The Wound at the Heart of the Supreme Court Confirmation Process

· Political

It hasn’t always been this way.  There is only one way to fix it.  And it ain’t pretty.

The newest Supreme Court nominee, Ketanji Brown Jackson – a former clerk of the Justice she has been chosen to replace, a federal practitioner of criminal defense, former member of the United States Sentencing Commission, and near-decade long judge on the D.C. federal bench – is, at least based on resume alone, qualified.  Whatever misgivings you might have about her political leanings or judicial philosophy (or stated lack thereof), or the fact that the President (unwisely) explicitly limited his options exclusively to black women for the Breyer seat, she is qualified.  There are valid reasons aplenty to reject her anyway, and had I a vote in the Senate I certainly would.  But anyone expressing certainty as to how she is going to vote on the cases, controversies, petitions, and appeals she will hear as a member of the Supreme Court does not warrant being taken seriously.

Republicans in today’s era are by far the most familiar with the sting of perceived betrayal by the justices they elevate to the Supreme Court.  You can tell by the way they scrutinize their own nominees almost as vigorously as they do nominees from Democrats.  Harriet Miers – President Bush’s initial choice to succeed the retiring Sandra Day O’Connor – so consistently embarrassed herself in her meetings with committee members, that she was resoundingly rejected before any hearings began.

But something has changed in recent years.  Nominees are increasingly asked questions that are irrelevant to their positions as candidates for the Court and future members thereof.  Neil Gorsuch was asked whether it was appropriate for his predecessor nominee Merrick Garland to be denied a hearing.  Before the now-infamous allegations arose to nearly derail his confirmation, Brett Kavanaugh was asked to opine about the Charlottesville riots in 2017.  After the principal allegation arose, he was asked a myriad of intensely personal questions that were not only irrelevant to the seat he would occupy as a Justice, but also irrelevant to whether he was culpable for what had been alleged.  Amy Coney Barrett was asked if it was appropriate for her to be nominated and heard so close to the 2020 election.  And recently, Judge Brown Jackson was asked to, among other things, define a woman.  She was also asked to give her opinion on court packing and cameras being installed in the courtroom.  The fact that some of her answers were unwisely submitted does not take away from the fact that much of the hearing simply did not have anything to do with her, even as she sat at the center.

To my recollection, the only nominee who has ever, while still a nominee, directly commented on the morality and appropriateness of the opposition party’s rhetoric and behavior in committee hearings, was Kavanaugh.  During his opening answer to the Judiciary Committee on September 27, 2018 after the testimony of Christine Blasey Ford, Kavanaugh publicly criticized the rhetoric of the Democrats regarding him and his nomination, and said: “the behavior of several of the Democratic members of this Committee at my hearing a few weeks ago was an embarrassment, but at least it was just a good ol’ fashioned attempt at borking.”

Kavanaugh got one part of that wrong.  “Borking,” as it is called, is neither old nor old fashioned.  It is, however, one of the most important and historically disgraceful moments in our country’s history.

On July 1, 1987, President Reagan nominated D.C. Circuit Judge Robert Bork to the Supreme Court to succeed retiring Justice Lewis F. Powell.  Less than 45 minutes later on the same day, Ted Kennedy went to the Senate floor and said the following:

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, and schoolchildren could not be taught about evolution, writers and artists would 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.

Since the point is often cited today, it is worth noting that in 1982 when Reagan had nominated Bork to sit on the D.C. Circuit Court of Appeals, Bork, who had never before been a judge, was confirmed by a unanimous voice vote.  By July, 1987, he had been on the bench for more than five years.  When Senator Alan Simpson asked Kennedy later that day why he made those remarks, Kennedy replied that Bork simply “ha[d] to be destroyed.”

The above quote by Kennedy was not a legal critique.  It was not a statement of mere civil disagreement with a nominee.  Nor was it an expression of concern over Bork’s temperament or qualifications.  It was a character assassination.  Without a modicum of factual basis, Kennedy in these comments likened Bork to Bull Connor, George Wallace, and William Jennings Bryan, and also to an ironfisted medieval emperor.  Bork did not help himself in the hearings, but the campaign that mounted against him on the back of those comments was so overwhelming, that his confirmation was predictably defeated.

