How Democrats Nuked Decency in Judicial Nominations

As Democrats prepare to filibuster President Trump's Supreme Court nominee Neil Gorsuch, an eminently qualified, even-tempered, genuinely impressive man who was unanimously approved on a voice vote as a 10th Circuit Court of Appeals nominee just 10 years ago, it's worth reminding America that this is just the latest in a sad chapter of Democrat obstruction, incivility, and outright character assassination of Republican judicial nominees. 

Senate battles over Supreme Court nominations have been relatively common throughout American history, but in the 20thCentury, extreme opposition to candidates for the High Court became an increasingly Democratic tradition.

Of the seven Democratic Presidents elected after 1900, not one had a nominee rejected in a Senate vote. Only Lyndon Johnson, whose nomination of Associate Justice Abe Fortas to be Chief Justice was withdrawn, and Barack Obama, whose nomination of Merrick Garland as Associate Justice never made it out of the Senate Judiciary Committee, had their picks stopped.

Conversely, of the 12 Republican Presidents elected after 1900, six had their nominations blocked. Richard Nixon himself had four different unsuccessful appointees: The Democrat-controlled Senate voted down Clement Haynsworth and Harrold Carswell, while Nixon withdrew the nominations of both Mildred Lillie and Hershel Friday when it became clear they wouldn’t be confirmed.

In 1987, though, Democrats ramped up their opposition to a Ronald Reagan appointee to a degree never before seen in American history. Just a year after the Senate confirmed the very conservative Antonin Scalia in a 99-0 vote, Democrats decided to make a stand on the nomination of Robert Bork.

Within 45 minutes of Bork’s nomination, Ted Kennedy blasted him in a speech televised across the nation, infamously saying:

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.

Never mind that just five years earlier, in 1982, the Democratic Senate had confirmed Bork unanimously on a voice vote to serve as a U.S. District Court Judge, Democrats had decided that Bork was simply too conservative to serve on the Supreme Court.

In a first, a television ad was produced in opposition to Bork’s nomination, and for the first time in American history, the nomination of a Supreme Court Justice became a political campaign, complete with attack ads from special interest groups and even dirty tricks.

A handwritten list of Bork’s video rentals was leaked to the Washington City Paper and even though there was nothing salacious, the City Paper published the list. This remarkable invasion of Bork’s privacy led to the passage of a federal law protecting the "wrongful disclosure” of video tape rentals or sales.

There was, it seemed, no depth to which the Democrats would dive to destroy Bork, and they were ultimately successful, as the Senate blocked his nomination in a 58-42 vote.

Emboldened by their ability to take Senate fights public (aided, as they are today, by a compliant press), the Democrats pressed their advantage—so much so that their tactic of vicious opposition to a Republican nominee simply for being a Republican nominee became known as “Borking.”

When Reagan nominated the eminently qualified Douglas Ginsburg to replace Bork as his Supreme Court nominee, Democrats once again dug up dirt in an effort to derail his nomination.

Almost immediately, a former Harvard classmate of Ginsburg’s told National Public Radio’s Nina Totenberg that Ginsburg occasionally smoked marijuana in the 1960s and 70s—both as a student and as a professor.

Senate Democrats seized on this and feigned moral indignation, which was ironic since then, as now, many Democrats supported the legalization of marijuana. Still, their opposition meant that Ginsburg would not be confirmed, and President Reagan pulled his nomination and nominated the far more liberal Anthony Kennedy, who was confirmed on a 97-0 vote.

The message was now clear: Any Justice who was not perceived to be at least somewhat liberal in his Constitutional interpretation would be bitterly opposed, and the Democrats proved this just three years later.

In October of 1989, President George H.W. Bush nominated Clarence Thomas to serve on the United States Court of Appeals for the District of Columbia—replacing Robert Bork, who had resigned in disgust at the way he had been treated during his confirmation hearing.

On March 6, 1990, the Senate easily confirmed Thomas, but just 16 months later, when President Bush nominated Thomas to replace the retiring Thurgood Marshall, Democrats resumed their all-out character assault.

As Thomas’ confirmation hearing was wrapping up, a leaked FBI interview with an attorney named Anita Hill, who worked with Thomas at both the Department of Education and the Equal Employment Opportunity Commission, revealed allegations of sexual harassment.

Sensing an opportunity to block a conservative replacement for the very liberal Marshall, Senate Democrats called Hill to testify and accepted written statements from two other women who didn’t claim that Thomas harassed them, but said he made them feel uncomfortable.

Naturally, none of these allegations were provable, but the charges were enough to sully Thomas’ reputation so much that he lashed out at the Democrats’ bullying, famously saying:

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.

