Skip to comments.Fred Barnes: The Bork Precedent (What the defeat of Bork's nomination taught the Bush White House)
Posted on 07/01/2005 7:17:33 PM PDT by RWR8189
When Robert Bork was nominated to the Supreme Court in 1987, the Reagan White House was not prepared to fight effectively for his confirmation. Indeed, Bork was such a respected judge and admired legal scholar that President Reagan and his aides assumed Bork would have a relatively easy time winning Senate approval. He lost 58-42. In preparing now for a vacancy on the high court, the Bush White House has studied the Bork confirmation fight. And it has learned lessons it hopes will help when President Bush picks a nominee to replace Justice Sandra Day O'Connor, the first justice to step down during the Bush presidency.
The lessons focus on why Bork was defeated. They involve what is to be avoided in the 2005 fight to fill a Supreme Court vacancy. And the lessons also focus on what is different now from 1987 and what can be exploited to win confirmation this time.
The first lesson deals with personality and appearance. Bork was a great jurist with a dour personality and an untelegenic beard. His answers to tough legal questions tended to be precise and uncompromising. He didn't connect with millions of viewers who watched the confirmation hearings, which were nationally televised, and with many senators. Even Republican Senator John Warner of Virginia, a moderate conservative, voted against Bork.
So the lesson here for Bush and his advisers is to nominate someone with a reasonably likeable personality. This may sound like a trivial factor - mere cosmetics. But the Bush White House is correct in taking it seriously. Many of those suggested for the high court would qualify under this standard. Only a few wouldn't.
The second lesson is: don't be caught flatfooted. The corollary to this is to know your opposition. The Reagan White House and Senate Republican leaders drastically underestimated the strength of the opposition to Bork, which was strong and politically astute. And the conservative groups that fought for Bork's confirmation were overmatched by their left-wing opponents. Now, however, the Bush White House is fully aware that any Supreme Court nominee, even one as moderate as O'Connor, will be fiercely opposed. And both the White House and Senate Republican leaders have prepared for this.
In fact, the president and his aides don't believe the fight for confirmation would be significantly easier for an Hispanic or a woman. A possible choice is Attorney General Alberto Gonzales, a close friend of Bush. In his AG confirmation hearings, Democrats didn't give him a pass because he's Hispanic. They treated him roughly and would be expected - by the Bush White House anyway -- to do the same if he's picked for the Supreme Court. And no-holds-barred treatment would be expected as well if he chooses a woman, such as his White House legal counsel, Harriet Miers. Democrats battled aggressively against the nominations of Janice Rogers Brown and Priscilla Owen to the federal court of appeals.
The third lesson is to control the narrative about the nominee. The Reagan White House failed miserably on this. Instead, it was an unfair, over-the-top charge by Democratic Senator Edward Kennedy that became the operative description of Bork. The Reagan team sought to rebut it, but never managed to succeed fully. The Kennedy quote:
Robert Bork's America is a land in which women will 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, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.
No doubt any Bush appointee to the high court will be confronted with a brutally unfair characterization like Kennedy's. But now the Bush White House is ready to combat that with the help of conservative groups that didn't exist in 1987, including some with millions to spend on TV advertising. At the least, the president and his aides know they have to prevent their opponents from imposing an unfavorable narrative.
The fourth lesson is simply that the ideological and political landscape is better for a conservative nominee today than it was in 1987. This, in turn, gives Bush more latitude in considering candidates for the court. Conservative stands on issues like gun rights and abortion are no longer sufficient to disqualify a nominee. Nor has the filibuster turned out to be a popular tool for blocking judicial picks.
The Bush White House and congressional leaders fear a different tactic by Democrats, the Bolton ploy. Democrats have stalled John Bolton's nomination as ambassador to the United Nations by demanding more and more documents and information, some of which the White House has refused to turn over. So instead of filibustering Bush's choice for O'Connor's seat, they could demand emails, FBI files, and other documents that Bush would be reluctant to deliver. Insistence on disclosing an entire paper trail could drag out a nomination for months and even succeed in defeating the nominee -- that is, unless the White House and congressional leaders have learned a lesson and come up with a tactic to thwart the Bolton ploy.
Fred Barnes is executive editor of The Weekly Standard.
Oppo research should be done on the groups and the tormentors who will raise the questions of the nominees. The sheer number of whiners on the left requires that many will have their own ethical problems. Perhaps large enough to taint their groups.
The White House would not have a "secret" alleged paper trail in hand to withhold. Barnes lost it on that point. The Bolton analogy is errant.
Bush may have learned the lessons of Bork, but don't count on the spineless RINOs having learned a thing. The Spectors, Grahams and Hagels will carry the Dems water and Bush will lose unless Frist can impose some discipline on that collection of egomaniacs.
One more thing to realize: Ted Kennedy is not the force to deal with that he was almost 20 years ago when Robert Bork was nominated. The guy's brain is so pickled from alcohol he can hardly make a complete sentence. He can't even pronouce "proliferation" and a score of other words.
The political climate and picture has changed in the past 20 years. No, the libs and the Dim-o-rats will never do again what they did to Bork.
Edward Kennedy tells lies like this at the drop of a hat, and his word betray his hatred for American values. He long ago divorced his wife.
The man should become a muslim.
BTW... I think George Herbert Walker Bush is in the bottom 25th percentile as president.
He was a disaster and the reason we ended up with a Clinton presidency.
Yeah I remember when Thomas was nominated there was an ad aired that went something like "Who will judge the judge?" or along those lines. It showed the photos of several democrat senators (even those not on the judiciary committee) whilst their ethical problems were stated (one of them was one of the Keating Five).
Okay, have him shave the beard and nominate the worthy Judge Bork.
Did I miss something? Did Barnes mention that the Democrats controlled the Senate at the time 54 to 46. We did learn a lesson, now we are in the majority.
Muslims don't drink. Teddy will NEVER be a muslim.
Oh, I never said there wouldn't be a fight. It just won't be the blood bath is was with Bork. We're more prepared this time and the Dim-o-rats are less prepared IMHO.
I think he ought to recess appoint Bork until the Senate confirms his nominee. Then he will get his way right quick.
Amen, brother Duck. The lesson is that the GOP needs to control the Senate, and that anyone who wants to call themselves Republican had damn well better vote for the nominee. If the Dims filibuster, they damn well better vote for the "constitutional option". End of story. Second one will go much smoother that way, and the little Dem temper tantrum as the control of the nation's politics transitions will be over, and they will learn to be a good minority.
What disputed first election? There was never a doubt that Bush was fairly elected. It's only dims who disputed it, and they had now legal justification to do so without the clowns on the Florida supreme court. Don't carry the libs water.
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