A great national wound was created at this moment, and it has lingered and deepened since for over 35 years.  The problem was not that Bork was not confirmed.  Plenty of nominees have been rejected in the past.  The problem was also not that there were people who strongly opposed him.  Thurgood Marshall was strenuously opposed by a small group of Dixiecrats who hilariously failed to derail his confirmation.  But there had never been a meaningful national smear campaign against a judicial nominee spurred by such sensationalism in our country’s history.  Bork was personally and absolutely unfairly charged with being a harbinger of death, separation, tyranny, and evil.  When it became understood that such a tactic was going to work, it became inevitable that it would be used again.

It was, and now we have the word that Kavanaugh employed: borking – the act of smearing, character assassinating, and fearmongering over the nomination of a judge without factual basis or credible evidence.

The tactic was employed once again when Clarence Thomas was nominated, but with an artful refinement.  Professor Anita Hill had privately complained of Thomas’s sexual harassment of her to staffers in the Judiciary Committee, and was promised to be kept anonymous.  The media frenzy that launched from the leak made the one about Bork just four years earlier look like training camp.

However unpleasant it is for conservatives to do so, it is important to recognize that the borking against Clarence Thomas did not come from Anita Hill herself.  Despite Arlen Specter’s insinuations in 1991 that her testimony amounted to perjury, it has never been proven that Hill lied.  Since lying requires that the accuser knows the statement is false, there are infinite ways in which a person can be wrong without being a liar.  A person can also be unable to prove an accusation against a person and still not be a liar.  Even a person who knows that she will not be able to prove her accusation against another is not automatically a liar for having leveled it.  And since Hill did not wish to level a public accusation against Thomas, it is wrong to burden her with the indignity of being unable to meet a burden of proof she did not volunteer to bear.

In a deeply sadistic and unfortunate way, what made the testimony of, and battery of questioning against, Anita Hill on October 11, 1991 such captivating political theater was the fact that the idea of there even being a burden of proof effectively ceased to exist.  On television, Hill looked good; good enough to allay any potential concern about the issues with her testimony, and also good enough to derail Thomas’s confirmation.  Even “better,” so to speak, much of the nation was, and remains, utterly shocked at the cruelty with which she was interrogated by the panel of white conservative (not exclusively Republican) men.  Perhaps the “best” part for the Democrats against Thomas was that despite both parties having their respective witnesses (though only Thomas’s actually testified), the spectacle was so grand in her favor at the outset that it quashed any notion that parts of her story may be in direct contravention to statements she had made to the FBI.  To this day, Hill remains unable to square her testimony with what she and others told the FBI regarding the state of her career at the time, the reasons behind her departure from the Department of Education, and her ongoing relationship with Thomas.

But perhaps the most important detail that was lost in all this is the fact that the only reason this was before a committee in the first place is because the very real and methodical investigations by the FBI into the allegations had not recommended any finding of validity to Hill’s allegations.  When an allegation or concern of such is raised, especially when criminal in nature, the FBI, not the committee itself via a public hearing, does the investigating.  Everyone understands that that makes sense.  But when Nina Totenberg leaked the story, she did so having received the FBI report and Hill’s affidavit from the Committee, and thus reported on the bombshell nature of the allegations themselves.  What transpired in the Committee from there was entirely over the fact that allegations had been aired publicly and could be milked for further public interest.

In other words, the borking of Thomas was based upon the thrilling fact that there were allegations in the first place – detailed enough to destroy and derail him.

The only advantage Thomas had in his favor by this point was the likelihood of the last word.  He used it well.

“This is a circus.  It’s a national disgrace.  And from my standpoint, as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way dain 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.”

At the center of the controversy in 1991 was Joe Biden, and it cannot be understated how the errors in judgment he committed there foreshadow what would happen in his future vice presidency and then future presidency.  As Chairman of the Judiciary Committee, after his request for an FBI investigation led to the inconclusive findings, Biden first aroused media suspicion by openly commenting on the fact that no suggestion of Thomas’s character being in disrepute had been raised, and that it would be improper to do so.  It didn’t take long for the leaks to emerge.  Then he caved to intra-party pressure to reopen the hearings following the frenzy.  Sensing that he had just set an utterly abysmal precedent for the country (using a public, media-sensational committee hearing to subject a nominee to a torrent of potential smearing under the pretenses of giving advice and consent), Biden quietly compromised to close the hearings without further incident.  It was too late.  The damage was done, and Biden’s efforts to thread the needle alienated liberals in the short term and conservatives in the long term as they grew increasingly suspicious with time that he was behind the leaks in the first place.

