Can Trump’s Supreme Court Pick Be ‘Borked’?
It’s challenging, to say the least, to think of Senate Minority Leader Chuck Schumer as a bulwark against Donald Trump’s plans to place a clone of the late Antonin Scalia on the Supreme Court to fill the panel’s vacant ninth seat. Yet that, in effect, is how Schumer described himself and his colleagues in an interview last week with Rachel Maddow on MSNBC.
“We are not going to settle on a Supreme Court nominee,” Schumer said, as the interview turned to the subject of the nation’s most powerful judicial body. “If they don’t appoint somebody good, we’re going to oppose them tooth and nail. … It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support.”
Indeed, it is hard to imagine anyone to the left of Steve Bannon accepting Trump’s probable Supreme Court pick—and bear in mind that given the ages of Justices Ruth Bader Ginsburg (83), Anthony Kennedy (80) and Stephen Breyer (78), he’ll likely get the chance to place more than one Scalia replica on the tribunal. Trump has promised to draw his nominees from two lists circulated before the election of 21 current federal and state court judges who are among the most regressive judicial officers in the country today.
Looking as if she couldn’t quite believe Schumer and needed reassurance, Maddow asked at the close of their wide-ranging chin-wag, “And so you will do your best to hold the seat open?”
Grim-faced and determined, Schumer answered, “Absolutely.”
Like Maddow, I’d like to believe Schumer. But I don’t.
I don’t trust Schumer to lead the fight against emerging fascism in America, even when it comes to the court. And with precious few exceptions, such as Bernie Sanders and Elizabeth Warren, I don’t trust other Senate Democrats to spearhead the charge, either. On the whole, the Democratic leadership is weak and feckless, steeped in neoliberalism, and at root, part and parcel of the oligarchy that has hijacked American democracy.
Instead of relying on Democrats, we’re going to have to push them and Schumer to take a stand. Fortunately, we have a template to use to galvanize our opposition in the massive popular outcry that derailed President Reagan’s nomination of Robert Bork to the Supreme Court in 1987.
Those who remember or have studied the Reagan years will recall the Senate Judiciary Committee’s 12 days of hearings on the Bork nomination. The proceedings were televised practically gavel to gavel, and the propriety of the nomination became the stuff of letter-writing and phone calls, petitions to the president and prominent senators, water-cooler chatter (yes, we still had them in workplaces back then), classroom debate, and, dare I say, yesteryear’s version of locker-room talk.
Even a Republican rock-star president couldn’t salvage the appointment. Only a year earlier, in 1986, the Senate had approved Reagan’s nomination of Scalia, Bork’s then-bench mate and fellow conservative on the District of Columbia Circuit Court of Appeals, by a vote of 98-0.
Unlike Scalia, who was still relatively unknown, Bork was a ready-made target, an anathema for liberals and progressives. He was the GOP loyalist who, in 1973, as Richard Nixon’s solicitor general, had fired Archibald Cox, the first Watergate special prosecutor, in the infamous “Saturday Night Massacre.”
By 1987, as a result of his published work as a Yale Law School professor and then as an appeals court judge, Bork was also broadly recognized as the preeminent proponent of the legal philosophy of “original intent”—the idea that judges should interpret the Constitution according to the original intent of the framers, rather than according to evolving standards of morality, fairness and due process. Under the guise of originalism, Bork had become the face of a judicial counterrevolution aimed at stemming the extension of civil rights and liberties engineered by the Supreme Court under the leadership of Chief Justice Earl Warren from the mid-1950s to the late ’60s. Scalia, nine years younger than Bork, did not yet have the enormous originalist track record he would go on to compile during his nearly 30 years on the Supreme Court.
From the outset, however, the key to defeating Bork’s nomination was organized opposition.
On July 1, 1987, the same day Reagan announced the nomination, Sen. Ted Kennedy took to the floor of the upper chamber to denounce what he called “Robert Bork’s America” as “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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
From there, the fight only intensified, both inside and, more important, outside the D.C. Beltway. By the time the Judiciary Committee hearings commenced in September, anti-Bork forces had raised a war chest of $12 million. In a manner similar to political campaigns, the money was spent on focus groups, opinion polls, media consultants and especially on advertising, in print and on radio and TV.
A newspaper ad taken out by the National Abortion Rights Action League asserted that a vote for Bork was the equivalent of voting for a politician who threatened to reverse “every advance women have made in the 20th century.” Similar ads were placed by the National Education Association and Planned Parenthood.
