The Supreme Court Confirmation process after Bork

and how it changed judicial nominations forever

I was a Senate staffer for two of the most epic Supreme Court nomination battles of all time.

The first one, the nomination of Robet Bork, happened 35 years ago. That battle was bookended by the confirmation of Clarence Thomas as an Associate Justice four years later.

In between those two nominations, Justices Anthony Kennedy and David Souter were confirmed by without much fuss. Given the judicial centrism of Kennedy and the unapologetic liberalism of Souter, maybe the Right should have put up a fight.

At a political reception in Washington in 1990, I and about a dozen or so khakied and blazered Capitol Hill aides were listening to a Washington Post columnist bemoan the failure to put Bork on the Supreme Court.

“If you knew anything about Senate mail, you’d understand.” I told him.

When Robert Bork was nominated, I had only been working in the mailroom of Senator Daniel Patrick Moynihan (D-NY) for 3 months. And week in and week out, Senator Moynihan got about 5,000 letters a week. Until Reagan nominated Bork, then that numbered quadrupled. And Moynihan’s mailroom wasn’t unique. Tons of mail came in about Bork…just Bork. No one was writing about anything else.

The Bork nomination was a risk and a lot of likely “yeahs” became politically safer “nays”. And October 23, 1987, the nomination was rejected 42-58.

After Bork, Republican nominations became suspect and Democratic nominations careful.

Before Anthony Kennedy got the nod, Reagan nominated Daniel Ginsberg, but he got torpedoed over pot smoking.

David Souter was nominated amid minor disgruntlement that was more about White House Chief of Staff John Sununu pushing the nomination than anything else. Realists on the Left figured out fairly quickly that any state that had “Live Free or Die” on its license plates wasn’t producing right wing authoritarians bent on dismantling the Constitution.

The nomination of Clarence Thomas was in many ways, much more than the Bork nomination, the final nail in the coffins for political neutrality over the judiciary.

Thomas’s poor legal qualifications, the Anita Thomas allegations, and the partisan gamesmanship that occured during the nomination itself got spun out into a tight vote in which 46 Democrats and 2 Republicans opposed and 41 Republicans and 11 Democrats approved. Seven of the Democratic votes for Thomas came from Southern Democrats and the two Republicans voting against Thomas were steadfastly pro-choice.

The Thomas vote stands as the last time a President got a Justice on the Supreme Court without his party controlling the Senate.

Since then, there have been 12 nominations with 2 withdrawals and 1 not considered. The 5 Democratic nominations have slowly devolved into partisan rancor despite each of the nominee’s indisputable qualifications. Of the 5 Republican nominations¹, 2 had less than stellar qualifications (Kavanuagh and Barrett), 2 had conflict of interest issues (Alito and Kavanaugh) and 4 could be reasonably characterized as having a judicial agenda (Alito, Gorsuch, Kavanaugh, and Barrett).

Actually, one could include Chief Justice Roberts in the mix on having a judicial agenda as he also was a member of the Federalist Society — something he had conveniently forgotten during his confirmation process. If the Democrats are smart, they should figure out a way to paint the Federalist Society as a radical right organization — it is one, Democrats just need to create an effective message to sell the political middle that it is one.

The battle to replace Stephen Breyer, the last Justice confirmed with overwhelming bipartisan support, will come down to getting 50 Democratic votes plus Vice President Harris. About the only guarantee the process holds is that President Biden’s nominee will have a hearing and that the nomination will not be filibustered.

The vote to eliminate the filibuster for Supreme Court nominations was put in place, because the Democrats were filibustering Gorsuch not because they might do so. A look at votes against Justices Sotomayor (31) and Kagan (37) are ready exhibits for why it would be necessary to pass such a rule.

The Democrats should have been unsurprised that Merrick Garland was denied a hearing. Associate Justice Kagan was nominated to the Fifth Circuit by President Clinton, but the Chairman of the Judiciary Committee, Orrin Hatch (R-UT), refused to have a hearing for her.

The biggest question is what will Joe do with the nomination - Manchin not Biden. Senator Manchin voted to confirm Justices Gorsuch and Kavanaugh, but opposed Justice Barrett — even he could see how ridiculously partisan and hypocritical the process has become.

1. John Roberts was originally nominated to replace retiring Justice Sandra Day O’Connor. When Chief Justice Rehnquist died, Roberts’ nomination was withdrawn as O’Connor’s replacement and resubmitted to replace Chief Justice Rehnquist.