Justice

The Single Worst Argument Against Confirming Merrick Garland

CREDIT: AP Photo/Evan Vucci

You started it!

That was Sen. Orrin Hatch’s (R-UT) message in a Senate Judiciary Committee hearing last Thursday, when he attempted to defend his party’s refusal to consider anyone nominated by President Obama to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia. In response to a speech by Sen. Al Franken (D-MN), who noted that there is no precedent in this century for the Senate refusing to give a Supreme Court nominee a confirmation hearing, Hatch raised the specter of Robert Bork.

As Franken and Sen. Patrick Leahy (D-VT) swiftly pointed out, Bork, whose nomination to the Supreme Court was rejected by a bipartisan 58-42 vote in 1987, received both a vote and a hearing. Nevertheless, Hatch maintained that this vote was a turning point in the politics of Supreme Court nominations. Bork, Hatch claimed, was “one of the greatest legal minds we’ve had,” and Bork’s rejection was the beginning of the cycle of escalating efforts by both parties to keep the other party’s nominees off the Supreme Court, according to Hatch.

Failed Supreme Court nominee Robert Bork (AP Photo/Susan Walsh)

Failed Supreme Court nominee Robert Bork (AP Photo/Susan Walsh)

Hatch does have a point. Republicans have long viewed Bork as a fallen martyr, and Hatch is hardly the first Republican to cite the Bork vote in order to justify obstructionist tactics against Democratic nominees. Indeed, the GOP’s repeated insistence that Bork was unfairly treated says as much about why they’ve erected such an extraordinary roadblock in front of Supreme Court nominee Merrick Garland as anything else Republicans have offered to explain their actions.

Judge Bork’s opponents made a weighty case against his nomination in 1987. Bork, a judge on the court where Garland currently serves, previously served as United States Solicitor General and was an influential scholar of antitrust law. He also had a long history of criticizing progressive Supreme Court decisions. Bork opposed the doctrine of one person/one vote, which eliminated malapportionment of state legislatures that gave rural votes far more representation than urban voters. He criticized decisions striking down racial covenants in housing and those banning voter literacy tests. He attacked a decision invalidating poll taxes. And he opposed Supreme Court decisions saying that the Constitution forbids the government from discriminating against women — arguing instead that “the Equal Protection Clause probably should be kept to things like race and ethnicity.”

Bork’s most well-known statement, however, most likely came from a 1963 article he published in the New Republic, which opposed federal bans on race discrimination by businesses. The principle behind such laws, Bork argued, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.” (Bork later repudiated this statement — although he did not repudiate many of his other previously expressed views.)

So when Hatch and other Republicans place themselves on the side of Robert Bork, they embrace the view that vocal and strident opposition to the ban on whites-only lunch counters should not disqualify an individual from service on the Supreme Court. It’s easy to see why someone who holds this unusual viewpoint would be unwilling to accept anyone nominated by President Obama.