Playing the Long Game for the Supreme Court by Linda Greenhouse
Conservatives emerged from the Bork battle bent on winning control. It took 31 years. How will progressives respond?
'It was 31 years ago this week, on Oct. 23, 1987, that the Senate rejected the Supreme Court nomination of Robert H. Bork. Thirty-one years and a world ago: eight senators crossed party lines, with six Republicans joining 52 Democrats in voting against confirmation, while two Democrats joined 40 Republicans in supporting President Ronald Reagan’s nominee, one of the country’s best known and most outspoken conservative intellectuals. It was the biggest margin of defeat for any Supreme Court nominee in history.
The seat intended for Judge Bork — the seat that had been occupied for 15 years by Justice Lewis F. Powell Jr., an appointee of President Richard Nixon and the “swing” justice of his time — went eventually to Anthony M. Kennedy. Justice Kennedy turned out to be the non-Bork, voting to preserve the right to abortion and writing a series of gay-rights rulings that culminated with the 2015 decision that announced a constitutional right to same-sex marriage. We know that now, but we didn’t know it then. The urgent question that emerged from the ashes of Judge Bork’s defeat and that awaited an answer as Justice Kennedy took his seat in February 1988 was: Who won the Bork battle? If Anthony Kennedy turned out to be, as some predicted, “Bork lite” or “Bork without the bite,” voting as a Justice Bork would have voted, then the answer would be clear. The Reagan conservatives, despite having to tack against the wind of a rising Democratic tide, would have prevailed. The Democrats had retaken the Senate in the 1986 midterm elections, meaning that a fading Reagan administration, weighed down by the Iran-contra scandal, had lost the opportunity for legislative accomplishment. But President Reagan, filling a fourth and final vacancy, would have nonetheless managed to capture the Supreme Court.
But if, on the other hand, Justice Kennedy turned out to embrace a constitutional vision notably more inclusive than Judge Bork’s, if he rejected Judge Bork’s doctrinaire originalism, then the scorched-earth Bork battle would be deemed worthwhile and the liberal side would be seen to have prevailed. Indeed, that’s been the triumphalist liberal narrative for a generation. I’ve channeled it myself, writing it more times than I’d like to count about how the Bork confirmation hearing became the equivalent of a national constitutional teach-in that provided the country with a working definition of the constitutional mainstream. By that, I mean the right to women’s reproductive autonomy, a role for the government in taking account of race in order to achieve meaningful equality, an approach to constitutional interpretation that wasn’t shackled to the framers’ original understanding of their 18th-century project. Judge Bork testified about his views for five spellbinding days. That the Senate rejected him despite his abundant professional qualifications had to mean that the public understood those views as outside the mainstream and thus unsuited for the Supreme Court.
And that narrative was most likely accurate early on as three Republican-appointed justices — two named by Ronald Reagan and one by President George H.W. Bush — united against all predictions to provide the narrow margins that preserved the right to abortion, kept organized prayer out of public school graduation ceremonies and overturned a Colorado constitutional provision that discriminated openly against gays. The Bork battle, it seemed, had made the Supreme Court safe for a progressive reading of the Constitution.
But could anyone except a still-sleeping Rip Van Winkle make such a claim today? Consider two news items from last week that serve to illuminate the current reality. One was the revelation that the Heritage Foundation, a deeply conservative policy shop in Washington that has partnered with the Federalist Society in providing President Trump with judicial nominees, was running a secretive training academy for ideologically vetted judicial law clerks. The foundation suspended the program after it came to public attention. . .
In other words, conservatives emerged from the Bork battle determined to win the war. They are succeeding in doing something that progressive are simply bad at: playing the long game. A long game takes a long time — 31 years, in this case — and requires electoral victories, a necessary but not sufficient condition. Conservatives, once in office, never relaxed their focus on the courts. The Trump administration’s front-loading of judicial nominees is simply a ramping up of an established pattern.'>>>
https://www.nytimes.com/2018/10/25/opinion/supreme-court-conservatives-progressives.html?
