President Ronald Reagan had just nominated Judge Robert Bork to the Supreme Court when Sen. Ted Kennedy uttered the words in 1987 that hurdled Senate Democrats down the first of six steps leading to today’s recurring confirmation hearing debacles.
1.) Borking Republican nominees. The New York Times’ James “Scotty” Reston — then the dean of old-school liberal journalists — warned Democrats to think twice, saying, “If they’re wise, they won’t follow him down this stormy path.”
But 52 of the 54 Democrats (joined by six liberal Republicans) who then controlled the Senate ignored Reston and exchanged a tradition of careful assessment of judiciary temperament for the extreme partisanship exemplified by the Massachusetts senator’s fact-free assassination of Bork’s character and judicial record:
”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.”
2.) ‘High-tech lynching.’ That a bitter new die was cast in 1987 was sadly confirmed four years later when then-Senate Judiciary Committee Chairman Joe Biden (D-Del.) presided over an even more corrosive scene, one that President George H.W. Bush’s nominee to replace Justice Thurgood Marshall, Clarence Thomas, called “a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching …”
Fortunately, President Bill Clinton’s tenure in the Oval Office provided something of a respite from the rancor and degradation of the Bork and Thomas confirmations, with Justice Ruth Bader Ginsburg being confirmed on a 96-3 vote in 1993 and Justice Stephen Breyer confirmed on an 87-9 vote in 1994.
3.) ‘Not going to roll over.’ But then came President George W. Bush’s eight years, which were marked by a constant war by Democrats against his nominees at every level of the federal judiciary, not just those for the high court.
They launched their war at a 2001 Pennsylvania retreat in which they were advised, according to The New York Times, that “‘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.”
The first attending Democrat quoted by The Times was Sen. Chuck Schumer, then New York’s senior senator, who candidly admitted, “What we’re trying to do is set the stage and make sure that both the White House and the Senate Republicans know … We’re simply not going to roll over.”
4.) Weaponizing the filibuster. It was Schumer two years later who, The Times reported, urged Senate Democrats “to use a tactic that some were initially reluctant to pursue, and that has since roiled the Senate: a filibuster on the floor of the chamber to block votes on nominees he and other Democrats had decided to oppose.”
The Times added that “the resulting standoff has Democrats and Republicans on the committee so tense that some joke that they need to come to work with bodyguards.”
Democrats enthusiastically adopted Schumer’s filibuster strategy, launching 21 separate filibusters against 10 of Bush’s nominees to district and appeals court positions.
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Bush’s 2005 nomination of Judge John Roberts as chief justice was confirmed on a 78-22 vote, with 22 Democrats in opposition despite the nominee’s extraordinary demonstration, during his confirmation hearing, of an encyclopedic knowledge of precedent, unaided by notes, on every major issue of the day.
When Bush nominated Judge Samuel Alito to the high court in 2006, Schumer and 24 of his Democratic colleagues — including Sen. Barack Obama of Illinois — tried to launch a filibuster but failed on a 72-25 vote to end debate. Alito was confirmed on a 58-42 vote.
Obama enjoyed a Clinton-like run of successful Supreme Court nominations, with Justice Sonia Sotomayor’s 2009 confirmation sparking unsuccessful attempts by conservative advocacy groups to rally opposition. The high court’s first justice of Hispanic descent was confirmed on a 68-31 vote by a Democrat-dominated Senate.
Similarly, former Solicitor General Elena Kagan was confirmed in 2010 on a 63-37 count. Conservative groups again tried but failed to generate an opposition campaign even remotely as effectively as Democratic allies among liberal advocacy had been mounting for decades.
5.) Democrats drop the nuke. But the Obama years also saw Republicans’ adopting Democratic filibustering tactics in opposing lower court nominees. In response, Senate Majority Leader Harry Reid and his fellow Democrats exercised the “nuclear option” in 2013, abolishing the 60-vote requirement to end a filibuster for such nominations but keeping it in place for the high court.
When President Donald Trump took office Jan. 20, 2017, the Supreme Court was evenly split, 4-4, between conservatives and liberals, following the 2016 death of Justice Antonin Scalia. When Trump nominated Judge Neil Gorsuch, Democrats mounted a filibuster.
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Obama had tried to fill Scalia’s place on the court, nominating Judge Merrick Garland, but Senate Majority Leader Mitch McConnell refused to allow a confirmation hearing, arguing that the appointment should be made by whichever candidate won the presidency in November 2016.
After Democrats launched their anti-Gorsuch effort, McConnell and his Republican colleagues abolished the filibuster on Supreme Court nominations, with Gorsuch then being confirmed on a 54-45 vote. Only three Democrats voted to confirm.
6.) Creating confirmation chaos. When Justice Anthony Kennedy announced his impending retirement, Trump nominated Judge Brett Kavanaugh, a conservative, former Harvard Law School professor and widely respected jurist.
If confirmed, Kavanaugh would give the nation’s highest tribunal a conservative majority for the first time in several generations, a fact that caused panic among Democrats who feared they would no longer be able to use federal courts to impose policies most voters oppose.
With little hope of smearing Kavanaugh with scandal or charges of extremism, Democrats opted during a Labor Day weekend conference call to plan their hearing strategy to disrupt the proceedings at every turn.
Judiciary Chairman Charles Grassley (R-Iowa) was five seconds into his welcome when the least senior Democrat on the committee, Sen. Kamala Harris (D-Calif.) interrupted and demanded the hearing be delayed or adjourned because members needed more time and documents to review Kavanaugh properly.
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Harris’ rudeness was quickly followed by dozens of similar interruptions by other Democrats on the committee, most notably including Sens. Dick Durbin of Illinois, Richard Blumenthal of Connecticut, Cory Booker of New Jersey, Mazie Hirono of Hawaii, Sheldon Whitehouse of Rhode Island, and Chris Coons of Delaware.
But there were also dozens of protesters planted in the audience, who repeatedly screamed anti-Kavanaugh and anti-Trump epithets and slogans before being dragged out of the hearing room by U.S. Capitol Police. As a result, the three-day hearing was among the most raucous and tense ever in the modern Senate.
The protesters disrupted all three days of the hearings, and the Democrats’ delaying tactics reached their most ridiculous at the third day’s opening with a carefully staged Booker drama.
The New Jersey Democrat vowed to risk being kicked out of the Senate for breaking the panel’s “committee confidentiality” rule and heroically making public Kavanaugh documents he claimed Republicans were hiding from the public.
In fact, as Booker knew, the documents had been cleared for release hours before, thus exposing his grandstanding as a hollow gesture likely aimed at cultivating support among the far-Left fringe of the Democratic party in anticipation of the 2020 presidential primaries.
Thus, Booker’s “Spartacus moment” —a highly charged partisan fantasy designed to disrupt and derail — perfectly symbolized just how far down Democrats have dragged the Senate’s confirmation process since the day Kennedy created the Borking of Supreme Court nominees.