An editorial in the Las Vegas Review-Journal claimed Vice President Joe Biden is to blame for “bringing the [Supreme Court] nomination process to this partisan point” because of his role in opposing Ronald Reagan's 1987 nomination of the controversial judge Robert Bork. The paper neglected to mention any of the Republicans who also voted against Bork's nomination.
The March 10 editorial highlighted a piece by Commentary editor Jonathan Tobin claiming that Biden and other Democrats' opposition to Bork's nomination to the Supreme Court was an example of the then-senator flip-flopping on partisan grounds to block a qualified candidate. They went on to claim that Bork's rejection caused today's partisanship over Supreme Court nominations:
As Mr. Tobin points out, it was Mr. Biden who was arguably most responsible for bringing the nomination process to this partisan point in the first place -- and not because of his 1992 diatribe, but rather due to his efforts to squelch the nomination of Robert Bork in 1987, turning the name “Bork” into a verb in the process.
Judge Bork was nominated in July 1987 by President Ronald Reagan to replace the retiring Lewis Powell. Before the nomination, Biden had repeatedly said that, barring any qualification or ethics issues, he would have no problem confirming a conservative to the court, regardless of any criticism he received from liberal groups. But when those same groups protested the nomination of the conservative Mr. Bork, Sen. Biden -- then the head of the Judiciary Committee in a Senate that had just swung to the Democrats -- flip-flopped, joining Ted Kennedy and other Democrats in an unjustified smear campaign of Bork that blocked his nomination, ruined his name and, as Mr. Tobin contends, broke the court.
The Review-Journal presented a false comparison by claiming Biden's opposition to Bork's nomination equates to current Republican opposition to any potential nominee presented by President Obama.
The Senate followed constitutional procedure in considering Bork's nomination. Because of Bork's record of opposing civil rights laws surrounding race and gender, both Democrats and Republicans voted to block his appointment to the court. In fact, as MSNBC's Steve Benen pointed out, even Sen. Strom Thurmond “urged the Reagan White House to nominate someone less 'controversial,'” and Reagan's subsequent choice, Anthony Kennedy, was confirmed overwhelmingly:
When [Bork's] nomination reached the Senate floor, 58 senators, including six Republicans, voted to reject him. (After the vote, Strom Thurmond, of all people, urged the Reagan White House to nominate someone less “controversial.” ) The Republican president soon after nominated Anthony Kennedy, who was confirmed by the Democratic-led Senate, 97 to 0.
A little tidbit: more Republicans voted against Bork's nomination in 1987 than voted for Justice Elena Kagan's nomination in 2010. (Six Republicans opposed Bork; five Republicans supported Kagan.) It's the sort of thing that adds some context to the trajectory of GOP politics.
The current Republican vow to refuse even to consider any Obama nominee is very different than Biden and the Democrats' opposition of Bork's nomination in 1987, which received confirmation hearings and a subsequent vote. As Michael Gerhardt, a professor of constitutional law at the University of North Carolina, wrote for SCOTUSblog, Republicans' obstruction of any Obama Supreme Court nominee has no historical precedent, and the president's power to nominate a justice “does not cease to have effect at certain times, even during presidential elections” :
There is, in short, no historical support for the claim that the Senate has a tradition of shutting down the Supreme Court appointment process in presidential election years. The tradition is the opposite, for the Senate to consider Supreme Court nominations, no matter the timing, and actually to confirm nominees when they are moderate and well qualified.
The Constitution is not a suicide pact. It does not relieve our leaders of their powers and does not cease to have effect at certain times, even during presidential elections. President Abraham Lincoln made five Supreme Court nominations during the Civil War, Wilson made two during World War I, and Roosevelt made three during World War II. Hoover made three during the Great Depression.