Dallas Morning News - Important differences between the nomination battle over Judge Robert Bork and that of Judge Neil Gorsuch reveal critical truths about the nomination of Supreme Court justices. Spoiler alert: Votes matter.
A bit of disclosure up front. I attended Columbia University with Judge Gorsuch. Neil pledged my fraternity, Phi Gamma Delta, as a freshman in 1985. I was a senior at the time, and, though we represented opposite ends of the political spectrum, I remember him as very smart, humble and mature beyond his years.
Almost two years later, after my first year at Georgetown Law, I served as an intern on then-Sen. Joe Biden's staff at the Senate Judiciary Committee during the nomination of Judge Robert Bork to the Supreme Court.
Judge Bork was well-known in Washington circles. He carried out President Richard Nixon's order to fire the Watergate special prosecutor, Archibald Cox, after two of his superiors, including the attorney general at the time, resigned rather than carry out the order. He spent much of his career as a law professor and was a prolific writer, often taking highly controversial positions. He refused the customary preparation for confirmation hearings and, while readily able to discuss case law and issues, he came off as a grouchy elitist. He looked menacing with his neck beard and rarely smiled. When asked why he wanted to be a Supreme Court justice, Judge Bork said, "It would be an intellectual feast." In an era of televised hearings, he was not ready for prime time.
In 1986, the year before Judge Bork was nominated, the Democrats reclaimed control of the Senate. While the debate in the Senate focused on his judicial philosophy, the Democratic majority ultimately rejected Judge Bork because they could. They had the votes. This forced President Ronald Reagan to nominate a more moderate judge, Justice Anthony Kennedy. Although the Democrats had the votes to block Justice Kennedy's nomination, he was approved, 97-0, by the Senate.
Following the death of Justice Antonin Scalia, Republicans challenged President Barack Obama to nominate a moderate judge they could confirm. Someone, as Sen. Orrin Hatch stated, "like Judge Merrick Garland." But once President Obama actually picked Judge Garland, the Republicans refused to even schedule a hearing on his nomination, much less a vote. This was a historic rejection of Senate tradition, and Democrats have every right to complain about how unfair it was to Judge Garland. Republicans blocked him — because they could. They had the votes.
In refusing to vote on the Garland nomination, the Republicans took a huge gamble that their nominee would take the White House in the 2016 election. The gamble paid off, and President Donald Trump won the right to nominate Judge Gorsuch.
In clear contrast to Judge Bork, Judge Gorsuch sailed through his hearings. Now the issue before the Democrats is whether to use their last line of defense, the filibuster, to try to block Judge Gorsuch. If they do, Sen. Mitch McConnell, the majority leader, has already pledged to eliminate the filibuster for Supreme Court nominees, which requires only a majority vote. Either way Judge Gorsuch will be confirmed. Despite the injustice done to Judge Garland, and despite the demands of liberal interest groups to block this nomination, Democrats just do not have the votes.
The silver lining, in my opinion (which I admit is not entirely unbiased), is that I personally know Justice Gorsuch to be a fair and reasonable person, not driven solely by adherence to a rigid judicial philosophy. His views are within the mainstream of judicial thought. He will not roll over for President Trump or the Republican Congress. Although he is a conservative, I believe he will be more reasonable than Justice Scalia.
The Democrats should engage in debate over the nomination and highlight the risk that important precedents may fall under a conservative majority on the court. But they should not allow the filibuster to be eliminated in a losing battle over this nominee. Instead, the focus should be on re-taking the Senate in 2018. Elections have consequences and votes matter. That is the ultimate lesson here.
Peter M. Oxman is a partner at Seyfarth Shaw LLP in Houston.