The Case for Borking

By Kennedy, Randall | The American Prospect, July 2, 2001 | Go to article overview

The Case for Borking


Kennedy, Randall, The American Prospect


As the battle over the federal judiciary heats up, progressives must convince the general public of a basic proposition: The judiciary is an inescapably political branch of government whose agents, the judges, should be viewed in much the same way other politicians are.

To say that the courts are political may seem so obvious as to be banal. There is, however, a deep and widespread impulse to deny the political character of the courts. An important manifestation of this denial arises in the context of selecting, confirming, or rejecting candidates for the federal bench. Many people bemoan, for example, what they term the "politicization" of the judiciary (as if there existed a golden age when judicial selection and judicial decision making were uncontaminated by politics). Liberals and conservatives, Democrats and Republicans have taken turns accusing each other of indulging in this unpardonable sin.

Progressives, however, should get off that unproductive rhetorical merry-go-round, accept the ineradicable presence of politics in the judicial arena, and strive to shape the judiciary in such a way that it will produce good, sound, progressive rulings. That will entail, among other things, lobbying on behalf of jurists who will advance the progressive agenda and against those who will be hostile to it.

Article II of the U.S. Constitution empowers the president exclusively to nominate federal judges, while it imposes a check on presidential authority by making the seating of a nominee dependent on the Senate's "Advice and Consent." Whereas the president is armed with veto power over legislation, the Senate, in effect, has veto power over judicial nominations.

Over the course of the nation's history, the Senate has exercised that power over Supreme Court nominees 29 times (and over district and appeals court nominees many times more). In addition to objecting to nominees on grounds of incompetence, dishonesty, or some other personal failing, senators have also voted nay for political or ideological reasons. Opponents blocked George Washington's Supreme Court nominee Judge John Rutledge because of Rutledge's opposition to the Jay Treaty (despite the fact that the Senate had already confirmed him for a previous opening on the Court and that he had just served for an entire Supreme Court term as the interim chief justice). Ulysses S. Grant's nominee Attorney General Ebeneezer Rockwood Hoar was not confirmed because he had opposed President Andrew Johnson's impeachment. Herbert Hoover's nominee Judge John Parker was blocked because of Parker's perceived hostility to organized labor and the advancement of African Americans. And Ronald Reagan's nominee Judge Robert Bork didn't make it because opponents feared, among other things, that he would energetically attack abortion rights.

In principle there is nothing wrong with political blocking, even if doing so stems entirely from one particular issue. Would we now condemn a senator who, prior to the Civil War, voted against a nominee solely on the grounds that the candidate favored slavery? …

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