Judge-ment Day

The verb “bork” is one of the more tendentious entries in Webster's New Millennium Dictionary. Webster's records “bork” as meaning “to seek to obstruct a political appointment or selection; also, to attack a political opponent viciously.” While the ﬁrst half of the deﬁnition is accurate, the second element is but one version of recent history, the conservative one. Through this lens, Bork suffered “naked character assassination,” as Andrew McCarthy recently wrote for the National Review Online.

For liberals, on the other hand, “borking” means something quite different. “Robert Bork defeated Robert Bork,” argues People for the American Way President Ralph Neas, who chaired the Block Bork coalition. “Borking,” by his lights, is the process of giving the public “an opportunity to understand, to know what the judicial philosophy is of this individual who will be conﬁrmed for life.”

To Neas, the strategy in 2005 is much as it was in 1987, if President Bush nominates an ideologically extreme candidate to the open seat left by Sandra Day O'Connor (and possibly the one left by Chief Justice William Rehnquist, whose retirement was widely expected at press time). Democrats have a chance to defeat a radical nominee only if they are able to educate the public and convey the inevitable effects on people's lives of the ascendance of a hard-right judicial philosophy.

But much has changed in the 18 years since Bork's rejection. Liberal groups seeking to prevent the emergence of a radically conservative Supreme Court face a much more daunting challenge than they did with Bork.

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The most obvious difference between the two battles, of course, is the mirror-image makeup of the Senate. Whereas the Bork-era Democrats held a 55-seat majority led by Majority Leader Robert Byrd, today Byrd and his party are looking up at 55 Republicans led by Bill Frist, whose presidential aspirations depend on the conﬁrmation of justices approved by the religious right.

This in itself seems like a near-fatal strike against Democratic hopes to block a nominee: While rejections of Supreme Court nominations are by no means historical rarities -- more than 20 percent of Supreme Court nominees never made it to the bench, and six of the last 20 nominations have failed -- it is quite uncommon for a nominee to be defeated when one party controls both the White House and the Senate. Only once in the past 75 years has a president seen a Senate run by his ostensible allies stonewall his choices, and the circumstances of that defeat were anomalous, to say the least. Lyndon Johnson's elevation of Associate Justice Abe Fortas to the seat of the departing chief justice, Earl Warren, and the accompanying nomination of Homer Thornberry as associate justice were derailed by a ﬁlibuster just one month before the 1968 election; Johnson had been a self-proclaimed lame duck for months.

Senate Democrats may not have recourse to a Fortas-style ﬁlibuster, however. In the May compromise deal allowing the conﬁrmation of three of Bush's most radical nominees, seven Republican senators forswore the “nuclear option” that would have eliminated judicial ﬁlibusters -- with the caveat that, as South Carolina Republican Lindsey Graham explained hours after signing the deal, “if there's a ﬁlibuster in the future, Lindsey Graham has the right to change the rules.” Graham and gop colleague Mike DeWine, as well as Democratic signatory Ben Nelson of Nebraska (up for re-election next year), have repeatedly portrayed the deal as a signiﬁcant constraint on Democratic ﬁlibustering.

Even caucus unity could be a problem for the Democrats, although observers believe that moderate Democrats will largely defer to the leadership's determination on whether a nominee merits blocking. “Generally, the broader caucus looks to the work done by members on the [Senate Judiciary] Committee,” notes Melody Barnes, Ted Kennedy's chief counsel on the committee from 1995 to 2003. “It would almost be like sending the miner's canary down and then ignoring the canary when it came back up” for individual senators to ignore the ﬁndings of the committee staff.

But the roll-call votes for the three most controversial judges ushered in by the compromise are ominous reminders that the Democratic caucus may not stand so united. The deal guaranteed only cloture votes (votes to end debate and hold a binding conﬁrmation vote) from its signatories, not ﬁnal approval of the nomination. Yet each of the three received at least one Democratic vote for conﬁrmation.

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In the face of these hefty speed bumps, liberals have one strategy: education.

“These rare moments offer unprecedented opportunities for the public to reﬂect and discuss and engage in this issue,” says Nan Aron, president of the liberal advocacy group Alliance for Justice. Only by “show[ing] the American people not only how right-wing the nominee might be but how it affects their daily lives, how it will affect their children and their grandchildren,” Neas says, can liberals hope to stop a nominee's conﬁrmation.

But even here the difference between 1987 and 2005 is troublesome. In 1987, Orrin Hatch, then the Republican ranking member on the Judiciary Committee, lamented the reduction of the hearings to “30-second bites”; today, participants will be lucky to get 10 seconds' airtime without interruption.

The brief format ﬁts liberals poorly and conservatives well. The argument for strict construction is difﬁcult to sustain at length, but its 10-second rationale -- that “judges should interpret the law, not make the law” -- is both familiar and inarguable. Liberals will be hard-pressed to extrapolate convincingly from a latter-day Bork's beliefs to the American life that would follow.

Just getting the message out will be a challenge greater than any faced by the Bork-era liberals, let alone preventing the president from appointing and conﬁrming radically conservative justices if he so chooses. It is not, all told, a promising scenario -- but it is the scenario that exists.

Jeffrey Dubner is the Prospect's associate online editor.