Supreme Court nominee, Merrick Garland, as a replacement for the late Justice Antonin Scalia. It was argued that it would be inappropriate to fill a vacant seat during an election year. This time around, Senate Majority Leader Mitch McConnell eagerly expedited the process to ensure that Amy Coney Barrett was confirmed before November 3rd. Republicans have maintained that the situations are not analogous. In 2016, they point out that the White House and Senate were not aligned. Historical precedent does indeed corroborate their assertion that Supreme Court Justices are rarely confirmed in an election year when these branches of government are not controlled by the same party. In this writer’s view, however, there is an entirely more satisfactory explanation for the rush to confirm Amy Coney Barrett.

For context, it is necessary to travel back as far as 1987, when President Reagan nominated Robert Bork to the Supreme Court. Liberals resented the judge’s textualist approach to constitutional interpretation, as well as his antipathy towards judicial activism. During Bork’s nomination process, Ted Kennedy declared on the Senate floor that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, [and] schoolchildren could not be taught about evolution”. Quite apart from the dubiousness of this pronouncement, students of US history might wonder how Ted Kennedy had suddenly become the ultimate moral arbiter. His attack against Bork on grounds of racial prejudice is particularly ironic considering Kennedy’s Democratic colleague in the Senate at the time, Robert Byrd, was a former exalted cyclops of the Ku Klux Klan. 

Nonetheless, Kennedy’s progressive disciples dutifully responded to his rallying cry. In televised hearings, the American public saw Bork chastised by numerous Democratic Senators for his conservative philosophy. Bork was also mercilessly vilified in the media. Eventually, the Senate voted against his confirmation by 58 votes to 42, the biggest margin of any failed Supreme Court nominee in history. Admittedly, it is at least arguable that some of the reservations about Bork were valid. For example, when Bork was Solicitor General during the Nixon administration, he acquiesced to the President’s request to fire Special Prosecutor Archibald Cox, who was tasked with investigating the Watergate scandal. The Democrats certainly had a case that he exhibited a lack of political independence, a trait which would undoubtedly be unbecoming in a Supreme Court Justice. The Senators did not solely pursue this avenue of attack, however. By electing to portray Bork as a radical, sexist, segregationist, a new strategy emerged within the Democratic party which has plagued the judicial confirmation process ever since. It also resulted in the introduction of a new verb into US political lexicon. 

Fast forward to 2018, and Trump nominee Brett Kavanaugh was set to face the same process. In what can only be described as ‘borking’ on steroids, Senate Democrats used every trick in the book to deter Kavanaugh’s confirmation. When initial attempts to paint the Justice as a Trump loyalist seemed to gain little traction, they unveiled Christine Blasey Ford, a woman accusing Kavanaugh of sexual assault that was alleged to have occurred almost 40 years earlier. It is curious that Justice Clarence Thomas also faced scrutiny for purported sexual misconduct on the eve of his confirmation. The nature and timing of the allegations are uncannily similar. Despite a lack of corroboration, Ford’s testimony had the desired effect from the Democratic perspective as the media began to turn on Trump’s nominee.

With the nomination hanging in the balance, Republican Senator Lindsay Graham of South Carolina took centre stage. In an impassioned speech, he told Kavanaugh that “[y]ou got nothing to apologize for. When you see Sotomayer and Kagan [two of Obama’s appointments to the Supreme Court], say hello because I voted for them.” He then lambasted his Democratic colleagues for their behaviour, calling the hearing an “unethical sham”. Graham also expressed sympathy towards Ford, stating that she was as much of a victim as Kavanaugh. There was nothing feigned or exaggerated about Graham’s sentiment and it is entirely plausible that he single-handedly rescued Kavanaugh from the abyss.

Even though Kavanaugh was eventually confirmed by a narrow margin, the ordeal was evidently a turning point for Graham personally. He has gone on record saying that “[a]fter Kavanaugh, the rules have changed as far as I’m concerned”. In this respect, the confirmation of Amy Coney Barrett may be regarded as the Democrats’ comeuppance for their thirty-year long strategy of attempting to ‘bork’ conservative Supreme Court nominees. While the questioning of Barrett paled in comparison to the treatment that Kavanaugh endured, it is nevertheless unfathomable that Senator Cory Booker had the audacity to ask whether the mother of two adopted Haitian children “condemns white supremacy”. If nothing else, this highlights the shallow nature of the identity politics deployed by the left, pursued exclusively in furtherance of a clearly defined ideological agenda.

The aim of this piece is not to cast aspersions on the accusations levied by Ms Ford. Rather, the purpose is to draw attention to a pattern of political opportunism which has the effect of undermining the judicial appointments process. Many Democratic Senators ruthlessly eviscerated Brett Kavanaugh for his alleged impropriety. It is highly revealing that none of them came forward in support of Joe Biden’s accuser, Tara Reade, earlier this year. While Biden’s denial was no less credible than Kavanaugh’s, their silence lends credence to Senator Graham’s belief that Christine Blasey Ford was used as a pawn by unscrupulous partisans. 

The unfortunate legacy of ‘borking’ must be overcome in order to restore confidence in the American judicial process. Frankly, the practice of smearing the character of an individual with whom you disagree politically is entirely antithetical to democratic ideals. Both parties are guilty of using excessively visceral rhetoric to achieve their aims. In recent history, however, there are no instances of Republicans deliberately and unapologetically tarnishing the reputation of a supposedly liberal Supreme Court nominee. The treatment of Ruth Bader Ginsburg, for example, may be starkly contrasted with that of Bork and Kavanaugh. The late Justice was confirmed by an overwhelming majority, even gaining support from steadfast conservatives such as Mitch McConnell.

It is this writer’s view, therefore, that Democratic politicians and supporters are wholly undeserving of sympathy when they complain about the unfairness of Barrett’s nomination. As the saying goes, “you reap what you sow”, and they have sown more than most.