Judiciary

Dems can’t ‘Bork’ Kavanaugh, and have only themselves to blame

Senate hearings on Judge Brett Kavanaugh's nomination to the Supreme Court begin today. Despite Kavanaugh's potential to replace the court's ideological center, Justice Anthony Kennedy, Senate Democrats are not going to "Bork" Kavanaugh. For this, we can thank the decision by former Democratic Senate Majority Leader Harry Reid (D-Nev.) to invoke the "nuclear option" back in 2013.

In 1987, Democrats' opposition to President Reagan's Supreme Court nominee, Judge Robert Bork, was so intense that it became a verb. Merriam-Webster's dictionary defines "Bork" as "to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification."

Since then, Democrats have unsuccessfully attempted to Bork two additional Republican Supreme Court nominees, Clarence Thomas and Samuel Alito. The assault on Thomas was particularly vigorous because Democrats held the majority in the Senate. But Thomas's status, as an African-American replacement for the venerable Justice Thurgood Marshall, made enough Democrats queasy that no filibuster occurred and Thomas squeaked through on a 52-48 vote. Alito's nomination likewise met broad Democratic opposition. Prominent Democrats such as then-Sens. Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.) filibustered his nomination, but the Senate was controlled by Republicans and, consequently, there were 60 votes for ending the filibuster. Alito was subsequently confirmed, 58-42.

Today, Democrats' relatively restrained opposition to Judge Kavanaugh does not reflect their conclusion that Borking is inappropriate behavior. Instead, it likely reflects a mathematical calculation that Borking Kavanaugh would be fruitless. After all, if you're going to storm the castle, you need sufficient manpower to at least give you a fighting chance to win.

Borking's reduced appeal is traceable to the Democratic Senate's 2013 decision to invoke the "nuclear option," which eliminated the filibuster for any presidential nomination except the Supreme Court. The net effect was that nominees need only a simple majority of the Senate to be confirmed rather than 60 votes. Then-President Obama praised the move because it facilitated confirmation of controversial executive branch and judicial nominees, including several judges for the powerful D.C. Circuit.

When Senate Democrats decided in 2017 to filibuster Neil Gorsuch's nomination to the Supreme Court, Republican Senate Majority Leader Mitch McConnell (R-Ky.) took Sen. Reid's nuclear tactic one step further, jettisoning the filibuster for Supreme Court nominees. Consequently, Justice Gorsuch's nomination went relatively smoothly and he was approved by a simple majority, 54-45.

Judge Kavanaugh's fate will be similar to Gorsuch's. Now that the filibuster is gone for Supreme Court nominees, presidents will be emboldened to nominate individuals with strong, clearly defined judicial philosophies. They no longer need to search high and low for that rare lawyer who has risen to the top of his profession while meticulously avoiding taking positions on controversial constitutional issues. And opposition to future Supreme Court nominees will be less vitriolic unless there is sufficient defection within the majority party to risk reaching the majority threshold. Getting to 51, in other words, is substantially easier than getting to 60. Consequently, there will be fewer instances in which Borking will be worth the money and effort.

Another potential benefit of dispensing with Supreme Court filibusters is increased candor.

Under Rule 2.10 of the Model Code of Judicial Conduct, judges should not make any public statement that "might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court." Similarly, Canon 5A(3)(d) of the Model Code states that judges and judicial candidates should not "make pledges, promises or commitments that are inconsistent with the impartial performance" of the office. But these rules do not mean that nominees should evade questions about their general judicial philosophy or approach to constitutional interpretation.

Nominees should not frustrate the Senate's obligation to provide advice and consent by invoking the "Ginsburg Rule," named for Justice Ruth Bader Ginsburg, who blithely told the Senate during her confirmation hearing that she would provide "no hints, no forecasts, no previews" on any issues that might come before the court. Under the Ginsburg Rule, therefore, discussion about the Constitution is off the table. Unfortunately, such broad-brush evasion has become commonplace.

Now that only 51 votes are needed for confirmation, however, Supreme Court nominees should feel more freedom to share their views, and Senate Judiciary hearings consequently may become more substantive and enlightening. This is as it should be. Federal judges are appointed for life and removable only by impeachment. Senate confirmation is the only moment when We the People, through our elected representatives, have an opportunity to illuminate nominees' positions on issues affecting our daily lives and the trajectory of our country.

Dispensing with the filibuster for Supreme Court nominees is, therefore, arguably the best thing that Harry Reid and the Senate Democrats ever did. Democratic Minority Leader Chuck Schumer presently laments the filibuster change because it reduces his ability to thwart President Trump's nominees. But Sen. Schumer (D-N.Y.) undoubtedly understands that, eventually, his party will benefit from this change. All presidents - of whatever political party - now have a robust power to place justices on the court with well-developed judicial philosophies, rather than settling for stealth candidates who, to borrow Forrest Gump's words, are "like a box of chocolates - you never know what you're gonna get."

Thanks, Harry.

Elizabeth Price Foley practices constitutional law in Washington and is a constitutional law professor at Florida International University College of Law in Miami.

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