David Pisarra calls it “partisan pandering” when the Republican Senate refuses to consider President Obama’s Supreme Court nominee. Yet it was Democrats who injected partisan pandering into modern Supreme Court nominations.
In 1987 President Reagan nominated Robert Bork to the Supreme Court. Feminists, the ACLU, and Norman Lear’s People for the American Way were among the liberal activists who pressured Senate Democrats into rejecting Bork (who was easily as qualified as Obama’s current pick, Merrick Garland). Liberals were so proud to have tanked Bork, they coined a new phrase – “to bork” – which Wordnik.com defines as, “to defeat a judicial nomination through a concerted attack on the nominee’s character, background and philosophy.”
When in 1991 President Bush nominated Clarence Thomas to the Supreme Court, feminist Florynce Kennedy, addressing a NOW conference in NYC, said of Thomas, “We’re going to bork him. We’re going to kill him politically.” There followed their “I believe Anita” campaign. In picking that slogan, feminists essentially admitted there was no evidence to support Anita Hill’s claims of sexual harassment by Thomas. One had to believe Anita on her word.
Feminists vowed “to bork” any nominee who might create an anti-Roe majority, even if it meant the court seat would remain empty. Alas for liberals, Thomas prevailed. But the concept stuck. Google and you’ll find headlines such as “Republicans vow to bork Obama’s nominee.” So yes, Republicans play by dirty rules, but those rules were written by Democrats. Call it karma.
Finally, there is, arguably, no open seat on the court, and so no need to nominate or confirm anyone. The Constitution does not specify a number of seats. The Judiciary Act of 1789 created six Supreme Court seats (no tie-breaking Justice). That number later increased to nine. In 1937 President Roosevelt urged Congress to increase the number of Justices to 13, so he could “pack” the court with a liberal majority. In response, the conservative court began upholding New Deal legislation. Until FDR’s threat, it had consistently struck them down. Historians call this sudden judicial turnabout “the switch in time that saved nine.”
Can you beat FDR for partisanship? Can you imagine if a President Trump threatened to pack the Supreme Court with a pro-Trump majority? Liberals would scream “dictator!” Yet FDR remains a hero. Hypocrisy indeed.
Thomas M. Sipos