Why Supreme Court Nominations Prompt Scorched-Earth Warfare

By Jonah Goldberg After successfully delivering the secret knock and password a beleaguered unshaven older man walks into the bunker stomping out the cold from his feet on the way in. He walks over to one of the garbage-can fires where his younger yet battle-hardened comrades are gathered strategizing about the fight to come. As the grizzled veteran rubs his hands over the flames his eyes glinting in the firelight he says to them wistfully You know Supreme Court nomination fights werent always like this. Its not quite that bad yet in Washington but the year is young and the fight over Neil Gorsuch President Trumps nominee for the Supreme Court has just begun. Whenever there is a Supreme Court vacancy a preemptive wave of exhaustion comes over me. Its the same arguments every time. Some process arguments migrate from one party to another depending on which side is on defense or offense. The nominee deserves a speedy hearing and confirmation each side yells when their guy is in the White House. We have an obligation to take the advise-and-consent role seriously and cannot rush the process each side insists when the other team controls the White House. Each party has an endless supply of quotes to throw at the other proving their hypocrisy. For instance under Presidents George H.W. Bush and George W. Bush respectively Democratic Sens. Joe Biden (back when he chaired the Judiciary Committee) and Chuck Schumer argued that the Senate must not consider any appointments during a presidential campaign. Under President Barack Obama Republicans took that advice and refused to consider Obamas nominee Merrick Garland. But when it comes to ideological arguments -- my favorite kind -- the team jerseys never change. Republicans rightly by my lights argue that the Supreme Court should not act like an unelected legislature making up laws and Constitutional rights as it pleases. Democrats argue wrongly in my opinion that the Constitution is a living document that must be reinterpreted and given new meaning with every generation. I think this is a garbage argument and have explained why I think so in countless columns. No doubt Ill have to again sometime soon. But theres another argument worth dealing with. Many conservatives -- myself included -- argue that the rejection of Robert Bork is what poisoned the Supreme Court nominating process. On one level I think that is right. Bork whom I knew was one of the great legal minds of the 20th century. Even Biden admitted before Borks nomination that barring some unforeseen skeletons in his closet Bork was simply too qualified to be rejected. Say the administration sends up Bork Biden told the Philadelphia Inquirer in November 1986 and after our investigations he looks a lot like earlier Reagan nominee Antonin Scalia. Id have to vote for him and if the special-interest groups tear me apart thats the medicine Ill have to take. Scalia recall had been confirmed unanimously 98-0. It turned out that Biden would balk at taking his medicine. With the help of a vile demagogic attack from Ted Kennedy and left-wing interest groups Biden helped tank Borks nomination. And thus began the process of scorched-earth warfare over Supreme Court confirmations. While I think the Bork bitterness interpretation explains a lot it also misses an important point. Such battles are inevitable when the Supreme Court becomes another legislative branch. People balk at all the money special interests now spend on these fights but that money pales in comparison to what is spent by lobbyists on congressional elections. So why should it surprise anyone that when the Supreme Court acts like another Congress special interests will act likewise? If forced to fix blame on the primary cause of this mess it was the 1973 Roe v. Wade decision which invented a constitutional right to abortion. Even Ruth Bader Ginsburg has conceded that the case short-circuited the democratic process and prevented a national consensus from forming on how to deal with the issue. My criticism of Roe is that it seemed to have stopped the momentum on the side of change she said in 2013 on Roes 40th anniversary. Whatever you think of Roe v. Wade the decision is emblematic of the courts evolution into a lawmaking body. Once that happened it was inevitable that the process would be Borkified. Whats remarkable is not that it happened but that it took so long.