Is Sotomayor About To Get Borked?

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It’s has become customary for Republicans to use the Senate’s 1987 rejection of Robert Bork to justify their own hyper-partisan brand of Supreme Court politics. Bork, by all accounts a qualified, ethical judge, but way too conservative even by Republican standards. And now I find it very humorous that Republicans, with their skimpy 40 votes, think that they will actually be able to kill Sonia Sotomayor’s Supreme Court nomination. And, for all their frothing over her supposed “racism,” it remains puzzling why they’d even want to try: her nomination is widely popular with the public and, all things considered, she’s probably more moderate than other candidates Barack Obama could have gone with.

At first glance, the right’s hysterical response to Sotomayor’s selection is merely a continuation of the game that both parties began playing 22 years ago. But it really isn’t. The Bork battle was actually followed by a period of relatively tranquil nominations, with the parties reverting to their less polarized, pre-1987 postures. For example, after Bork’s defeat (and after his replacement, Douglas Ginsburg, withdrew amid revelations of youthful marijuana use), the Senate in February 1988 approved Anthony Kennedy’s nomination on a 97-0 vote. Just over two years later, amid furious protests from abortion-rights supporters who branded him a “stealth” nominee,” David Souter was approved on a 90-9 vote.

That margin is particularly noteworthy since Souter was chosen by an ostensibly pro-life president, George H.W. Bush, to replace William Brennan, a key court supporter of the Roe v. Wade decision. Bush swore that he hadn’t quizzed Souter on abortion during the selection process, but, realistically speaking, there was every reason to believe that Souter would be a new, and potentially decisive, anti-Roe vote on the court. And yet the vast majority of Democrats voted for him anyway. Yes, it’s true that Souter, once on the court, quickly proved himself to be a liberal—and a key vote for Roe. But no Democrat knew or expected that in October ’90. And Republicans showed the same restraint when Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer in 1993 and 1994, respectively.

And now, from the G.O.P.’s standpoint, it’s payback time. They are just as hopeless to stop Sotomayor as the Democrats were to derail Alito. But after that experience, they’re in no mood to roll over.