Partisan Supremacy Over the Supreme Court
Our Supreme Court is another way our nation separates.
By Etelson | 11/14/20
At the announcement of Justice Ruth Bader Ginsburg’s death, it is without a doubt that the legacy she’s left behind is cemented in Supreme Court history. With Mitch McConnell’s rush to appoint a new Associate Justice despite his refusal to allow a Senate hearing for potential liberal Justice Merrick Garland in 2016, backlash is expected. The Republicans’ goals of appointing a Justice during a Republican’s term beg the questions — why has Mitch McConnell’s focus been so tied on the court’s bench? Since when has the fight for the bench truly been ignited? What implications does RBG’s death have for future cases that will eventually be brought to the court?
The Borking Procedure, and the Senate hearing of Robert Bork.
Flashback to July 31, 1987: Judge Robert Bork is nominated by Ronald Reagan. Bork was rather educated and experienced: he received his law degree from the University of Chicago and practiced law in Chicago until 1962, when he joined the faculty of Yale Law School. Furthermore, he also served as solicitor general under President Richard Nixon. As solicitor general, Bork argued on numerous cases on behalf of the government including Parker v. Levy (1974), which established for the first time the limits of free political expression ; Saxbe v. Washington Post Co, which expounded on the first amendment rights of the press, (1974); and Wolff v. McDonnell (1974), which elaborated on the rights of those incarcerated. His career started again when he was nominated by Reagan to the U.S. Court of Appeals for the District of Columbia Circuit, where he advocated judicial restraint, a theory of judicial interpretation that urges jurists to take into consideration and check the exercise of their own power when it comes to striking down laws. Bork’s public image wasn’t always as shiny as it seemed — which is precisely why he was later demonized in his confirmation hearing before the Senate. His role in the Saturday Night Massacre within the Watergate Scandal, television ads portraying him as an extremist, being opposed by the ACLU, and perhaps most importantly, Democratic Senator Ted Kennedy's speech that degraded Bork and a future with him on the court, ultimately led to his downfall. As Kennedy himself had put it, “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.” With the Senate hearings on his confirmation, the decision was ultimately set; the Democrat-controlled Senate would resist Bork’s confirmation. The Senate ended up voting against Bork’s confirmation by a vote of 58-42, of which only 2 Democrats voted in favor of him,. This was the biggest margin of any failed Supreme Court nominee in history, and ultimately brought forth the process known as “borking”, which is purposefully derailing a confirmation by vehemently questioning a nominee’s legal methodology and philosophy, as well as political views. Bork had been borked, and despite his legal experience, education, and impressive resume, one thing mattered above all: his originalist interpretation and conservative views on the Constitution — which a Democrat-controlled Senate could not allow on the bench.
Commencement of Sexual Allegations on the court, and the confirmation of Clarence Thomas.
Next up: the appointment and nomination of Clarence Thomas. Thomas attended Conception Seminary from 1967-1968 and received an A.B., cum laude, from College of the Holy Cross in 1971 and a J.D. from Yale Law School in 1974. Throughout his career prior to the court, he was well experienced, having served as an Assistant Attorney General, Legislative Assistant, and as Chairman of the U.S. Equal Employment Opportunity Commission. Given his extensive judicial background and employment experience at different levels of government, it was only natural for him to be recommended to succeed the first African American Supreme Court Justice, Thurgood Marshall. However, there was one crucial and important factor that would of course motivate his nomination by then-Republican President George H.W Bush and stir opposition amongst the Democratically-controlled Senate — the fact that he was conservative. The battle to tip the Supreme Court in favor of either Democratic or Republican influence was at its high, and thankfully for the Democrats, they wouldn’t need to filibuster or attempt to “bork” Thomas; the Republicans were in for a surprise. In the midst of the nomination proceedings, Thomas’s views on abortions and other issues at the time sparked intense opposition and criticism from Democrats, just as they did with David Souter the year before. However, the most devastating blow to the confirmation of Justice Thomas was the Anita Hill sexual allegations. On October 11, 1991, Hill was called to testify during the hearing. She said she was testifying as to the character and fitness of Thomas to serve on the high court and was ambivalent about whether his alleged conduct had in fact risen to the level of being illegal sexual harassment. Throughout her testimony, she described a plethora of supposed sexual allegations that Thomas made that which no doubt placed a question on his character. Ms. Hill said that Judge Thomas had repeatedly asked her to go out with him, despite her refusal on numerous occasions. She claimed he would talk about sex in vivid detail, describing pornography he had seen involving women with large breasts, women having sex with animals, group sex and rape scenes. The testimony truly opened the room to discussions that had never taken place before on the Senate floor; however, Thomas overcame the odds and assumed the bench with a confirmation of 52-48. Thomas remarked in his closing statement, “This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.” It was a difficult road for Thomas, a decisive win for the Republicans, and heartbreaking loss to the Democrats.