Federal Courts and Nominations

OP-ED: Senate Rightly Rejected Bork, Must Scrutinize All Supreme Court Nominees

In a Washington Post piece last week, retired federal Judge James Robertson laments the Senate’s rejection of Robert Bork’s confirmation to the Supreme Court 30 years ago as an event ultimately leading to what Judge Robertson views as the undue politicization of the judicial confirmation process. As a “peace offering,” Judge Robertson advises Senate Democrats not to oppose the confirmation of current Supreme Court nominee Neil Gorsuch.

I learned from Judge Robertson’s piece that we have something in common. Back in 1987, we were both among the many lawyers working to compile the record of then-nominee Robert Bork, showing that Bork was unfit to serve on our nation’s highest court. The commonality, however, apparently ends there. According to Robertson, “I regret my part in what I now regard as a terrible political mistake.”

Well, I don’t regret my part at all (however inconsequential it may have been), nor do I regard the Senate’s rejection of Bork’s confirmation as a “political mistake.” Anyone with the twisted views of our Constitution that Bork had, including of the constitutional guarantees of equality under the law and the equal dignity of all persons, as well as of the civil rights laws implementing those fundamental rights, has no place on the Supreme Court.

During law school, I’d had a front row seat to Bork’s crabbed, harmful views of equality. In 1978, during my final year at Yale, the gay and lesbian law student group to which I belonged asked the faculty to require law firms and other employers who were given the privilege of using the law school’s facilities to interview students to confirm that they did not engage in sexual orientation discrimination in hiring. The school’s policy already required such a representation as to other forms of discrimination, including on the basis of race and sex.

Bork, then on the Yale Law School faculty, reacted with venomous opposition, writing a memo to his faculty colleagues that began, “There is no need to rehearse at length the intellectual emptiness of the arguments put forward on behalf of this proposal.” The proposal, however, “won handily.”

As it happened, that same semester, I was also enrolled in Bork’s class on antitrust law. Bork sometimes sprinkled his in-class remarks with his views on matters unrelated to antitrust, including his belief that law firms should not be required to hire anyone – including women – they did not want to hire. It was quite a class.

At the end of the semester, after final exams, Bork gave me the highest grade possible. How ironic I thought – Bork found no fault with my substantive abilities (at least insofar as his class was concerned), yet thought it should be permissible for a law firm not to hire me because I’m gay, or because I’m a woman, or both.

After Bork was nominated to the Supreme Court, the scrutiny of his far more public record confirmed what I had seen personally at Yale. This was someone whose skewed, dangerous legal philosophy was disqualifying for a Supreme Court nominee.

That Bork’s confirmation was rejected, and that Anthony Kennedy was subsequently confirmed to the Court instead, had consequences of monumental proportions for the good, not the least of which was Justice Kennedy’s opinion for the Court in Obergefell v. Hodges, a 5-4 ruling that the Constitution requires marriage equality for same-sex couples. There can be no doubt which side of that ruling Bork would have been on.

While I disagree with Judge Robertson that the Senate’s rejection of Bork’s nomination was a “political mistake,” I do share his view that the judicial confirmation process has become too politicized. As evidence, one need look no further than the unprecedented refusal last year by Senate Republicans to give President Obama’s nominee to the Supreme Court, Merrick Garland, any consideration whatsoever, instead holding the vacancy on the Court open in the hope that a Republican would be elected to the White House. Nothing could be more politicized than that.

Nevertheless, I disagree that Democratic Senators should now unilaterally disarm, apparently by refusing to scrutinize the record of current Supreme Court nominee Neil Gorsuch. That scrutiny is required for Senators to carry out their constitutional obligation to consent, or not, to a judicial nominee. The American people have a right to know, for example, whether, for Judge Gorsuch, constitutional time stopped in the late 18th Century, or whether he can demonstrate fidelity to the whole Constitution, including the Reconstruction Amendments adopted in the wake of the Civil War that wrote guarantees of equality under the law for all persons into our nation’s charter.

As we learned from the Bork nomination, there’s nothing politicized or inappropriate about such scrutiny; to the contrary, a failure by the Senate to engage in such an examination as to any Supreme Court nominee could have profoundly harmful consequences.

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