Rethinking the Alito Nomination

In January 2006, Senator John Kerry launched a doomed last-minute effort to filibuster Sam Alito’s Supreme Court nomination. He was blasted for needless grandstanding (which wasn’t a baseless charge – Kerry at the time was clearly running for President in ’08 and desperate to make friendly with the party’s grassroots), the filibuster was killed on a 72-25 vote, and Alito was confirmed shortly thereafter.

In the minority at the time, Democrats only had the votes to kill the nomination through a filibuster, and a main reason why there was so little enthusiasm for one was the assumption that if Alito went down, President Bush would just send up another conservative. He’s the duly elected President, it’s his call, elections have consequences, blah blah blah. (There was also fear of a public backlash, given polling results at the time.)

But, given the decisive shift to the right that Alito spurred by replacing Sandra Day O’Connor, it’s fair to ask whether Kerry’s point was legitimate.

The court is now comprised of four staunch conservatives (Roberts, Alito, Scalia, and Thomas), four staunch liberals (Breyer, Ginsburg, Stevens, and Souter) and one conservative with an independent streak (Anthony Kennedy). Kennedy is the new – and only – swing vote on the court. It was his fifth vote, for instance, that cleared the way for the court’s surprising decision to hear the appeals of two groups of Guantanamo detainees. It was his fifth vote last week that spared the execution of an insane man in Texas. And it is, potentially, his fifth vote that could allow race-conscious desegregation plans for public schools to continue in the future.

I bring this up because the way in which Kennedy landed on the court in 1988 is directly related to Alito’s own nomination last year to fill Sandra Day O’Connor’s seat.

When Lewis Powell announced his retirement in 1987, Ronald Reagan promptly nominated Robert Bork to replace him. The situation was fairly analogous to Alito’s selection – a judge embraced by the right nominated to replace someone who had been a moderate swing vote. But Bork, unlike Alito, came to his nomination with an explosive paper trail of controversial pronouncements on all sorts of hot-button issues. From the get-go, the left mobilized against him, while conservatives railed that it was the first time a Supreme Court nominee was being judged by his ideology, and not his competency.

The anti-Bork full court press succeeded, with public opinion turning against Bork, and Democrats – then in commanding control of the Senate – maintaining their unity when his nomination reached the floor. It was defeated, 58-42.

Forced to draw up Plan B, Reagan then nominated Douglas Ginsburg, but that promptly went up in smoke when Ginsburg admitted to regular marijuana as a law student and as a Harvard law professor in the 1960s and ‘70s. It was only then that the President turned to Kennedy, an Appeals Court judge for the Ninth Circuit, whose nomination was confirmed by the Senate on a 97-0 vote in early 1988.

Nearly 20 years later now, we know only too well what Bork’s record would have looked like. He would not be anything close to the swing vote that Kennedy has become, and the court would be even more dramatically tilted to the right.

But the only reason there is a Justice Kennedy and that there never was a Justice Bork was because Democrats drew a line in the sand, and forced a Republican President to come back to them (twice) with new nominees. Anthony Kennedy is not the Justice a Democratic President would have picked, but to the left – especially right now – he isn’t so bad.

Which brings me back to Alito’s nomination last year. Granted, his calm, soft-spoken manner made him much tougher to vilify than Bork ever was. But what if Democrats had stuck together – as they did with Bork – and held out for a second, or third nominee from President Bush? Would there be another Kennedy on the court right now?