Sometime this year, maybe next, a vacancy will occur on the Supreme Court. When it does the pundits will remind everybody of the bruising battle over Robert Bork. They will all say that Bork forever changed the politics of judicial appointments. They will all be wrong.
They won’t be completely wrong. Bork was big. But by focusing on Bork they will be missing the larger picture. Step back and you see that standing next to Bork is a long line of failed nominees: Abe Fortas, Homer Thornberry, Clement Haynsworth, G. Harold Carswell, and Douglas Ginsburg.
The first thing you notice about the members of this group is that they were nominated by three relatively recent presidents: Lyndon Johnson, Richard Nixon, and Ronald Reagan, each of whom lost two nominees. Not since the 19 th century, when the Senate took a far more independent role in court appointments, were presidents handed this many defeats. Indeed, LBJ was the first president since Herbert Hoover to see a nomination fail. The last president before Hoover to lose a Supreme Court nominee was Grover Cleveland.
As you study our little group portrait of Fortas, Thornberry et al. what you begin to notice is that they failed to win confirmation because their nominations raised social questions about which Americans were deeply divided. Fortas, whom LBJ wanted to elevate to Chief Justice to replace retiring Earl Warren, was associated with the liberal Warren Court’s decisions on race and crime. Billboards in the South featured the message, “Impeach Earl Warren.” Nixon on the campaign trail in 1968 castigated the Warren Court for going “too far in weakening the peace forces as against the criminal forces.”
After Nixon won the presidency he was determined to put a so-called strict constructionist on the Court. His first nominee, Warren Burger, slipped through quickly during the traditional presidential honeymoon. But the following year Haynsworth, a Southerner, was defeated after suspicions were raised about his commitment to civil rights. Nixon, furious, told advisor Harry Dent, “I want you to go out this time and find a good federal judge further south and further to the right.” Dent found G. Harold Carswell, who in 1948 had publicly endorsed segregation.
We all know about Bork. He was supposed to be the conservative’s fifth vote to overturn Roe. The year before pro-choice forces had let Antonin Scalia slip by without a fight. But when Bork was nominated, they mounted a grassroots campaign the likes of which the capital had never before witnessed in connection with a judicial nomination.
What you also notice is that the fights waged against our little group were vicious and they were vicious beginning with Fortas. It’s not Bork the pundits should point to as a turning point. It’s Fortas. Russell Long referred to Fortas as one of the “dirty five” on the Warren Court who voted for criminals. Fellow Southerner James Eastland observed during the battle that he had “never seen so much feeling against a man as against Fortas.” After Strom Thurmond mounted a successful filibuster against Fortas, Democrats vowed they would not soon forget what had happened. And they did not. They turned down Haynsworth, Senator Gale McGhee (D-WY) conceded, because of Fortas. “Had there been no Fortas affair … a man of Justice [sic] Haynsworth’s attainments … undoubtedly would have been confirmed.”
Something did change between the Fortas and the Bork fights. The partisanship got worse as the years went by. By Bork the battle lines over controversial nominees divided neatly along party lines. They did not earlier. Seventeen Republican senators voted against Haynsworth, a departure from party loyalty unthinkable a decade later. Just six Republicans voted against Bork.
Why the change? For the simple reason that by the 1980s the parties had become more ideologically uniform than they ever had been. The conservatives had left the Democratic Party, the liberals had been driven out of the Republican Party. Nixon in 1970 had made war on moderates like New York’s Charles Goodell. By the 1980s Goodell and all his ideological soul mates—Edward Brooke, Clifford Case, John Sherman Cooper—had either left the party or changed their stripes (like one-time moderate George H.W. Bush).
This isn’t exactly news. But the establishment has been reluctant to accept it. Official Washington likes to pretend that ideology doesn’t play the role we all know it does. That’s why senators almost never publicly admit that they oppose a nominee on ideological grounds. Far better to oppose Fortas because he had taken large lecture fees from business people likely to have cases before the Court; Haynsworth, because he had heard cases involving companies in which he held stock; Carswell because he may have lied to the Senate about his views on race; Ginsburg because he had smoked dope with his students at Harvard. Only Bork was opposed expressly on ideological grounds once he had been tarred as an extremist. And even Bork was considered unacceptable, said many Democrats, because he had concealed his true beliefs, not because of the beliefs themselves. As wags out it, Bork was guilty of “confirmation conversion.”
The ideological character of the nominees would not matter if the Court was a mere bystander in the culture wars still raging in America. But of course the Court is not a mere bystander. The current Court under conservative leadership is now every bit as activist as the liberal Warren Court conservatives once vowed to reel in.
As long as the parties remain ideologically uniform and the Court remains a battleground in ideological wars our little group, beginning with Abe Fortas, is likely to grow larger and larger.