Ultimately, Thomas was confirmed on a razor-thin 52-48 Senate vote, but Democrats had once again demonstrated their ability and desire to derail Republican Supreme Court nominations by literally any means necessary.

And within a year, they would expand their unprecedented obstructionism beyond just the Supreme Court.  In the summer of 1992, The New York Times reported:

In the latest battle in the war for ideological control of the Federal courts, the Democrats who control the Senate have begun to delay confirming some of President Bush's nominees for major judgeships to preserve the vacancies for Gov. Bill Clinton to fill if he is elected President.

The action is the outcome of a sharp behind-the-scenes debate in which many Democrats have argued that the Senate should go further and stop approving any of Mr. Bush's judicial nominations in the waning months of an election year.

After that story ran, Democrats on the Judiciary Committee gave just one Bush nominee a hearing.

That same summer, then-Senator and Judiciary Committee Chairman Joe Biden took to the floor of the Senate to articulate what came to be known as the “Biden Rule”—Democrats’ belief the Judiciary Committee should not hold hearings should a Supreme Court vacancy open up in the final few months before a presidential election.

Should a Justice resign this summer and the President move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.

Mr. President, where the Nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not--and not--name a nominee until after the November election is completed.

A vacancy never opened up, but the Democrats had made their point loud and clear: Any Republican judicial nomination would either be ignored or viciously attacked.

Interestingly enough, Republicans didn’t return the favor, and President Clinton’s two Supreme Court nominees—Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994—sailed through with a total of 12 Senate votes against the two of them.

Naturally, when Democrats lost the presidency six years later, they went right back to stopping Republican judicial nominees.

In 2000, George W. Bush was elected in the closest presidential election in American history, but by the time he took office in January of 2001, a substantial number of liberals refused to believe that his election was legitimate. “He was selected, not elected” became a common refrain, referring to the Supreme Court’s decision in Bush v. Gore that ended Democratic candidate Al Gore’s recount in the contested state of Florida and effectively awarded the presidency to Bush.

Because of this perceived illegitimacy of the new President, liberals immediately began advocating for extreme measures to prevent him from naming Supreme Court justices.

In a widely disseminated article in American Prospect, Yale Law School professor Bruce Ackerman advocated that the Senate refuse to confirm any Supreme Court nominee that President Bush were to nominate:

In our democracy, there is one basic check on a runaway Court: presidential elections. And a majority of the justices have conspired to eliminate this check. The Supreme Court cannot be permitted to arrange for its own succession. To allow this president to serve as the Court's agent is a fundamental violation of the separation of powers. It is one thing for unelected judges to exercise the sovereign power of judicial review; it's quite another for them to insulate themselves yet further from popular control. When sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.

The Supreme Court has often functioned perfectly well without its full complement. During the 1990s, the justices have cut their workload dramatically and now deliver only 80 opinions of the Court each year. They can readily maintain this pace even if two or three vacancies open up. President Bush can fill these positions if he wins the 2004 election fair and square.

This rather unhinged belief in the illegitimacy of Bush’s presidency led other leading liberal academics to begin counseling Senate Democrats to oppose not only Supreme Court nominees, but any federal court nominee that President Bush would dare to name.

And nearly every single Senate Democrat listened during a weekend getaway in April, 2001. As The New York Times reported:

Forty-two of the Senate's 50 Democrats attended a private retreat this weekend in Farmington, Pa., where a principal topic was forging a unified party strategy to combat the White House on judicial nominees.

The senators listened to a panel composed of Prof. Laurence H. Tribe of Harvard Law School, Prof. Cass M. Sunstein of the University of Chicago Law School and Marcia R. Greenberger, the co-director of the National Women's Law Center, on the need to scrutinize judicial nominees more closely than ever. The panelists argued, said some people who were present, that the nation's courts were at a historic juncture because, they said, a band of conservative lawyers around Mr. Bush was planning to pack the courts with staunch conservatives.

''They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite,'' a person who attended said.

This was unprecedented. Democrats were conspiring to block federal judicial nominees based not on those nominees’ qualifications, but on nothing more than what they believed to be the philosophy of the man making the appointments.

Never before had a political party made judicial appointments so expressly political so early in a presidency, but Democrats very quickly put the plan they had hatched into action.

Just a few weeks later, on May 9th, President Bush announced his first eleven federal court appointments. Senate Democrats refused to schedule hearings for most of them.

In fact, many didn’t get a hearing until after the 2002 midterm election, when Republicans retook control of the Senate and with it the Judiciary Committee. Finally, President Bush’s nominees were granted hearings, but Democrats responded by taking the unprecedented step of filibustering their nominations.

