More than two hundred years after the Supreme Court was conceived by Congress as an apolitical branch of government, expected to adjudicate presidential and legislative actions that defied constitutional precedent, it's common knowledge that this Supreme Court is stacked with conservative justices who are happy to legislate from the bench in service of a much broader Republican agenda.
Nowhere is this agenda more evident than in the court's nomination process, which has in recent decades devolved into an open mic for GOP theatricality. Long gone are the days of (relatively) good-faith hearings in which Republicans actually probed the latest nominee's jurisprudence. Republicans now insist that each nomination starts where the last left off, unloading partisan baggage that overshadows any attempt at substantive questioning.
Last month, when President Biden nominated Ketanji Brown Jackson to replace the outgoing Supreme Court Justice Stephen Breyer, Republicans vowed to conduct an uncharacteristically "respectful hearing," claiming that they'd resist the urge to dredge up past grievances. But with Jackson's confirmation hearings officially over, it's obvious that the GOP completely reneged on that pledge, in part by incessantly complaining about how Democrats handled the hearings of conservative Justices Amy Coney Barrett and Brett Kavanaugh. Most shocking among their refrains, however, was the lamentation of conservative Supreme Court nominee Robert Bork, whose nomination was famously nixed back in 1987, nearly four decades ago.
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"Apparently in the White House, they were suddenly embarrassed by the constitutional positions that Bork was taking."
On Monday, Sen. Ted Cruz, R-Tex., spitefully recalled Bork's case as evidence that the Democrats have always approached Supreme Court nominations with a partisan agenda.
"It is only one side of the aisle, the Democratic aisle, that went so into the gutter with Judge Robert Bork that they invented a new verb, 'to Bork' someone," Cruz told Jackson.
Sen. Ben Sasse, R-Neb., grandstanded along similar lines, saying, "We started down this road of character assassination in the 1980s with Judge Bork's hearings and senators have been engaged in disgusting theatrics ever since."
It's no secret that Bork was one of the court's most controversial nominees. After all, his confirmation hearings were one of the first to be televised in U.S. history. But for the most part, Republicans this week completely retconned the circumstances behind his failure to be confirmed, erroneously claiming he was with victim of a smear campaign, even though his political leanings were ill-suited for the court's milieu at the time.
Lucas A. Powe Jr., a professor for the School of Law in the University of Texas at Austin, told Salon that Bork's nomination sank because his hardline brand of originalism was "out of the judicial mainstream."
"President Reagan said a day or so after he nominated Bork, 'If you liked Justice [Lewis] Powell, you'll like Justice Bork,'" Powe explained, noting that Americans had thought of Powell, who Bork was set to replace, as a relatively centrist justice. "But everyone knew that was patently untrue. Apparently in the White House, they were suddenly embarrassed by the constitutional positions that Bork was taking."
Powe, a leading Supreme Court historian, specifically mentioned Bork's positions on reproductive health, free speech, and minority rights. For instance, on abortion, which had been federally legalized a decade and a half earlier, Bork believed that the practice was an issue for the states to settle, a line of reasoning that's historically been employed to punt civil rights issues. Bork was also on record for arguing that there should be no mandate on businesses to serve minorities, calling such a law "a principle of unsurpassed ugliness."
Meanwhile, when it comes to the First Amendment, Bork felt that free speech protections only applied to political speech, suggesting that the government had the right to censor "any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic." Bork was also adamantly opposed to extending the equal protection clause to women.
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In one particularly egregious case he presided over as a D.C. appellate court judge, Bork allowed a chemical company in 1984 to force its female employees to undergo sterilization or be fired after the staff complained that the company's lead-filled workplace might affect their fertility. Unsurprisingly, that decision became a major sticking point during Bork's confirmation hearings, as The Los Angeles Times reported.
Throughout his hearings, Bork repeatedly claimed that his rulings were being mischaracterized by Democrats, leading Republicans to believe that the former nominee had been personally maligned. But Adam Winkler, a professor at the UCLA School of Law" firmly disputed that narrative in an interview with Salon, arguing that that Bork was "not the subject of personal character assassination."
"Robert Bork was the subject of significant disagreement with his philosophy … how he thought about particular areas of the law, especially privacy, women's rights, and civil rights," Winkler explained.
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Compared to Bork, Winkler added, Jackson's judicial philosophy is well within the mainstream – but that hasn't stopped Republicans from attempting to put her record in the worst light possible.
"Basically, [the Republicans] need a Democrat to peel off. And I just don't think that they're working the right levers to try and do that."
