The Bork Precedent
What the defeat of Robert Bork's nomination has taught the Bush White House.
by Fred Barnes
The Weekly Standard - 07/01/2005 3:00:00 PM
When Robert Bork was nominated to the Supreme Court in 1987, the Reagan White House was not prepared to fight effectively for his confirmation. Indeed, Bork was such a respected judge and admired legal scholar that President Reagan and his aides assumed Bork would have a relatively easy time winning Senate approval. He lost 58-42. In preparing now for a vacancy on the high court, the Bush White House has studied the Bork confirmation fight. And it has learned lessons it hopes will help when President Bush picks a nominee to replace Justice Sandra Day O'Connor, the first justice to step down during the Bush presidency.
The lessons focus on why Bork was defeated. They involve what is to be avoided in the 2005 fight to fill a Supreme Court vacancy. And the lessons also focus on what is different now from 1987 and what can be exploited to win confirmation this time.
The first lesson deals with personality and appearance. Bork was a great jurist with a dour personality and an untelegenic beard. His answers to tough legal questions tended to be precise and uncompromising. He didn't connect with millions of viewers who watched the confirmation hearings, which were nationally televised, and with many senators. Even Republican Senator John Warner of Virginia, a moderate conservative, voted against Bork.
So the lesson here for Bush and his advisers is to nominate someone with a reasonably likeable personality. This may sound like a trivial factor - mere cosmetics. But the Bush White House is correct in taking it seriously. Many of those suggested for the high court would qualify under this standard. Only a few wouldn't.
The second lesson is: don't be caught flatfooted. The corollary to this is to know your opposition. The Reagan White House and Senate Republican leaders drastically underestimated the strength of the opposition to Bork, which was strong and politically astute. And the conservative groups that fought for Bork's confirmation were overmatched by their left-wing opponents. Now, however, the Bush White House is fully aware that any Supreme Court nominee, even one as moderate as O'Connor, will be fiercely opposed. And both the White House and Senate Republican leaders have prepared for this.
In fact, the president and his aides don't believe the fight for confirmation would be significantly easier for an Hispanic or a woman. A possible choice is Attorney General Alberto Gonzales, a close friend of Bush. In his AG confirmation hearings, Democrats didn't give him a pass because he's Hispanic. They treated him roughly and would be expected - by the Bush White House anyway -- to do the same if he's picked for the Supreme Court. And no-holds-barred treatment would be expected as well if he chooses a woman, such as his White House legal counsel, Harriet Miers. Democrats battled aggressively against the nominations of Janice Rogers Brown and Priscilla Owen to the federal court of appeals.
The third lesson is to control the narrative about the nominee. The Reagan White House failed miserably on this. Instead, it was an unfair, over-the-top charge by Democratic Senator Edward Kennedy that became the operative description of Bork. The Reagan team sought to rebut it, but never managed to succeed fully. The Kennedy quote:
Robert Bork's America is a land in which women will 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 could 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.
No doubt any Bush appointee to the high court will be confronted with a brutally unfair characterization like Kennedy's. But now the Bush White House is ready to combat that with the help of conservative groups that didn't exist in 1987, including some with millions to spend on TV advertising. At the least, the president and his aides know they have to prevent their opponents from imposing an unfavorable narrative.
The fourth lesson is simply that the ideological and political landscape is better for a conservative nominee today than it was in 1987. This, in turn, gives Bush more latitude in considering candidates for the court. Conservative stands on issues like gun rights and abortion are no longer sufficient to disqualify a nominee. Nor has the filibuster turned out to be a popular tool for blocking judicial picks.
The Bush White House and congressional leaders fear a different tactic by Democrats, the Bolton ploy. Democrats have stalled John Bolton's nomination as ambassador to the United Nations by demanding more and more documents and information, some of which the White House has refused to turn over. So instead of filibustering Bush's choice for O'Connor's seat, they could demand emails, FBI files, and other documents that Bush would be reluctant to deliver. Insistence on disclosing an entire paper trail could drag out a nomination for months and even succeed in defeating the nominee -- that is, unless the White House and congressional leaders have learned a lesson and come up with a tactic to thwart the Bolton ploy.
Fred Barnes is executive editor of The Weekly Standard. |
