Pining for Bork

Illustration by Andy Friedman

About halfway through John Roberts’s Supreme Court confirmation hearings, I found myself grappling with a strange and surprising emotional reaction: I was pining for Robert Bork. For anyone with a sense of history watching Roberts artfully bob and weave through his face-off with the Senate, it was hard to ignore the hovering specter of the goateed strict constructionist, whose ordeal in the upper chamber took place exactly eighteen years ago this month. In no small part, the ease of Roberts’s passage was due to his positioning as Bork’s inverse doppelgänger: humble where Bork was arrogant, silken where Bork was spiky, cherubic where Bork was Mephistophelean—and evasive where Bork was candid.

For the Bush White House, offering up a plausible anti-Bork to be the new chief justice has proved to be not merely clever but fortunately timed. In the wake of Katrina and its submersive effect on Bush’s approval numbers, the last thing the administration needed was some Borkian bloodbath. What it needed was a solid win smoothly achieved—and, barring a last-minute revelation of a Roberts indiscretion of the dead-girl–live-animal variety, that’s precisely what it’s going to get.

The received wisdom in Washington is that the nomination now waiting in the wings will be another story; that Bush’s selection to replace Sandra Day O’Connor is guaranteed to ignite a conflagration. These ominous predictions are invariably offered in tones of resigned regret, along with earnest entreaties to the president to choose a path of conciliation.

But just below the surface, in the activist cadres of both parties that drive confirmation politics, there is in fact a palpable yearning for a knockdown, drag-out brawl. Fueling this desire are a host of motivations, many of them mindlessly divisive—and yet I see the point. Even after Roberts’s senatorial interrogation, we still have precious little grasp on what sort of justice he will be. Which isn’t exactly the outcome you’d hope for with the future of the court in the balance. So long as Bush is in charge, liberals have no reason to expect anything other than that his judicial appointments will be Federalist Society types. (Certainly the folks who run that shop consider Roberts one of them.) Instead, perhaps the best we can hope for is clarity in the matter—for a nominee whose ideological bent is clear, and for a fight that makes plain what the right is after in its crusade to capture the courts. For Democrats, the brutal truth is that, when it comes to judicial politics, in the short run all is lost; the long game is everything. And to win that game, engaging in another Bork-style imbroglio may be not only unavoidable but essential.

No one, of course, would take greater umbrage at that assertion than Bork himself, who recently graced a National Press Club luncheon down in Washington. Despite his lingering bitterness over the fate that befell him, he was engaging, frank, and funny. Unlike Roberts, Bork defended the Federalist Society: “The ultraliberals’ description of [it] as some form of right-wing conspiracy,” he cracked, is “on the veracity level of the Protocols of the Elders of Zion.” And he offered a few pieces of hard-won wisdom to future nominees: “Don’t write or say anything about the Constitution … Don’t commit your vote at the hearings on any issue … Don’t make it obvious that you think some of the senators’ questions reveal that they don’t have a clue about the Constitution.”

With those three admonitions, Bork codified the approach that Roberts took in his testimony. For every apparently straightforward declaration, there was a loophole large enough to accommodate a Hummer limousine. Repeatedly he suggested that he agreed with past rulings, but often did so employing weasel words made notorious by Clarence Thomas: “I have no quarrel with that.” Then there was his bald assertion, “I am not an ideologue”—a claim that, like Bill Clinton’s legendary “The president is relevant,” suggests by its very use reason to be doubtful.

By the end of the hearings, Democrats were befuddled. “It was frustrating,” says People for the American Way president Ralph Neas. “He did a great job of creating the illusion of candor.” Further muddying the waters was Roberts’s cultivation of friendships across the partisan aisle: “I don’t know how he found the hours to have so many lunches with so many members of the Democratic Establishment.”

And so, inevitably, in the days before the Judiciary Committee vote last Thursday, Democrats fell into a fit of hand-wringing that was epic even by their standards. (Most flagrant was Chuck Schumer, for whom thoughts of potentially supporting Roberts were apparently dashed by Mayor Michael Bloomberg’s declaration of opposition. As one liberal strategist said to me, “There was no way Chuck was going to end up to the right of a Republican.”) Predictably, when the vote arrived, the committee’s Democrats split, with five against and three in favor—suggesting that, in the final Senate tally, as many as twenty Democrats may wind up backing Roberts. “The theory is that, by giving Bush this victory, we’re in a better position to fight him on the next one,” this same strategist explained.

