10-23-73 The Genesis of Today’s Supreme Court Nomination Fight

With news yesterday (July 9, 2018) that President Donald Trump had nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court all hell broke loose.

Democrats held rallies outside the Supreme Court building and elsewhere in the country decrying the choice and vowing to give it “the fight of our lives” to stop Kavanaugh’s confirmation. Senator Richard Durbin even said on one of the Sunday TV News talk shows that sitting Senators ought to be willing to sacrifice their re-election in this year’s mid-terms in order to stop another Republican President’s nomination to the highest court in the land.

All this tumult might have some wondering, why is it like this? And, has it always been this way? There is no question the political divide in this country is wide and virulent. Democrats HATE President Trump and everything he says and does. And by extension they hate Republicans and all that they stand for. Many Republicans hate Democrats…but mostly, I think, they feel sorry for them. And I have to admit many Conservatives just think of Liberal Democrats as stupid. Prior to Trump the President Democrats loved to hate the most was Richard Nixon, whose responsible for today’s mess.

However, while we’ve always had political divides in this country and at times they’ve been extreme…just see the 60s…both the 18 and 19…60s…the process of nominating and confirming a Supreme Court Justice used to be done rather quietly and respectfully. It changed because of what happened on October 20, 1973. 

For those not old enough, educated enough, or interested enough, October 20, 1973 is an historic date and one of the darkest days (nights) in United States history. It would become known as “The Saturday Night Massacre”That was the night that our Constitutional Government was walking on the edge of a sword and nearly collapsed. It was the night President Richard Nixon tried to save his ass from impeachment and possible criminal prosecution by having Special Prosecutor Archibald Cox fired for continuing to look into Watergate.

So, you ask, what does Watergate and the Saturday Night Massacre have to do with today’s Cat and Dog fight over a Supreme Court nomination. It changed everything and established an excuse for the political retribution that continues to this day.

You see, Nixon knew he was guilty as hell of covering up his association with the Watergate burglars and for 1 year had been slowly squeezed into a position where that guilt would inevitably be revealed. He knew Cox was a no-nonsense investigator who eventually would find out Nixon’s culpability. So Nixon did what he thought he could get away with. He ordered Attorney General Elliott Richardson to fire Cox. Richardson refused. And quit on the spot. Not deterred, Nixon then asked the Deputy Attorney General William Ruckelshaus to do the dirty deed. Ruckelshaus, likewise, refused and resigned.

With the top two administrators of the Department of Justice now defying the President and out of jobs…the third person on the tree of authority in the DOJ was the Solicitor General. At that time that person was Robert H. Bork. Bork felt it was within the President’s authority to fire Cox. So he carried out Nixon’s order and gave Cox the ax. It was also rumored that Nixon promised Bork a Supreme Court nomination if he would carry out his order.

Well, as history tells us Nixon resigned from office the following August and that rumored Supreme Court nomination for Bork never came. That is…it never came from Nixon. Fast forward 14 years to July 1987. President Ronald Reagan tabs Bork for the high court. That’s when all hell broke loose for the first time…in a Supreme Court nomination fight…that is.

Democrats had a looooong memory. Like an elephant (as opposed to a jack-ass) they remember that Bork was the one who executed Nixon’s order to try to end the Watergate investigation. They hated Nixon. And for Bork to acquiesce to Nixon’s order made Bork public enemy number 1. Add to that the rumor that Bork was promised a Supreme Court nomination and Democrats were all fired up to stop him.

It mattered not that Bork was thought to have an extraordinary legal mind, and before and since the Saturday Night Massacre had established an overwhelmingly credible resume. This was about political retribution. Bork lost his confirmation in the Democrat controlled Senate 42-58. And in so doing a precedent was set. Through political vendettas, scorched earth, character assassination and political pressure Supreme Court nominees of a President could be stopped by the opposing party.

Democrats tried it again 4 years later when George H.W. Bush nominated Clarence Thomas. The Anita Hill sexual harassment charges dominating the process. But Thomas’ 52-48 confirmation vote was the closest in over 100 years. And the vote was strictly along party lines. Though it is worth noting that 11 Democrats voted in favor of confirmation. Only 2 Republicans voted against.

113 men and woman have sat on the Supreme Court. Only 12 have been nominated and rejected by the Senate. None since Bork. Others have been nominated and then withdrawn…in some cases due to a presumed Senate rejection. But none created the political fire that Bork created or established the precedent we all suffer through today.

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