Never before in American history had a federal judicial nomination been filibustered, but Senate Democrats filibustered ten of Bush’s nominees: Janice Rogers Brown, Miguel Estrada, Richard Allen Griffin, Carolyn Kuhl, David W. McKeague, William Gerry Myers III, Priscilla Owen, Charles W. Pickering, William H. Pryor, and Henry Saad.

When Estrada withdrew his nomination in early 2003, he became the first federal judge in American history to be successfully filibustered. But Democrats didn’t stop there, eventually forcing Kuhl and Saad to withdraw their nominations as well.

Moderates from both parties calling themselves the “Gang of 14” reached a deal to stop a number of the remaining filibusters, but not before Democrats claimed another scalp: Myers withdrew his nomination in 2007.

Democrats retook control of the Senate in the 2006 midterm and went right back to refusing to hold nomination hearings, and they effectively ran out the clock on Bush nominees Glen Conrad, Robert Conrad, Peter Keisler, and Steve A. Matthews, as President Bush’s term ended in 2009 without any of them ever being considered.

President Bush did name two Justices to the United States Supreme Court and, as expected, ran into opposition from Democrats. 22 Democrats voted against nominee John Roberts, while Samuel Alito faced a failed filibuster attempt by Senator John Kerry and won a 58-42 confirmation—the second-closest confirmation vote ever, behind only Justice Thomas’ 52-48 tally.

The year after Alito’s confirmation, Senator Chuck Schumer advocated a variation of the “Biden Rule” for future Bush Supreme Court appointments. Even though the 2008 presidential election was still 19 months away, he told liberal legal group the American Constitution Society:

The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito. We should reverse the presumption of confirmation. We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances. They must prove by actions, not words, that they are in the mainstream rather than we have to prove that they are not.

This, of course, flies in the face of two centuries of Senate tradition, but Schumer and the Democrats were adamant that no further Bush appointees would be approved.

No other Supreme Court vacancies opened up during Bush’s term, but after Barack Obama was inaugurated in 2009, there was no Republican obstruction whatsoever of his two nominees to the High Court.

There was opposition, sure, but the 2009 nomination of Sonia Sotomayor sailed through in a 68-31 vote, while Elena Kagan was confirmed 63-37 the following year.

The sudden death of Scalia in 2016—an election year—marked the first time that the “Biden Rule” would be implemented, and Republicans did; refusing to hold a Judiciary Committee hearing on Obama nominee Merrick Garland. Democrats, of course, wailed about this supposed affront to the Constitution and how the Republican Senate was unprecedented in its intransigence.

Unprecedented this was not, as Democrats must have forgotten about the smear campaigns they waged against Robert Bork, Douglas Ginsburg, and Clarence Thomas. They must have forgotten about late 1992, when they refused to hold hearings on a single George H.W. Bush nominee and Joe Biden told the world about the Senate’s precedent for election year Supreme vacancies. They must have forgotten about early 2001, when they refused to hold hearings on most of George W. Bush’s judicial nominees. They must have forgotten about 2003, when they for the first time in American history successfully filibustered a federal judicial nominee. And they must have forgotten about when they successfully filibustered three others just for good measure.

When Republicans dared to try the judicial filibuster themselves, Democrats responded by ending the practice that they themselves had started just a decade earlier. Even though Republicans allowed for confirmation votes on 19 of the district court nominees that they filibustered, in November, 2013, Democrats voted on the so-called “nuclear option”—a change in Senate rules that did away with the filibuster on executive cabinet and judicial nominations save for the Supreme Court.

In essence, Democrats nuked a tool of obstruction the second someone other than them tried to use it.

Now, however, they are back to their old bag of tricks, once again threatening to pull out a filibuster of President Trump’s Supreme Court nominee Neil Gorsuch based almost solely on the fact that he is President Trump’s Supreme Court nominee.

Now those same Democrats; namely, Senate Minority Leader Chuck Schumer, who a decade ago advocated for refusing to confirm a Bush nominee solely for being a Bush nominee, are trying to convince America that an expanded nuclear option—the same nuclear option that they invoked just three years ago—is somehow an unprecedented, dangerously unconstitutional move.

In truth, Democrats like Chuck Schumer are responsible for the vitriol that now surrounds Supreme Court appointments. They turned them into character assassinations (“high-tech lynchings,” as Justice Thomas called them). They refused to hold confirmation hearings in an election year. They refused to hold confirmation hearings during a new Republican president’s first year. They both introduced and eliminated the filibuster in judicial nominations.

Yet now they claim to be the ones who stand for civility and decency in the judicial nomination process.

It seems that they don’t know their own history.

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