For someone with strong political opinions, I have been amazingly resistant to becoming embroiled in party-based squabbles. Being a Constitutional Libertarian usually results in siding with the GOP on several issues—but not always. Without that strong loyalty, I am content to sit on the sidelines while the two parties bicker about those issues that are NOT of concern to anyone outside of the party.
I had a Virginia State Senator tell me years ago that the most partisan process in Richmond was redistricting. He says the two sides usually got along well enough on other issues…but redistricting was the Rubicon. It was a no-holds-barred bloodsport where the victors (the majority party) got ALL of the spoils. There is no runner-up trophy when it comes to drawing political boundaries…and the advantages it offers are obvious.
I would imagine the Congressional equivalent of this bloodsport has become Supreme Court nominations. And we are about to see the latest evidence following this weekend’s death of long-time Associate Justice Ruth Bader-Ginsberg. (pictured)
Under the original design of our government, the Supreme Court is the most powerful component of the Judicial Branch. But over the past few generations it has become MUCH more. As Congress has abdicated more and more of their authority, SCOTUS (and the Executive Branch) has gained power. Those who want to make significant changes have learned it is very hard to get that accomplished in something as big and unwieldy as Congress. It is MUCH easier to get five out of nine justices to agree with you.
That growing SCOTUS power has been the backdrop of efforts the past few decades to make sure agreeable justices were occupying those nine seats. And those efforts have becoming increasingly more bitter and partisan.
For most of the history of this nation, Supreme Court confirmation hearings and votes were largely perfunctory, uneventful affairs. There were noticeable exceptions; but for the most part nominees were approved unless there were obvious red flags.
That began changing during the age of Reagan. Robert Bork was nominated to the court in 1987. But Democrats were afraid that he would be hostile to some of the landmark court decisions. He was defeated. The reprehensible Sen. Ted Kennedy delivered one of the most uncalled-for summations in the history of the Senate:
“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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy”
In the process, the verb “to Bork” was born. The Oxford English Dictionary defines it:
“To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”
Bork’s treatment ushered in a new era of scrutiny for Supreme Court nominees. Four years later, Democrats upped the ante in the nomination of Clarence Thomas. A shocked nation listened as august Senators began asking questions about pubic hairs and the like. In short, the SCOTUS nomination process had become a slightly more dignified episode of Jerry Springer.
But curiously this seemed only to apply to Republican Presidential nominees. Those made by Democrats (Kagan, Sotonayor, Ginsberg) were largely uneventful.
Below is a list of SCOTUS nominees, following by the hours used during their confirmation hearings, and the number of questions asked.
1981 Sandra Day O’Connor 12 8
1987 Robert Bork(NC) 30 15
1987 Anthony Kennedy 11 47
1990 David Souter 20 4
1991 Clarence Thomas 25 18
1993 Ruth Bader Ginsburg 20 20
1994 Stephen Breyer 20 5
2005 John Roberts(CJ) 20 231
2017 Neil Gorsuch 20 324
2018 Brett Kavanaugh 48 1,278
You don’t need to have a good memory to harken back a couple of years ago to the Brett Kavanaugh hearings. At the risk of utilizing hyperbole, I will say that it was a low point in the history of US politics. Senate Democrats tried to ruin the life and reputation of a man without a SHRED of contemporary corroborating evidence. Their stenographers in the media dutifully amplified every allegation, each more outlandish than the previous one. Even as the claims stretched the limits of incredulity the attempts to smear continued unabated. I will never forget it.
With that in mind, I ask myself today that if the party roles were reversed, would Democrats listen to the better angels of their nature and forego an attempt to nominate a justice while they had the White House and a Senate majority. And then I begin laughing heartily. We know the answer. This party was willing to metaphorically murder a nominee in 2018 whose only provable sin was disagreeing with them. Democrats have abundantly demonstrated there is NOTHING they won’t do in order to maintain control of the Supreme Court.
Democrats…it was YOU that turned SCOTUS nominations into a winner-takes-all bloodsport. YOU are the ones who ended all expectations of comity & compromise. You went scorched Earth on Kavanaugh. And NOW you’re asking for restraint?
Quite often I am an interested but uninvolved observer of partisan bickering on Capitol Hill. Without a party I don’t have a dog in the hunt. But I will say this for Republicans. Their track record on approving judges with originalist views on the Constitution is FAR superior to Democrats. And as someone who views the Constitution like a Christian views the Bible, that is important to me.
Piss off, Democrats. Enjoy Associate Justice Barrett.