I have given this section length and detail because of the grave importance of the point.  The Clarence Thomas confirmation hearings transformed the entire Senate Judiciary Committee into a lawless arena for accusation, rumor, hearsay, disgusting rhetoric, degrading inquiry, and personal embarrassment.  It was not a trial, but an invitation for the country to act like a jury.  It was not an investigation, but a show of intimidation and humiliation.  No party bore a burden of proof.  Very little evidence was scrutinized before being admitted.  The privacy of a discreet woman was violated for political gain, and she was forced against her wishes to suddenly become the poster, and carry the banner, for aggrieved and non-believed women in all of America.  And the dignity of a man whose life before had known hardships far beyond the comprehension of any of us today, was denied and desecrated before he was allowed to utter a word in answer.

However imperfect Republicans have acted in response, these unprecedented, disgraceful departures from decorum are exclusively the doing of the Democrats.  No Republican has ever declared war or mounted such an aggressively personal and character-smearing campaign against a judge nominated by a Democrat to a level anywhere near what was done to Bork and Thomas.  Republicans are certainly guilty of light Borking, but it is one party, and only one party, that has so fundamentally changed the process of appointing a person to serve on the federal bench.  And during the “detente” period from 1993-2016, Democrats continued to Bork Republican minority nominees by using the filibuster – first successfully against Miguel Estrada, and then unsuccessfully against Janice Rogers Brown.  And then, of course, there’s the treatment of Brett Kavanaugh.  So don’t tell me this was just about a couple of Supreme Court seats 30+ years ago.  This is a grave national wound.  It is a rupture of our political fabric, an incursion into our culture, and it grows as it festers.  We have not healed.

I did not write this simply to air a long-held grievance.  There must be a solution and there must be a reckoning.  It is not enough to simply play nice from here on out and hope that such tactics will not be used again.  They will be.  As long as the American Left views the Supreme Court not as an Article III body for the resolution of cases and controversies, the interpretation of law, and protection of the Separation of Powers, but as instead an extra-legislative oligarchy for the exercise of raw judicial power, the use of the borking tactic is inevitable.

When open war is upon you, you win not by ensuring that your opponent’s loss is symmetrical, but by ensuring that it is asymmetrical.  You must destroy your opponent’s ability to make war, to wage it on its favored terms, and to send a strong, humbling message that the costs of that war will far outweigh any benefit.  It is not enough to sit content with five or six originalist justices on the Supreme Court.  To the extent possible, it must be unanimously occupied with originalists, textualists, and conservative legal jurists not for merely one or two generations, but in constant perpetuity. It will not be possible to block every non-originalist or Democratic nominee to the bench.  But it is absolutely incumbent upon conservatives to do so cleanly and methodically whenever they can.  What Mitch McConnell did in 2016, blocking consideration of any nominee by the outgoing Democratic President for the Supreme Court may not have had direct precedent.  But what the Democrats did to Bork made it precedent.  It was not personal to Merrick Garland, and at no point was Garland’s character ever meaningfully attacked or smeared.  It was the right thing to do, and it was only the beginning. And until the conduct of the Democrats during the confirmation hearings of Bork, Thomas, and Kavanaugh is looked upon with shame, regret, and historic disgrace, it will be the imperative of Republicans to keep doing it.

Despite the unfair questioning and baseless suggestions of lawless leniency for child pornography offenses by Ketanji Brown Jackson, Republicans have not stooped to anywhere near the levels of sleaze and evil that Democrats did against Bork, Thomas, Estrada, Brown, and Kavanugh.  Nor should they.  Democrats paid a steep legislative price for their most recent treatment of Kavanaugh, and it is important to understand why.  The only reason Kavanaugh made it to the Supreme Court is because he had the audacity to angrily vocalize his severe displeasure and pain that came from that repeat of history.  If he had not done that, had he come off as meek, inoffensive, and unbothered by the flagrant abuses of process done to him, he would never have been confirmed, his career would be over, and his name would be forever linked to the allegations that were never credibly substantiated.  That fiery moment on September 27, 2018 swung the momentum of the confirmation back into his favor, galvanized the Republican Party, and effected so powerful an impression upon the public that the Republicans added seats to their existing Senate majority enough so that they could confirm the next justice in the month before the next election.  It was a fight.  He fought, and he won.  So did Clarence Thomas.  So did Mitch McConnell.

The wound at the heart of the SCOTUS confirmation process will not heal until conservatives learn how to fight like they did.

– Vivek

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