A Democratic Senate pattern, from Bork to the filibuster rule.
So what else is new? Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:
• The Bork assault. When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.
Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.
No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.
Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.
Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”
• Filibustering appellate nominees. It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.
Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.
Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.
This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.
• Breaking the filibuster for appellate nominees. That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.
Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.
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