The Democrats launched the judicial confirmation wars and fired the first nuclear device in 1987, changing judicial nominations forever by attacking and rejecting President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court.  A brilliant man, Bork is still widely regarded as one of the brightest and most able scholars in the field of antitrust law and had a strong record on the bench.  But Senator Ted Kennedy responded immediately to his nomination by saying that “Robert Bork’s America is a land in which women would 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…” and so on.  It would be difficult to find a more intemperate senatorial response to a sitting judge over his constitutional views.  But the Democrats’ anti-Bork campaign worked, and Judge Bork was rejected by the Senate.

The fallout from this nuclear explosion has continue to choke the nomination process ever since.  In order to avoid being “Borked,” US Supreme Court nominees now perform a dance of the veils, hiding any views on the major issues of the day.  Even though courts now make many of the most important public policy decisions of our time, the nomination process perpetuates a myth that judges are entirely objective and functionary.  John Roberts, in his hearings, emphasized that he would be an umpire calling balls and strikes, not making the rules.  Contrast that with his later rewriting of the Affordable Care Act, changing it from a penalty that was unconstitutional under the commerce clause to a tax that was permissible.  Presidents play to this myth by nominating younger candidates who, unlike Robert Bork, have very little record to attack.

Republicans dropped another nuclear device only last year when they refused to even hold hearings for President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court.  Essentially what Republicans were saying is that we are closing up shop on a president’s Supreme Court nominations for the last year he is in office.  Very thin arguments were constructed to make it look more routine and less nuclear, saying the Constitution doesn’t really mandate hearings and this has been done before.  But refusing to consider a president’s nominee for 11 months for political reasons was unprecedented and, in its own way, nuclear.

By now, the nuclear has become routine, especially in judicial nominations.  If the point is to win—and clearly it is—then drop the bombs.  If you have enough votes to change the rules, then do.  What is lost, of course, is any notion of the US Senate as a deliberative body because there is no longer any deliberation.  It is simply a matter of lining up the votes to win where you can, and refusing to vote when you cannot.   Sadly, policy in Washington, even in the supposedly more deliberative Senate, has become war, not deliberation.

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