A moderate Supreme Court justice retired, a critical swing vote who despite being appointed by a Republican president had regularly sided with the bench’s liberal wing on social issues.
The ideological tilt of the court hung in the balance, and a Republican president pushed hard with a conservative nominee that led to the most politically charged confirmation hearings in a generation, including intimate questions about the nominee’s personal life.
That battle ended 31 years ago this month with the defeat of Robert H. Bork’s nomination. But the war over this particular slot goes on.
All Supreme Court seats are not created equal, and that’s what made Brett M. Kavanaugh’s confirmation on Saturday to fill the seat of Anthony M. Kennedy, who retired, such an epic fight — the latest brawl over the most critical swing seat on the court for the past 50 years.
President Trump’s nomination of Kavanaugh had all the echoes of President Ronald Reagan’s nomination of Bork in July 1987 to replace the retiring Lewis Powell, whose 16 previous years as a justice had been marked by centrist votes that maintained abortion rights and affirmative action.
Bork’s defeat in October 1987 led to the eventual compromise selection of Kennedy, who went on to continue Powell’s roll as a critical swing vote. He supported abortion rights and, in particular, authored landmark gay rights rulings that led to legalizing same-sex marriage.
Powell himself had been something of a compromise after President Richard Nixon’s original front-runners ran into opposition. So Bork’s loss became a rallying cry among conservative ranks, who even coined the term “Borked” to signify a nomination that blows up when one side thinks the other does not play by the rules.
So when Kennedy announced his retirement in the summer, Republicans were going to fight, and fight harder than ever, to win this seat. Conservatives were not going to lose again, like they did with Bork, or settle for a centrist, like they did with Kennedy and Powell for the past 47 years.
By Friday, as the nomination was on a glide path to victory, one of today’s combatants coined a new battle cry for conservatives.
“When you say ‘Kavanaughed,’ I don’t know what you’ll be saying in the future. But I think it will become a shorthand, at least on our side, for a double standard,” said Sen. Lindsey O. Graham (R-S.C.), who gave a fiery defense of the nominee during the Sept. 27 hearing, “and, at least on our side, for wanting to win too much.”
Graham meant that as an attack on Democrats, suggesting that their desire to defeat Kavanaugh led them to embrace allegations against the judge of sexual misconduct in high school and college that Graham considers unfounded.
Democrats, if they choose to embrace the term “Kavanaughed,” will agree that it means wanting to win — and they will point the finger straight at Senate Majority Leader Mitch McConnell (R-Ky.).
To them, McConnell orchestrated the defense of Kavanaugh when the nominee was accused of sexual assault as a 17-year-old in 1982, dictating tactics that prioritized speed over a full investigation into that accusation and another while the nominee was a freshman at Yale University.
“The manic rush to place Judge Kavanaugh on the bench was more important to the Senate than these women,” Sen. Patrick J. Leahy (D-Vt.), the longest-serving senator, said in a floor speech.
Leahy made clear in an interview afterward that he blames the GOP leader for the recent clashes over judicial nominations. As contentious as Bork’s confirmation was, six Republicans voted against him, and two Democrats supported him — a far cry from Saturday’s vote in which just two senators, Lisa Murkowski (R-Alaska) and Joe Manchin III (D-W.Va.), crossed the aisle.
Leahy, a former Judiciary Committee chairman, remains bitter at McConnell for declaring, within hours of Justice Antonin Scalia’s death in February 2016, that he would not allow any Supreme Court nominee of President Barack Obama’s to receive a hearing because it was Obama’s last year in office. He noted that Kennedy was unanimously confirmed in 1988, Reagan’s final year in office.
“Of course Senator McConnell has said you never have a vote on a justice in a presidential election year,” Leahy said.
Conservatives saw the Kavanaugh confirmation as part of a long, slow decline that began with Democrats fighting Bork, followed by similar allegations of sexual misconduct during the 1991 confirmation of Justice Clarence Thomas.
“It’s really just been a continuation and sometimes an escalation of what we saw in 1987,” Leonard Leo, a White House adviser on Supreme Court nominations, said after leaving the Senate’s public gallery following the vote on Saturday.
Leo, who will return later this month to his role overseeing the Federalist Society, said he thinks that every one of the nine seats is “equally important” but that he realized the Powell-Kennedy-Kavanaugh slot is a “historic seat” for its pivot point on the ideological tilt of the court.
Sen. Charles E. Grassley (R-Iowa), the Judiciary Committee chairman, acknowledged this weekend that his panel has become so divisive that it is hard to recruit senators to serve on it, forcing McConnell to beg several Republicans to join so the chairman can have a full slate.
Grassley contends that, after Bork and Thomas, the succeeding decade of judicial confirmations changed. But then, he said, Senate Minority Leader Charles E. Schumer (D-N.Y.), as a junior member in 2001, led a strategy that enabled Democrats to block President George W. Bush’s nominees based on legal ideology rather than qualifications for the posts. Soon after that strategy took hold, Democrats blocked conservative lawyer Miguel Estrada from an appellate court seat because they said he did not answer their questions about his ideology.
“That’s poisoned the well for the last 18 years,” Grassley said.
Other senators have grown increasingly dark about the outlook for these confirmation fights in the future, noting that this latest process was so brutally personal.
“I hope and I pray that we don’t find ourselves in this situation again,” Murkowski said during her speech explaining her opposition to Kavanaugh’s nomination. “But I’m worried. I am really worried that this becomes the new normal, where we find new and even more creative ways to tear one another down.”
Comparing the Bork and Kavanaugh fights, Leo said that the biggest difference might have been the 24-7 cycle of news moving across multiple cable outlets and social media networks that didn’t exist 30 years ago.
As bad as Bork seemed, Leo said, it might have been worse. “It’s hard to know what 1987 would have looked like if we had the technology that we have today.”