It’s been a little over a month since Judge Brett Kavanaugh was nominated to succeed Justice Anthony Kennedy on the Supreme Court, but somehow it seems longer.
This might be caused by the tendency of summertime to pass more slowly in the mind than other seasons, or it may be due to the peculiar political genius of the man who nominated him. For while Kavanaugh’s selection was greeted with the standard pronouncements we associate with Republican judicial appointments—“In selecting … Kavanaugh [Donald] Trump has put reproductive rights and freedoms and health care protections for millions of Americans on the judicial chopping block” (Sen. Charles Schumer, D-N.Y.)—the now-familiar series of daily crises and media breakdowns we associate with the Trump presidency have shoved Kavanaugh onto the sidelines. For the moment, at any rate.
Opposition to Kavanaugh is ubiquitous on the left as well as vociferous, and the stakes are indisputably high: Republicans enjoy a razor-thin majority in the Senate, which might well disappear in a few months’ time; Democrats suspect that Kavanaugh is unlikely to supply the swing vote Kennedy occasionally furnished on a divided court. And yet, while the Democratic leadership in the Senate is unanimously opposed to Kavanaugh and will deploy all the tricks of the trade to slow his ascent, the Republican leader—Mitch McConnell of Kentucky—is not one to be outmaneuvered in such circumstances, as we learned two years ago.
Still, the important fact to remember is that McConnell was a member of the Senate 31 years ago when Judge Robert Bork found himself in Kavanaugh’s place, and while the political landscape is significantly altered since 1987, McConnell has not forgotten the painful lessons of the Bork nomination.
McConnell begins, of course, with the same tactical advantage enjoyed by Democrats for much of the past century: command of the process. For the key to undermining Bork was not principle, or impassioned argument, but delay. As is well remembered, especially by Republicans, Bork was subject to an extraordinary—and extraordinarily successful—campaign of professional criticism and personal abuse. The chairman of the Judiciary Committee, Sen. Joseph Biden (D-Del.), was pleased to delay public hearings for three arduous months. By the time Bork appeared before Biden’s panel, his cause was already lost.
At the time, opposition to Bork, especially in its more scurrilous manifestations, was regarded as a startling breach of political protocol—leading, among other things, to the telling neologism of “borking” nominees. And in a sense, this was true. For decades the Senate had tended to defer to presidents on judicial nominations on the grounds that elections have consequences and that the Senate’s primary interest should be the lawyerly qualifications, not the legal opinions, of individual nominees.
Just a year before Bork’s candidacy, for example, the decidedly conservative Judge Antonin Scalia had sailed through the Senate on a unanimous vote, and as late as 1993, Judge Ruth Bader Ginsburg benefited from the genteel tradition of declining to answer how she might vote on hypothetical cases.
In truth, however, senatorial courtesy was a modern exception, not the historic rule. Most failed nominees to the Supreme Court date from the 19th century, and in very nearly every instance, partisan politics was the dominant, often exclusive, factor. Even in the modern age, nominees of undoubted distinction sometimes found themselves in partisan cross hairs.
Charles Evans Hughes (1862-1948)—in my view, our most notable specimen of statesman-jurist—is a case in point. A successful attorney and professor of law, reform governor of New York, the 1916 Republican presidential nominee, secretary of state, and a judge on the Permanent Court of International Justice (World Court) in The Hague, Hughes had even served for six years as associate justice of the Supreme Court before running for president. But when Herbert Hoover appointed him to succeed William Howard Taft as chief justice (1930), Hughes bore the full brunt of progressive distaste for his brand of liberal Republicanism—and not least, the need for a scapegoat three months after the Great Crash.
In those days, Supreme Court nominees did not customarily testify before the Judiciary Committee, and so Hughes was obliged to maintain a dignified silence while the opposition raged and stormed on the Senate floor. Indeed, so mortified was he by the phenomenon that he asked the president to withdraw his name to preserve his stature, but Hoover declined—and Hughes was confirmed (52-26). Not so lucky, however, was Hoover’s next Supreme Court nominee, a distinguished North Carolina jurist on the federal bench, John J. Parker, who was rejected by a single vote.
In both instances, the quality of Parker and Hughes as potential justices was not in dispute; the issue was politics. Hughes personified the East Coast/Wall Street establishment that particularly agitated Western progressives of both parties, and Democrats were confident that Congress would soon flip in the deepening Depression.
These same ingredients recurred a generation later—not when Ronald Reagan named Judge Bork, but when Richard Nixon nominated Judge Clement Haynsworth to the Supreme Court in 1969. By then, Democrats had controlled the presidency and Congress very nearly without interruption since 1930, and the election of Nixon—who had been vice president in the only GOP administration in nearly four decades—was seen as a particular affront. Moreover, in the fractious 1960s, Nixon gained votes from the old Roosevelt coalition by appealing to the cultural conservatism of the (traditionally Democratic) South—the Southern Strategy, so-called.
Haynsworth, chief judge of the Fourth Circuit of the U.S. Court of Appeals and a genteel South Carolinian, had roughly the same effect on the mood of 1969 Senate Democrats as Charles Evans Hughes had on their 1930 forebears. There was no question about Haynsworth’s distinction and merit—a Harvard Law graduate, appointee of Dwight D. Eisenhower, desegregating Southern jurist, and “one of the truly great federal judges” in the recollection of Justice Lewis F. Powell—it was Haynsworth’s misfortune to personify the threat Nixon’s triumph posed to Democratic preeminence. Worse still, his appointment had been made possible by the resignation of Justice Abe Fortas, Lyndon Johnson’s longtime comrade-in-arms and liberal favorite, in an ethics scandal.
In short, Democrats were furious and, in naval parlance, determined to fire a warning shot across Nixon’s bow. At that time and in that place, they had the power to do so: In a process now sadly familiar, the unfailingly courteous and well-tempered Haynsworth—whose courtly demeanor was rendered more poignant by a mild stutter—was caught in a crossfire he neither expected nor deserved, and the Senate’s adverse judgment was close (55-45) but absolute.
To be sure, the gothic quality of Robert Bork’s subsequent ordeal—Chairman Biden’s constitutional incoherence, Sen. Edward Kennedy’s rancid oratory, Sen. Howell Heflin’s question about why Bork sported a beard—is firmly lodged in conservative memory and recalled as the ghastly dividing line it seemed at the time. But the Clement Haynsworth precedent is equally instructive. Will it be overturned?
