By Luke Brinker
Although I much preferred his predecessor Bob Herbert, I respect New York Times columnist Joe Nocera, who often brings keen insight and intrepid reporting to economic and financial issues. So I was disappointed by his column asserting that our nation’s broken judicial confirmation process can be traced back to the 1987 defeat of conservative jurist Robert Bork’s nomination to the Supreme Court. Nocera, who notes that only two Senate Democrats voted to confirm Bork, errs in two fundamental ways: first, in portraying Bork’s defeat as the product of pure partisan politics, and second, in his claim that “The Ugliness Started With Bork.”
Bork, who attended college and law school at the prestigious University of Chicago and served as solicitor general and circuit judge, undoubtedly had sterling legal and intellectual credentials when President Ronald Reagan nominated him to replace retiring justice Lewis Powell, a centrist. So why did his nomination go down in defeat? Bork denounced the civil rights and liberties protections granted by Chief Justice Earl Warren’s Supreme Court in the 1950s and 1960s (even while pledging fealty to Brown v. Board of Education), and even was on the record as endorsing Southern states’ right to impose poll taxes, which were historically used as a means of suppressing black voter turnout. His service in the Nixon Justice Department, given that administration’s record on the rule of law, was also a bit disconcerting.
In the conservative myth – now apparently accepted by the generally moderate-to-liberal Nocera – Bork lost his confirmation vote because of unfair efforts by the likes of Sen. Ted Kennedy to malign the judge as a bigot and misogynist. But when the Senate defeated the Bork nomination on a 58 to 42 vote, six Republicans – Sens. John Chafee (Rhode Island), Bob Packwood (Oregon), Arlen Specter (Pennsylvania), Robert Stafford (Vermont), John Warner (Virginia), and Lowell Weicker (Connecticut) voted against confirmation. Before dismissing these men as a bunch of liberal RINOs, it’s worth remembering that Specter, as the ranking Republican on the Senate Judiciary Committee, was one of the foremost defenders of now-Justice Clarence Thomas when he faced credible accusations of sexual harassment in 1991. For 13 percent of the Senate Republican caucus in 1987, Bork’s extremism and poor civil rights record were too much to countenance.
And what of the claim that divisive judicial politics started nearly a quarter century ago with Bork? Nocera, who’s 59, is old enough to remember the late 1960s effort by conservatives to impeach Chief Justice Earl Warren. The effort is believed to have had the private sympathies of no less a GOP luminary than Richard Nixon. The Chicago Tribune explains:
It’s still quite easy to remember the billboards that dotted the South in the 1960s with the common message: Impeach Earl Warren.
The chief justice of the U.S. Supreme Court was a pariah to a lot of Southern whites because the court he led so fundamentally changed their way of life. …
Warren was the kind of “activist judge” that Republicans have so effectively demonized, at least since the Reagan era. From the moment he joined the court and fashioned a unanimous decision in Brown vs. Board of Education, the first of many historic civil rights rulings, Warren and his court often took steps that neither Congress nor the White House would. …
Warren was a durable Republican from California who was supported in the decidedly conservative editorial pages of the Los Angeles Times in his many successful election campaigns, most notably his three terms as governor.
He was so popular he once won both the Republican and Democratic primary in the state, and his political potential was seen as limitless. He clearly eyed the White House and somewhat grudgingly agreed to be Thomas Dewey’s running mate in the 1948 presidential election.
By 1952, many saw him as a front-runner for the Republican presidential nomination. And he might well have won if not for the somewhat surprise entry of Dwight Eisenhower in the race during a time of war with North Korea.
Eisenhower, Newton writes, had a consolation prize in mind for Warren, namely to be solicitor general with an assurance that he would be considered for the first opening on the Supreme Court. The day Eisenhower was to make that appointment official, Chief Justice Fred Vinson died.
That single act changed history’s course.
Warren joined a court with justices who took a decidedly dim view of civil rights legislation and any expansive reading of the Constitution that would limit states’ rights. But Warren, Newton notes, used his abundant political skills to win a unanimous decision in Brown vs. Board of Education.
Eisenhower would later express regret about appointing Warren, but no one was more disappointed than then-Vice President Richard Nixon, whose rocky relationship with the chief justice dated back many years to their days in California.
The Supreme Court, as the apex of one of three coequal branches of our federal government, offers pronouncements on a multiplicity of consequential issues – civil rights, a woman’s right to an abortion, the meaning of the Second Amendment, the rights of prisoners detained at Guantanamo Bay, the role of money and politics, the constitutionality of the federal health care overhaul, and on and on – so it shouldn’t be any surprise that in the modern era, the Court has become a polarizing issue. And as the case of the liberal Republican Earl Warren attests, the phenomenon did not start with Robert Bork.