Most devastating of all was a 60-second television spot paid for by People for the American Way and narrated by the famed actor Gregory Peck. In his best Atticus Finch voice, Peck sounded the tocsin:
Robert Bork wants to be a Supreme Court justice, but the record shows he has a strange idea of what justice is. He defended poll taxes and literacy tests which kept many Americans from voting. He opposed a civil rights law that ended “whites only” signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks that freedom of speech does not apply to literature and art and music. Robert Bork could have the last word on your rights as citizens. But the Senate has the last word on him.
Peck urged viewers to get involved and to contact their senators to demand that they block Bork. Then he closed with a dire warning: “If Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”
Reagan went to great lengths to bolster the nomination, describing Bork’s appointment as his “top domestic priority.” But even the “Great Communicator” couldn’t get his message to resonate. Public opinion, which trended slightly in favor of Bork in early September 1987, turned decisively against him by the end of the month, after the nominee’s heated testimony before the Judiciary Committee. A Tribune Media poll released on Sept. 28 showed the public opposed the nomination by nearly a 2-to-1 margin.
Bork’s prospects officially came to an end on Oct. 23, 1987, on a Senate vote of 58-42. Six Republicans crossed party lines to cast ballots against him. His fall from grace was colossal. Ever since, judicial nominees have come to be wary of being “borked,” a term that has entered the lexicon as a synonym for rejection in the face of adverse publicity and harsh cross-examination.
Will the Democrats and an energized public rise to the occasion and “bork” Trump’s choices to reshape the Supreme Court? There is little question that the need to do so in 2017 will be the same, if not greater, than it was during the Reagan era.
Trump’s catalog of 21 possible high-court picks reads like a “who’s who” on the radical judicial right. Among those considered to be front-runners are Diane Sykes of the U.S. Court of Appeals Seventh Circuit and William Pryor of the 11th Circuit. As I have observed before in this column, both are strong supporters of voter ID suppression techniques, Hobby Lobby-style religious freedom and the concept of “corporate personhood.” They are also fervently anti-union, anti-abortion and opposed to gay marriage.
I profiled Sykes in a November 2013 column entitled “Meet the Worst Judge in America.” On balance, Pryor may be even more of a threat to constitutional norms. Nominated to the federal bench by President George W. Bush, he was confirmed by the Senate on a narrow 53-45 vote. In his former post as attorney general of Alabama, he described Roe v. Wade as “the worst abomination in the history of constitutional law,” and Miranda v. Arizona as one of the “worst examples” of judicial activism.”
I’m well aware that Senate Democrats have more on their hands than the Supreme Court. This week, the Senate will begin its confirmation hearings on Trump’s cabinet choices.
And yes, I know that Jefferson Beauregard Sessions III, Trump’s presumptive attorney general, has a history tinged by accusations of racism, and that once installed, he will become the nation’s chief law-enforcement officer and have at his disposal the awesome resources of the Department of Justice. I also know that Rex Tillerson, tabbed to become the next secretary of state, is a corporate kleptocrat, and that Betsy DeVos, Rick Perry and Scott Pruitt—slated, respectively, to lead the Departments of Education and Energy and the Environmental Protection Agency—are a trio of nitwits and/or climate deniers. And the list of unmentionables goes on, all the way to Ben Carson, who has been named to head the Department of Housing and Urban Development.
Still, as dangerous as they no doubt will be, Sessions and company will be but high-ranking soldiers within the executive branch of government, which Trump will command with them or without them. Trump’s picks for the Supreme Court, by contrast, will determine the balance of power at the uppermost echelon of the third, and supposedly independent, branch of government—the one Alexander Hamilton famously (and wrongly) touted in Federalist Paper No. 78 as the “least dangerous” sector of national power.
In resisting Trump’s efforts to remake the Supreme Court, Senate Democrats will be able to deploy the weapon of the filibuster—something they no longer can do with other presidential appointees as a result of a 2013 change in Senate rules, the so-called “nuclear option,” sponsored by former majority leader Harry Reid, D-Nev. Whether they muster the courage to do so remains to be seen.
A tepid filibuster against the 2006 nomination of Samuel Alito fizzled. Even more telling, Senate Democrats, although firmly in the majority, failed to find the courage to block the 1991 nomination of Clarence Thomas. The Judiciary Committee was chaired at the time by none other than our departing vice president, Joe Biden.
In the end, whether Schumer can be forced to make good on the pledge he gave to Maddow will depend on us and how loudly we make our voices of resistance heard.