In the summer of 1987, I led a team of young lawyers to oppose President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. Our work, which today would be called opposition research, found its way into the devastating confirmation hearing testimony of Erwin Griswold, the former Harvard Law School dean who had been Bork’s predecessor as solicitor general.
I do not claim that the work of my little team had any real impact on the Senate’s 58-to-42 vote rejecting Bork’s nomination. Griswold was only one in a parade of powerful anti-Bork witnesses, and Bork’s arrogance and tin ear for politics were his own worst enemies. As distasteful as the battle was, the end – the successful nomination of Anthony Kennedy after Bork’s defeat – seemed to justify the means.
Nevertheless, I regret my part in what I now regard as a terrible political mistake. While the nation did wind up with a much more acceptable choice, the treatment of Bork touched off a Thirty Years’ War on judicial appointments. We have politicized the judicial confirmation process far beyond historical norms and undermined public confidence in the judiciary. It’s time for a truce.
Judge Neil Gorsuch is superbly well-prepared and well-qualified to serve as an associate justice of the Supreme Court. There is no real dispute about that. Nevertheless, it seems that anti-Gorsuch forces are girding their loins for battle. “Poor Gorsuch,” they will say. “We’re going to do the best we can to defeat your nomination – but it’s not about you.”
Just what is it about, then?
The first answer is: “We don’t like the decisions we are afraid he will make.” Anyone with a basic understanding of how judges make decisions rejects that simplistic argument out of hand. Teams of young lawyers are certainly doing opposition research on Gorsuch today just as we did 30 years ago, but they have found nothing disqualifying yet and (I predict) will fail to do so.
Does his record support the label “extremist”? Certainly not. “Ideologue”? No. “Conservative”? Yes, of course – but elections do have consequences. Gorsuch has declined and will continue to decline to answer questions about how he would decide any issue that might come before him – not only because he is ethically bound to do so, but also because, until he reads the briefs and hears the arguments, he doesn’t know. Neither does anyone else.
Another common reason to oppose Gorsuch: “The Democratic base demands it.” That answer gives new meaning to the term “leading from behind.” It assumes that this “base” is a rabid, unthinking multitude of sans-culottes who must be obeyed. But the real base that Democrats need to find and cultivate is voters who can distinguish outrageous actions from responsible ones.
Democrats should want leadership from the front, not mindless obedience to those whose only position is opposition. Responsible leaders should be explaining the function of the third branch in the U.S. constitutional system, the importance of judicial independence and the danger of a politicized judiciary. A base that understands those things will support the prompt and uncomplicated confirmation of Gorsuch.
The final reason for opposition – and for many Democrats the most powerful one – is really schoolyard talk: “Because you did it to Merrick Garland.” Set aside for a moment the obvious retort from Republicans – that is, “We did it to Garland because we had the votes, and you don’t” – and consider instead where the argument goes from there. It goes on and on and on. We will struggle without end, each obstructionist act lacking any better reason than the most recent insult. This is the Hatfields and McCoys. The Jets and Sharks.
Are there no statesmen in politics today? No game theorists? It is true that Democrats would not receive many points for making a cooperative move that can be coerced anyway, but (as the Harry Reids and Mitch McConnells of this world love to remind one another) there will be another election, and what goes around comes around. A peace offering, plainly labeled as such, just might lead to something that is better for the country than mindless, vindictive tit for tat. What do the Democrats have to lose?
James Robertson is a retired U.S. district judge for the District of Columbia. He wrote this for The Washington Post.