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Bring Back Bork

Yesterday, Justice Ginsburg was kind enough to do a question and answer session at Columbia Law School, an experience far more enjoyable than I expected. A particularly funny speaker, I'm now a bit upset that I'm going to miss the two panels marking her tenth anniversary on the Supreme Court.

One of the more interesting questions put to her was what she thinks about the current situation with federal court nominations in the Senate. The best line in a response seeming quite disapproving was that eventually a whistle would be blown and things would be restored to sanity. Like most on her side of the aisle, she pointed to Clinton's consultation of Senator Hatch during her own nomination. I find this a bit unsatisfying, in that most of Clinton's 'consultations' were consultations with a majority party, not merely consulting a petulant opposition.

In any event, I was thinking of the strike and counterstrike that led to this particular impasse, cogitating on Justice Ginsburgs words and Professor Solum's analysis of events, and thinking of what that 'blowing of the whistle' that would lead the process back to sanity would be. Overturn Roe v. Wade but pass legislation making abortion legal, thus taking the most polarizing decision off the tables? Try to shame the most partisan of the senators into comity? Raise Pat Moynihan from the grave so he can rebuke his current New York successors for lacking in good grace? But all of these responses weren't 'first move' options that Bush could make without significant external help. (I'm pretty certain Bush doesn't have the right contacts in the witch doctoring world to do the latter anyway.)

Then it hit me. When the next Supreme Court nomination comes open, bring back Bork.

When you trace the spiraling descent of cross-party relations on judicial nominees, Bork is inevitably mentioned as the first shot invoked in the battle. From Bork to Thomas, Thomas to Clinton's appointees, from there to the present process... Bork is inevitably the cassus belli.

The idea's got a couple of attractions. First of all, it all rests in President Bush's hands: it's a unilateral act, and this is a president who's shown a liking for those. He can couch it to the Senate in terms of a grand deal: if the Democrats agree to revise their stance on Bork, the Republicans will agree to a truce on future nominees from a Democratic president. Things will have come full circle.

Sure, there's going to be initial resistance, but Bush would also have made it difficult for the Republicans in the Senate to chicken out on him. How many senators have raised Bork as their standard when fighting for Gonzales or Thomas? How much honor is there for them to lose? Whereas some of the Democrats, realising how far this situation has gone and how much there is to lose, would be likely to capitulate, even if Charles Schumer becomes the irredentist faction.

I don't think it's a sure shot. Certainly when it comes to matters requiring strategic competence, there's no such thing as a sure thing for any Republican organization. But even if Bork were to lose again, it's likely to bring an end to the Confirmation Wars, if only from sheer attrition. Imagine how spectacularly ugly Bork II might be, how much face could be lost on both sides! One way to end a war is simply to make it unprofitable to go on any further.

And in the best of all possible worlds, the Senate comes to its senses and confirms him like a Ginsburg or a Breyer. Just think how good it would be for 'to be Borked' to lose its perjorative sense.

That's it, Bush, blow that whistle of sanity. The whistle called Bork.


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Anthony, I think your facts are slightly off. When Ginsburg and Breyer were confirmed, the Democrats remained the majority party in the Senate. It was not until '94 that the Republicans swept into the majority in both houses. Moreover, nominating Bork would not end the confirmation wars but rather escalate them. Imagine if Clinton, rather than nominating relative centrists like Ginsburg and Breyer, had nominated someone like William Kunstler, or Catherine MacKinnon. That's why Bork failed, not because Democrats were feeling particularly nasty. The solution is to nominate someone that the other side at least respects, even if they don't agree on every issue.
Most of his consultations for the Supreme Court, in fact all of them, were put before a Democratic Senate. But (and I may be wrong here) he continued to 'consult' after the Republicans took Congress in 94--which would be the majority of his federal court nominations. Sorry if I was unclear there. I'm glad you refered to 'relative' centrists, since Ginsburg, however pleasant a lady she may be, isn't a centrist in any reasonable sense of the word. She certainly isn't any more of a centrist than Gonzales, and I wouldn't put her as much more 'centrist' than Bork. Anyway, I'll admit to being somewhat tongue in cheek. (I would have thought that references to 'raising the dead' and 'blowing a whistle named Bork' would differentiate this from my more serious suggestions.) But I'm not certain it's such a bad idea. I realize that at least the initial result would be to escalate the level of animosity. But it also brings a possibility of closure, which is what is missing here. At the moment, both sides are quite willing to wreak vengeance upon the other, both with some justification. Exhaustion and a nice symbolic act of closure might be appropriate to end things. Because as much as the Democrats would like to harp on Clinton appointees, the Republican senators have enough seniority to remember Bork, Thomas, and the games that were played when the Democrats held 40 years of dominion over all. As for your closing: 'even if they don't agree on every issue.' That's not the standard at the moment, even barely. The bare-naked fact is that the Democratic requirement is agreement on Roe. Bush could nominate St. Donkey the Democrat, who agrees with every platform of the Democratic Party save Roe, and it would not stop a filibuster.
Raise Pat Moynihan from the grave so he can rebuke his current New York successors for lacking in good grace? 'Several weeks later, as the Senate moved toward an October 23 floor vote in which Bork's nomination was rejected by a vote of 58 to 42, moderate New York Democratic Senator Daniel Patrick Moynihan explained his decision to vote against Bork by saying that "it is his restricted vision of privacy which troubles me most. I cannot vote for a jurist who simply cannot find in the Constitution a general right of privacy.... Its importance is such that I cannot support anyone for a Supreme Court appointment who would not recognize it" (Congressional Record, 1987:14011-12).' - Source

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