In case you aren’t familiar with the history of Supreme Court nominations, the threat refers to President Reagan’s nomination of Robert Bork, which was blocked by a Democratic-controlled Senate. But though you may think that turnabout is fair play, the Senate’s refusal to confirm the nominee involved a much different set of circumstances than what we are seeing today.
First, unlike the current Senate’s blanket threat to filibuster any Obama nominee, Democrats warned Reagan that Bork could not be confirmed if he was nominated. They hoped he would nominate someone less controversial. The reason was Bork’s firing of Archibald Cox, the first Watergate Special Prosecutor, as part of the Nixon cover-up of Watergate. Though Bork later claimed that, as the newly-appointed Attorney General, he was acting under orders of President Nixon, it was believed that he understood the implications of the firing and was trying to prevent the impeachment of Nixon. Bork was also considered an ideologue and a divisive figure in the mold of the late Antonin Scalia. Even the ACLU opposed his nomination.
So it was clear that the Senate was not blocking any Reagan nomination to the Court. They were singularly focused on blocking the nomination of a candidate they vehemently opposed.
Nevertheless, Republicans were furious, and they vowed to repay Democrats by blocking nominations of Democratic presidents. Of course, they forget that, before Bork, they successfully filibustered Lyndon Johnson’s nomination of Associate Justice Abe Fortas to Chief Justice of the Supreme Court. And later, they forced Fortas to resign from the Court over the fact that he had accepted a lifelong annual retainer for agreeing to provide legal advice to a friend and former client for a family foundation. Yet Fortas’ actions would seem to pale in comparison to those of current Justice Clarence Thomas. Not only has Thomas long been dogged by claims of sexual harassment of Anita Hill. Thomas failed to make legally-required financial disclosures for 13 years. He also refused to recuse himself from cases in which there were obvious conflicts of interest.
If the Republican-led Senate follows through with its threats to filibuster any Obama nominee, what will happen when the tables are turned? Will we see another tit for tat? Will Democrats seek payback? For more than 7 years, Republicans have blocked President Obama’s nominees. In fact, in 2010, they blocked a whopping 97 presidential appointments in a single day! Even today, there are 81 vacancies on federal courts with 39 judges waiting confirmation.
If Republicans continue on this path, Democrats will be faced with the choice of allowing the Republican dirty tricks to succeed. Or returning the favor.
Neither option benefits our nation.