Republicans, you’d think, would be celebrating over the Roberts-induced aphasia among Democrats—and many are. But on the rightmost flank of the GOP there are murmurs of discontent. From Capitol Hill have come blind quotes about Republican senators feeling “disappointment” in Roberts for being insufficiently (or too ambiguously) conservative. And from Evangelical outfits beyond the Beltway, such as Phyllis Schlafly’s Eagle Forum, have come less guarded declarations of concern that on key issues of judicial disposition, not least Roe v. Wade, he remains a cipher.

Not that any Republicans are going to turn on Roberts. But the pressure from the wackjob caucus is mounting to appoint a justice, as Bush pledged to, in the Thomas-Scalia mold—another Bork, that is.

If I were a Republican, I’d be tempted to say: Pity poor George W. Bush. His wife is telling him (and also telling reporters—she said it again last week to the AP) to nominate a woman. (And having ignored her once before, he must be loath to do it again.) The Democrats are telling him not to put forward any of the appeals-court judges whose nominations they previously filibustered. And his heart must be telling him to choose Alberto Gonzales, allowing Bush, as is his wont, to reward a friend, while appointing the court’s first Hispanic justice.

All these voices matter to Bush, but none matters more than that of Karl Rove. And it’s a fair bet that the advice he’s giving now is that Bush needs to satisfy the right. “What I’ve found is that when they’re in trouble they go to their base,” says Mark Gitenstein, a Democratic lawyer and Bork war veteran with long ties to Joe Biden. “In a perverse way, I think they’d actually like a fight to distract from all this shit in New Orleans.”

Indeed, if the nominee is also black or Hispanic, the choice might serve an additional strategic purpose in the aftermath of Katrina. “I think Rove would like nothing more than to put Democrats in the position of attacking a black or a Hispanic,” says another liberal strategist. “Republicans had been making real strides with those groups—until New Orleans, that is.”

The idea of a teetering second-term president, plagued by political ills at home and abroad, nominating to the court a screaming right-winger who’s sure to provoke a massive partisan battle—it seems crazy on its face. But it’s not unprecedented. Back in 1987, Ronald Reagan put forward Bork in the face of anemic poll numbers, the Iran-Contra affair, and an investigation by a special counsel of his trusted adviser Ed Meese. (Sound familiar?) “Their instincts were the same as this White House’s,” Gitenstein recalls. “To stoke up the true believers.”

Just below the surface, in the activist cadre of both parties, there’s a yearning for a knockdown, drag-out brawl.

For Reagan, the failure of the Bork nomination marked the end, for all practical purposes, of his administration. And the risks here might prove to be nearly as great. In the wake of Katrina, with Iraq a mess, and Social Security reform now a dead letter, Bush was already flirting with lame-duckism. The flameout of a Supreme Court nominee might be enough to send his second term careering into impotence.

Bush, however, is blessed with circumstances more forgiving than Reagan was. Most obviously, Republicans today control the Senate, which they didn’t then. The only way for Democrats now to block a nomination is by using the filibuster, though that might induce a countermeasure: the dreaded nuclear option, ending the use of filibusters for judicial nominees, that was debated and shelved this past spring. Indeed, one scare scenario currently making the Democratic rounds is that the White House might pursue what’s being referred to as the “sacrificial-lamb strategy”: Nominate one of the wingnuts’ favorites, such as appeals-court justices Priscilla Owen or Janice Rogers Brown, precisely to create a chain reaction that would lead to going nuclear. If the nominee got through, great. But if not, no big deal. The White House would then send up another far-rightist, on the assumption that Democrats would be unable to muster the energy or discipline to defeat two consecutive appointments.

Apocalyptic talk, for sure, but that’s what’s in the air these days in the nation’s capital. Bush’s election made it all but certain that, through his appointments to the court, he will shape the future law of the land as profoundly as any modern president. A truly frightening thought. But I can’t help but take some consolation in the prospect of what lies ahead. Since Bork’s collapse, Supreme Court nominations have devolved into a kind of Kabuki, in which intelligent and accomplished jurists strive to say nothing of interest—and the rest of us are left to puzzle over their performances for hints as to what they believe. As Bork has observed, it is a “broken process.”

But if Bush picks a hard-core conservative, the ensuing battle, though vile and venomous, may also be clarifying—and beneficial to the cause of Democrats over the long haul. To borrow a phrase from our president: Another Bork? Bring her on.

Pining for Bork