I experienced a nostalgia rush while surfing the 'net, ostensibly to fact check some of the crazy-seeming things said during Ketanji Brown Jackson's confirmation hearing. Even Republicans whose brand is "civil" and "sensible" seem to me suspect. Here is Sen. Ben Sasse, R-Nebraska, announcing his opposition:
Judge Jackson is an extraordinary person with an extraordinary American story. We both love this country, but we disagree on judicial philosophy and I am sadly unable to vote for this confirmation.
In the rest of the statement, he praises her "impeccable credentials" and "deep knowledge of the law," but faults her for a failure "to claim originalism as her judicial philosophy." By this standard, it would be impossible for a Democratic president to fill a vacancy on the Supreme Court if there were more Republicans than Democrats in the Senate—unless, I suppose, the president were to nominate someone with whom he disagreed, so that the Republican senators would vote to confirm, thereby reversing the constitutional directive about who appoints and who advises and consents. An extraordinary person with impeccable credentials isn't enough. You must agree with Sen. Sasse about "judicial philosophy."
The recent history of Supreme Court nominations indicates it really is the Republican view that no Democratic president is permitted to appoint a justice so long as Republicans have a Senate majority. That is why, for example, Neil Gorsuch and Amy Coney Barrett are on the Supreme Court, and Merrick Garland, whom President Obama nominated, isn't. When this complaint is lodged, the dodge often involves a what-aboutism dating to the hearing, in 1987, for Robert Bork, who was nominated by President Reagan upon the retirement of Justice Lewis Powell. This is said to be the Ur-event for the confirmation wars, the Democrats' treatment of the nominee having been so egregious as to require the invention of a new verb, "to Bork," a synonym for smearing. "You started it!" cry the Republicans. But that's not how I remember it, and it was while trying to verify my memory that I got nostalgic for the late '80s.
Before his nomination to the Supreme Court, I knew of Bork only for his part in the Saturday Night Massacre: when President Nixon, up to his 5 o'clock shadow in Watergate trouble, ordered the firing of special prosecutor Archibald Cox, both the attorney general (Elliot Richardson) and his chief deputy (William Ruckelshaus) resigned rather than carry out the order. Bork was third in command at the Justice Department, and he fired Cox. Having in this way covered himself with glory, Bork was nominated to the Supreme Court fourteen years later. I distinctly remember reading the "Note and Comment," at the front of The New Yorker, criticizing his nomination: I was at the Cafe di Napoli in downtown Minneapolis, 9th Street and Hennepin Avenue, after work. I went there often as the portions were generous and they had wine and beer. The menu was large but it was all just pasta with red sauce, not very expensive. The restaurant is long gone. I'd order Neapolitan ice cream for dessert and read while the waitress kept filling my coffee cup. In chasing down the editorial now, I see it was in the issue of August 3, 1987, which by chance was my 29th birthday. Those were the days! The same issue had a short story by Richard Ford that I probably read that night, too. Back then, the magazine's political comments were unsigned, I suppose on the theory that they then acquired an "institutional voice," though the practice ran the risk of making the essay sound as if it might have been edited by someone who did not entirely agree with the author. This, however, was not a problem with the piece on Bork's nomination, and the work of googling it has revealed to me for the first time that the author is known to have been Renata Adler, who, along with Pauline Kael, reviewed movies for the magazine. When Kael published a collection of her criticism as a book—well, I'll let Wikipedia tell the story:
In 1980, upon the publication of her New Yorker colleague Pauline Kael's collection When the Lights Go Down, she [Adler] published an 8000-word review in The New York Review of Books that dismissed the book as "jarringly, piece by piece, line by line, and without interruption, worthless" . . . . The piece, which stunned Kael and quickly became infamous in literary circles, was described by Time magazine as "the New York literary mafia['s] bloodiest case of assault and battery in years."
Adler, in her assessment of Bork's fitness for the Supreme Court, was not constrained by considerations of collegiality.
But you know what? Bork got a hearing before the Judiciary Committee and a vote of the full Senate, which went against him, 42-58, with six Republicans joining 52 Democrats in opposition. (Two Democrats voted in favor of his confirmation.) It's sort of fun to read down the list of the hundred senators and how they voted. It reminded me of some real characters, like Alan Simpson of Wyoming, and also how things have changed. Bork did not get a single vote out of Florida, North Dakota, West Virgina, Ohio, Tennessee, Louisiana, or Alabama, all of which had two Democratic senators in 1987. He did get a vote out of New York (from Republican Al D'Amato) and one out of California (from Republican Pete Wilson). Minnesota's two Republican senators, Rudy Boschwitz and Dave Durenberger, voted for him, too. You can watch online long excerpts from the hearings and the debate in the Senate—more than three hours from C-SPAN here, a half hour of PBS coverage anchored by a young and very telegenic Judy Woodruff here. She's still at it, as are Patrick Leahy, Mitch McConnell, Chuck Grassley, Richard Shelby (though now as a Republican), and, in a new office, the energetic chairman of the Judiciary Committee, Joseph R Biden of Delaware. They asked Bork questions, he answered them, sometimes with permission granted at more length than the rules allowed, and then they voted. The idea that the process was unusual, some kind of a watershed, is fiction. It's the nominee who was unusual. After Bork was voted down, Reagan nominated Douglas Ginsburg, who withdrew when it came out that he had enjoyed smoking pot with law students. I'd forgotten that little detour! Next up was Anthony Kennedy, who was confirmed by a vote of 97 to 0. Those surly, obstructionist Democrats!
I would argue, though, that Bork, at least among Republicans, in the fullness of time prevailed. For some reason, he seems to have harbored a particular hatred of the Supreme Court's decision in Griswold v Connecticut, the 1965 case overturning a state law that banned the use of contraceptive devices, including by married partners. In 1987, this might have been a bridge too far for six Republican senators, but in 2022, during the hearings for Ketanji Brown Jackson, the first Black woman to be nominated to the court, a Republican senator declared in an interview that he thought the Supreme Court had erred in 1967 by striking down a Virginia law banning interracial marriages. The interview hardly merited a mention in the news, perhaps because there's a war going on in Ukraine, but also I think because it's just widely accepted now that the Republican party is off the rails and 'round the bend, so one more absurd exhibition of this fact is about as startling as the sunrise. A couple months ago, Justice Thomas was the lone dissent when the court ruled that the Trump administration had to turn over documents to the January 6 Committee. Now it comes out that in the weeks after the election Thomas's wife had been texting regularly with Mark Meadows, the White House Chief of Staff, endorsing the most batshit crazy conspiracy theories and urging him to do whatever was necessary to keep Trump in office. Ho-hum.