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Manuel Miranda: The Original Borking

Roundup: Media's Take




[Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues.]

For liberals and conservatives alike, the touchstone for beleaguered Supreme Court nominations is the rejection of Judge Robert Bork in 1987. Supreme Court nominees had been rejected before, 27 times, but never with so much orchestrated fury. Usually the nominees were lesser jurists, if not lesser intellects, if not lesser men, than was (or is) Judge Bork.

The Senate rejected George Washington's nominee for chief justice, John Rutledge, in 1795 because of his position on a treaty. Andrew Jackson's nomination of Roger Taney was blocked in 1835, though Jackson later nominated Taney successfully as chief justice. John Tyler, the first vice president to finish a deceased president's term, had four nominees rejected or blocked.

More recently, in 1968 Democratic and Republican senators alike signaled that they would reject Justice Abe Fortas's elevation to chief. This was partly for ethical reasons, but Southern Democrats also sought to punish Fortas for the overreaching of the Warren Court, and Republicans wanted to save the vacancy for Richard Nixon to fill. Lyndon Johnson withdrew the Fortas nomination, and Nixon got the payback. The Senate rejected his first two nominees to replace Fortas, Clement Haynsworth and G. Harrold Carswell, before approving Harry Blackmun.

Every rejected nominee since Fortas, and almost every controversial nominee, has been appointed by a Republican president at a time when the Democrats controlled the Senate. That includes Douglas Ginsburg (whose nomination Reagan withdrew over a marijuana controversy) and Clarence Thomas. By contrast, not since Fortas have Republicans attempted to block a Democratic high court nominee. Ruth Bader Ginsburg, a former general counsel to the American Civil Liberties Union, got only three "no" votes; Stephen Breyer, a former counsel to Ted Kennedy, only nine. The one time a Democratic minority waged a fight against a nominee--when Reagan elevated Justice William Rehnquist to chief in 1986--they mustered only 33 votes against.

Still the fight over Bork bears many lessons. One reason is that it centered on an indisputably well-qualified nominee's well-considered judicial philosophy, not on questions of competence or extrajudicial behavior. Another is that the careers of many liberal lobbyists were shaped by the Bork fight. They went on to turn "borking" into a lucrative cottage industry, funded mostly by Hollywood radicals, trial lawyers and the abortion-clinic lobby.
A look at the Bork fight puts the Roberts nomination into focus. Judge Roberts's defenders have studied it and have spent more than a decade preparing to avoid the mistakes of previous White House teams and their allies.

Liberals began preparing for the Bork fight even before Reagan announced Judge Bork's nomination. By late June 1987, Senate Democrats had told liberal leaders to form "a solid phalanx" of opposition to whomever Reagan nominated to replace Lewis Powell, who announced his retirement on June 27. Liberal lobbyists had informed the White House that a Bork nomination would bring on a fight.

Reagan announced Judge Bork's nomination on July 1. Forty-five minutes later, Sen. Kennedy took to the Senate floor to slander the nominee: "Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit in segregated lunch counters, rogue police could break down citizens' doors in midnight raids . . ." The next day 80 leaders of left-wing organizations gathered to form the Block Bork Coalition. They distributed a study of Judge Bork's record and discussed campaign themes. As with Judge Roberts, the first two goals of the Bork opposition were to delay and to ask senators not to commit too early to support the nominee.

On July 5, 1987, Sen. Bob Packwood of Oregon, a Republican, vowed to wage a filibuster if Judge Bork did not agree to accept Roe v. Wade as settled law. Major organizations like the NAACP began to pass formal resolutions of opposition to the Bork nomination. On July 13, liberal activists targeted states for mobilization. On July 15, Senate Minority Leader Bob Dole of Kansas estimated that Bork's chances were "50-50" and Sen. Alan Cranston of California, a liberal Democrat, warned that Judge Bork's future would hinge on 10 undecided senators.

This is all very different to the Roberts nomination so far. But then, as with Clarence Thomas, opposition to Bork got hottest as hearings approached. ...

John Roberts's nomination looked at first more like the Thomas fight than the Bork one, with liberal complaints of a limited paper trail, efforts to invade his family's privacy, and a dishonest attack by feminists. But 75,000 pages of documents later, liberals have as much to attack Judge Roberts on as they did Judge Bork. Targets of opportunity are more pithy and witty, but no less a treasure trove of issues. Documents recording Mr. Roberts's policy-shaping opinions over 12 years of executive branch service have revealed his views on as far-ranging a set of history-shaping interventions as the Senate has ever before scrutinized for any Supreme Court nominee.

It turns out that behind the mild-mannered judicial Clark Kent who appeared with President Bush last July is a conservative Superman....

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