Lately I’ve been arguing with lefty acquaintances of mine who say, “Isn’t it terrible for the Republicans to play tit-for-tat over Court nominations” that surely they don’t seriously expect Republicans never to reciprocate for the shameful treatment of Republican judicial nominees, starting with Bork. Over 50 Bush judicial nominees were never given a hearing, let alone a vote—and not just in the final year in office. Democrats blocked a hearing for Miguel Estrada for several years (because a conservative Hispanic terrified Democratic Party racial uniformity enforcers). And let’s not forget Obama’s willingness to filibuster each of George W. Bush’s two Supreme Court nominees. Obama has no standing to complain about the treatment of Judge Garland.
Moreover, if you consult the basic literature of game theory, you’ll see that “tit-for-tat” is exactly how you should respond to a second party who is trying to gain advantage over you: only through a taste of their own medicine will the first party moderate its behavior.
But let’s not forget the original sin of this problem: the Democrats’ shameful behavior in the Bork nomination in 1987. No, I’m not willing to let this go, because it represented a dramatic change in the rules of judicial politics. Pottery Barn rule time: Democrats broke it—they need to own it.
Forget Joe Biden and his “rule” from 1992. Here’s Sen. Joe Biden, chairman of the Senate Judiciary Committee, in 1987:
“Say the administration sends up Bork, and, after our investigation, he looks a lot like another Scalia. I’d have to vote for him, and if the groups tear me apart, that’s the medicine I’ll have to take. I’m not Ted Kennedy.”
It didn’t take long for “the groups” to get to Biden, however, so much so that the the Washington Post raised an editorial eyebrow at Biden’s extraordinary stance, noting that it would be hard for Bork to get a fair hearing when the Judiciary Committee chairman “has already cast himself in the role of a prosecutor instead of a juror.”
Let’s not forget that Bork had been approved unanimously by the Senate for the DC Circuit Court of Appeals. So much for that Garland talking point.
There is nothing in the Constitution that says the Supreme Court has to be nine members. (See: FDR, 1937. Heh.) If they want to, Republicans could insist on simply not filling vacancies and shrinking the Court through retirements or deaths. I suspect Democrats will come to this position next time a Republican president wants to replace a liberal justice with a conservative justice. Might as well just blow it up now.
While we’re at it, let’s also recall the sheer anti-intellectualism and evasions of Democrats in the Bork fight. As Suzanne Garment commented at the time in the Wall Street Journal:
The irony here is large. For a long time now liberals in America have denounced conservatives for anti-intellectualism and represented themselves and the institutions they control, like universities and the courts, as preservers and defenders of intellect. In the Bork campaign they acted with a contempt for intellect at least as bad in its way as anything that came out of the fundamentalist Right of the 20s.