During her confirmation hearings this week, Jackson was barraged by accusations of being "weak on crime," particularly when it comes to child pornography. On Tuesday, for example, Sens. Cruz, Josh Hawley, R-Mo., and Lindsey Graham, R-S.C., castigated the nominee for delivering lower sentences to child porn offenders than the Federal Sentencing Guidelines suggest. But according to Vox, The Washington Post, MSNBC, and smattering of other outlets, those guidelines are widely thought among the federal judges to be outmoded and draconian, particularly when it comes to offenders who did not produce child porn.
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As a 2021 report by the US Sentencing Commission states, from the 2005 to 2019, "the majority (59.0%) of nonproduction child pornography offenders received a variance below the guideline range," suggesting that Jackson's rulings were not abnormal.
On a number of occasions, Cruz also attempted to bait Jackson, a Black woman and former public defender, into aligning herself with "critical race theory" and anti-racism. On Tuesday, for instance, the Texas senator asked Jackson if she "agreed" with author Ibram X. Kendi, who wrote the bestselling "Antiracist Baby," asking her whether "babies are racist."
"I've never studied critical race theory, and I've never used it. It doesn't come up in the work that I do as a judge," Jackson responded.
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In another inane line of questioning, Sen. Marsha Blackburn, R-Tenn., this week asked Jackson to define the word "woman," alluding to the national debate around transgender identity, which has in recent years become politically supercharged by the Republican-led "parents' rights" movement.
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Jackson responded that she cannot define the word, since she is "not a biologist" – an apt response, as Salon's Amanda Marcotte noted this week, because society's general conceit of "women" actually includes a variety of biological makeups. For instance, while people with two X chromosomes are genetically female, some people who Blackburn would likely be inclined to call "female" are actually genetically male, with one X chromosome and one Y chromosome.
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In any case, all of these attacks fly in the face of what is actually broad Republican support behind Jackson's nomination, according to the Committee on the Judiciary. In a recent press release, the panel called Jackson a "proven consensus builder" who boasts imprimaturs from the 35 prominent crime victims, survivors, and advocates; 86 bipartisan former state attorneys general; and even the Fraternal Order of Police.
Benjamin Barton, a professor at the University of Tennessee College of Law, told Salon that congressional Republicans are merely "playing to their base" in Jackson's confirmation hearings – and that's a poor strategy, he noted, when they might only need one Democratic abstention to sink her nomination.
"Basically, [the Republicans] need a Democrat to peel off. And I just don't think that they're working the right levers to try and do that," Barton said in an interview. "Maybe they're taking a throw against the wall and seeing what sticks. But all of the high salience stuff, all of the clips that can be played on the news, or the hot button social issues are not, in my opinion, likely to change the mind of [Sens. Kristen Sinema, D-Ariz., or Joe Manchin, D-W.Va.]."
"Robert Bork was rejected. But the politics of grievance underestimate how successful 'Bork-ism' has really been."
Thus far, no Democrats have signaled any desire to oppose Jackson. But some Republicans, namely Sen. Lisa Murkowski of Alaska and Susan Collins of Maine, have indicated that they might break ranks. And according to Politico, the list might be even bigger.
Sen. Mitt Romney, R-Utah, a frequent detractor of his own party, said this week that his "heart would like to be able to vote for [Jackson's] confirmation," dismissing Hawley's claims that Jackson was "soft on crime." Sen. Roy Blunt, R-Mo., also disputed the GOP's "soft on crime" narrative, saying that his "early inclination was: I'd really like to vote for the first Black woman to go on the court."
Other potential wild cards include Sens. Richard Burr, R-N.C., who voted to convict Donald Trump in his 2021 impeachment trial, and Rob Portman, R-Ohio, who will not be seeking re-election in 2022.
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All of this is to say that where Jackson has support across the aisle, Bork had bipartisan resistance. In the end, his nomination was overwhelmingly rejected by the Senate, with "no" votes from all fifty Democrats and six Republicans. But while Bork was never appointed to the Supreme Court, that doesn't mean Republicans haven't worked tooth and nail to carry on his legacy.
"Originalism is the dominant theory of constitutional interpretation today," Winkler said. "Bork's conservatism with regards to race and civil rights is about to be implemented by the Supreme Court next year when they take the Harvard affirmative action case. Bork's view that Roe v. Wade was hard to justify because privacy rights were not mentioned in the Constitution – well, that's become a mainstream idea, and the Supreme Court seems likely to overturn Roe v. Wade this year. Robert Bork was rejected," he added. "But the politics of grievance underestimate how successful 'Bork-ism' has really been."
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