You cannot understand the confirmation process of Amy Coney Barrett without understanding that of Robert Bork. Nominated by Ronald Reagan in 1987, Bork was a polarising figure, known for his disdain for the supposed liberal activism of the court. Ted Kennedy of Massachusetts, deeming Bork to be too radical for the court, turned away from the bipartisan tradition of assessing a nominee’s qualifications rather than values. The Judiciary Committee hearings featured hostile questioning, and Bork was ultimately rejected by 58-42 in a Democratic-majority Senate. The events produced the term “borked,” referring to the vigorous questioning of the legal philosophy and political views of judges in an effort to derail their nomination. The legacy of Bork lives on today.
The death of Supreme Court Justice Ruth Bader Ginsburg (RBG) has triggered a high-stakes nomination process just weeks before the election. The Supreme Court is the highest level of the judicial branch in the US, with Justices nominated by the President and voted on by the Senate. The process usually takes a few months, with nominees being interviewed privately by senators, and then publicly by the Senate Judiciary Committee, before being forwarded by the committee to be voted on in the Senate.
However Barack Obama’s final year in office altered the traditional conception of nominating Supreme Court Justices. With the death of Justice Scalia in 2016, Obama, in alignment with the Constitution, nominated Merrick Garland to fill the seat. However, in what political scientists Steven Levitsky and Daniel Ziblatt deemed “an extraordinary instance of norm breaking,” the Republican-controlled Senate refused hearings. Senate majority leader Mitch McConnell argued that in an election year the Senate should wait until a new President has been elected, thus giving “the people” a say in the nomination process.
His position proved polarising. The practice of the Senate blocking a specific nominee (as in the case of Bork) would usually be fairly uncontroversial, even happening to George Washington in 1795. The issue was McConnell preventing an elected President from filling the seat at all, something that had never happened in post-construction US politics.
Yet the death of RBG has shown this precedent to be short-lived. Despite a Court seat opening up even closer to the election, the vast majority of Republicans have accepted McConnell’s present claim that his own precedent doesn’t apply in an election year if the same party holds both the Senate and Presidency. Thus, President’s Trump’s nominee, Amy Coney Barrett, looks set to be confirmed.
It’s unknown how polarising her confirmation will be. The hearings of Clarence Thomas in 1991 were dominated by the questioning of Anita Hill over her allegations of sexual harassment against the then-nominee, with Thomas then accusing the Democrat-led hearing of being a “high-tech lyniching for uppity who in any way deign to think for themselves.” The 2018 Kavanaugh hearings echoed this process, with the then-nominee accused of attempted rape in a widely-viewed public hearing. Although the Barrett hearings are unlikely to prove as sinister, it’s likely the Republicans will accuse the Democrats of finding any means possible to block a conservative justice, as was seen in the Clarence and Kavanaugh hearings.
Barrett is set to be ‘borked’. Her views have been well-documented over her career, and, most notably, Republican Senators seem confident she’ll vote to overturn Roe vs Wade, the 1973 ruling that protected a woman’s liberty to have an abortion without excessive government restriction. The Committee hearings process will likely rally each party’s base going into the election, but the long term implications on civil rights and the legitimacy of the Court have yet to be determined.
The Economist. “Courting trouble: The knife fight over Ruth Bader Ginsburg’s replacement.” (26 Sep 2020) https://www.economist.com/united-states/2020/09/26/the-knife-fight-over-ruth-bader-ginsburgs-replacement
The Economist. “What does Amy Coney Barrett think?” (26 Sep 2020) https://www.economist.com/united-states/2020/09/26/what-does-amy-coney-barrett-think
Levitsky, S. and Ziblatt, D. (2019) “How Democracies Die.” Great Britain: Penguin
Liptak, A. “Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right.,” New York Times (26 Sep 2020). https://www.nytimes.com/2020/09/26/us/amy-coney-barrett-views-abortion-health-care.html
Pruitt, S. “How Robert Bork’s Failed Nomination Led to a Changed Supreme Court,” History (28 Oct 2018). https://www.history.com/news/robert-bork-ronald-reagan-supreme-court-nominations
Siddiqui, S. “Kavanaugh hearing recalls Clarence Thomas case,” The Guardian, (27 Sep 2018). https://www.theguardian.com/us-news/2018/sep/27/brett-kavanaugh-clarence-thomas-anita-hill-hearings
Victor, D. “How a Supreme Court Justice Is (Usually) Appointed,” The New York Times, (26 Sep 2020). https://docs.google.com/document/d/1880187lYZ4z9gXjkVeNDsSsN8F0ZdRK1MIrua4CQmIk/edit