Opposing Sotomayor: The Revenge Of Bork?
Conservatives trace court confirmation battles back to Robert Bork in 1987. But there was also the Fortas filibuster in '68. hide caption
A very good piece in Friday's New York Times by Neil Lewis about the opposition to Supreme Court nominee Sonia Sotomayor by conservatives. Putting aside for a moment the arguments to her being confirmed, Lewis writes that "the fervor with which some of those criticisms have been hurled may not be just about Judge Sotomayor":
Those emotions, say people who have followed the confirmation wars, are often fueled by the sense of grievance among conservatives and Republicans who say their judicial nominees have been treated unfairly and, sometimes, disrespectfully.
Lewis quotes conservative scholar Richard Epstein at the University of Chicago who says "he had concluded that the case against Judge Sotomayor was thin but that it was energized by the anger over the treatment of past conservative nominees like Robert H. Bork, who lost his confirmation battle in 1987, and Clarence Thomas, who was narrowly confirmed four years later.
"There's no question that those hurts remain powerful today," Professor Epstein said in an interview. "And there's no question that Breyer and Ginsburg were never subjected to anything remotely like that," a reference to Justices Stephen G. Breyer and Ruth Bader Ginsburg, the last two Democratic nominees, both of whom faced relatively easy confirmation proceedings. ...
In interviews of people outside the Senate involved in the opposition to Judge Sotomayor, there is a common catechism of complaint that usually begins with the 1987 fight over the Bork nomination and the turbulent fight involving sexual harassment accusations against Justice Thomas in 1991.
Conservatives also regularly note that in 2003 Senate Democrats resorted to the unusual tactic of using a filibuster against several Republican appeals court nominees. One whose nomination was blocked was Miguel Estrada, a Washington lawyer. Mr. Estrada had been nominated by President George W. Bush to a seat on the appeals court based in Washington, which would have put him in position to become the first Hispanic justice on the Supreme Court..
Of course, adds Lewis, Democrats "have their own grievances," notably the failure of Senate Republicans to consider several Clinton nominees for the appeals court. Plus, as Sen. Charles Schumer (D-NY) argues, "Republican presidents have tried to choose ideological nominees to move the courts rightward, while Democrats have been less concerned with their nominees' judicial philosophy."
Plus -- and not mentioned in Lewis' article -- when you think of Supreme Court confirmation battles, one of the biggest of all time was the one Republicans and Southern Democrats waged against Abe Fortas in 1968. Chief Justice Earl Warren had announced his retirement and President Lyndon Johnson, already a lame duck, attempted to elevate Justice Fortas to chief justice. The opposition to Fortas was intense, forcing LBJ to withdraw the nomination.
Back to Lewis' article, he closes with the conventional wisdom that the modern confirmation process "guarantees that every nomination is a potential battle":
By contrast, William O. Douglas, nominated to the court in 1939, became impatient while waiting outside the closed door of the Senate Judiciary Committee room and sent in a message asking if the panel had any questions for him. There were none, and he was swiftly confirmed.