In each case, it is worth looking at exactly what we are talking about. Politicians’ summaries, after all, are subject to manipulation and oversimplification. And in some of those cases, Republicans were among those backing the ballot.
Estrada and Brown figured prominently, largely because of the parallels with Jackson. Both were President George W. Bush’s nominees for what is known as the nation’s second highest court, the DC Circuit Court of Appeals – the court Jackson was confirmed to last year. Both were considered potential future Supreme Court picks — just like Jackson was at the time. Democrats strongly rebuffed both nominations.
“If this process were conducted in good faith, Miguel Estrada and Janice Rogers Brown could well be on the Supreme Court today,” Sen. Ben Sasse (R-Neb.) said Monday. “But their opponents lied and bullied, rather than accept minority judges on principle.”
Sen. Ted Cruz (R-Tex.) referenced a contemporary Democratic email during Estrada’s process that said their camp should fight Estrada’s confirmation “because…he’s Latino.” While the quote was certainly objectionable, Cruz stripped it of context; the fuller quote references Estrada’s legacy, making him more formidable as a potential future Supreme Court nominee.
The Democrats’ public backlash against Estrada at the time was entirely focused on something else, of course: his record — or lack thereof. They accused him of being too extreme and noted that he had not been a judge or an academic, leaving less of a paper trail. It was also the first time an appeals court judge had successfully filibustered: Democrats halted Estrada’s nomination in a string of closing votes, even as four of them voted to go ahead. He eventually withdrew.
On Brown, the argument was again that she was too extreme. And although his appointment was delayed for two years, it was finally confirmed in 2005 under a deal brokered by the so-called “Gang of 14”. At the time, Charles Babington of the Post wrote of the pushback against Brown:
Opponents have focused on Brown’s scathing criticism of government programs, including those designed to help low-income Americans. She once called a landmark 1937 court ruling authorizing federal regulation of working conditions a “triumph of our own socialist revolution.” She wrote that “where government moves in, community moves out, and civil society disintegrates…The result is a degraded, debauched culture that finds moral depravity entertaining and virtue despicable.” In a speech, she said: “If we can invoke no ultimate limit on the power of government, a democracy inevitably turns into a kleptocracy – a license to steal, a mandate to oppress.
Several Democrats noted that in a dissenting opinion in California, Brown wrote, “We can’t just cover ourselves with the doctrine of stare decisis,” a Latin term for the principle that courts must follow previous decisions. “She is the epitome of a militant judge”, [then-Senate minority leader Harry] Reid said, nudging conservatives who have long decried “judicial activism.” Brown “is a judge; she’s not a legislator,” Reid [(D-Nev.)] noted. “She has no right to do the things she does.”
Brown was considered a potential Supreme Court pick, but was passed over.
Bork is one of the most often cited examples of Democrats supposedly going too far. His Supreme Court nomination was rejected in 1987 after Democrats pilloried him as an extremist.
“We started down this libel path in the 1980s with the Judge Bork hearings, and senators have been engaging in disgusting stagecraft ever since,” Sasse said. Cruz added, “It’s just one side of the aisle, the Democratic aisle, that went so far into the gutter with Judge Robert Bork that they invented a new verb, ‘Bork’ somebody .”
At the time, perhaps Bork’s most exaggerated assessment came from Sen. Ted Kennedy (D-Mass.), who said, “Robert Bork’s America is a land in which women would be coerced into clandestine abortions, blacks would sit at separate lunch counters, [and] rogue police could kick down citizens’ doors in nighttime raids,” among other charges. Bork would later reflect, “There wasn’t a line in that speech that was accurate.” When Kennedy died in 2009, The Economist wrote that Bork “was right. But it worked.”
While Bork’s defeat was orchestrated by the Democrats, it should be noted that six Republicans also voted against him. Sen. John Warner (R-Va.), for his part, concluded that Bork lacked “the record of compassion, sensitivity, understanding of the pleas of the people to allow him to sit on the highest court in the land.” . He said the file was incomplete “as to the character of this man, the volatility of his previous career”. So, to the extent that Bork received unfair scrutiny, a sizable number of Republicans agreed that he was unfit.
Thomas was the last African American to be nominated to the Supreme Court, and his hearings quickly turned into chaos following Anita Hill’s sexual misconduct allegations. Republicans quickly rallied around Thomas and offered all sorts of explanations for Hill’s allegation, including that she was delusional and suffered from “erotomania”, and that she could have based her story on previous writings. . While Republicans cried foul over Thomas’ treatment, some liberals also criticized President Biden – who was then chairman of the Judiciary Committee – for allowing the show to go on the way it did.
The Kavanaugh auditions were, in some ways, a replay of Thomas, except this time in the context of the #MeToo movement. Cruz said Monday it was “one of the lowest moments in the history of this committee.”
But when Ford’s allegation surfaced, several Republicans called them worthy of scrutiny, including Cruz. “These allegations are serious and deserve to be treated with respect,” Cruz said. “The allegations presented to the Senate Judiciary Committee last week are serious,” said Sen. James Lankford (R-Okla.). Sensible moderates Jeff Flake (R-Arizona), Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) ultimately withheld a vote on Kavanaugh so the FBI could conduct an examination, after which the three ended up vote for him.
Of course, just because Republicans agreed the allegations were serious doesn’t mean they endorsed the Democrats’ handling of them. Sen. Charles E. Grassley (R-Iowa) finally concluded, “The revelation of last-minute allegations tested the committee in many ways. But these investigative efforts rose to the occasion and were essential in helping us get to the truth.
A final nomination Republicans highlighted on Monday and Tuesday was Barrett’s in 2020. Sen. Marsha Blackburn (R-Tenn.) referenced “Judge Barrett, who was asked about her faith and whether it made her fit at the court. Graham also alluded to it, telling Jackson on Monday that “there will be no question about where you go to church, what type of group you belong to, how you decide to raising your children, on what you believe in, how you believe in God.”
On Tuesday, however, Graham did indeed ask Jackson about his faith and strength – “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?” — as part of Barrett’s alleged mistreatment.
Barrett’s scrutiny actually stemmed not from his Supreme Court hearing, but from his previous appeals court hearing in 2017 — and Democrats backed it down significantly in 2020. In 2017, some had expressed concerns about how Barrett’s devout Catholicism would inform his judgments, with Senator Dianne Feinstein (D-California) sadly telling Barrett that “dogma lives loudly within you, and it’s concerning…”
As we wrote in 2020, however, despite repeated attempts by the GOP to raise this issue during Barrett’s hearings, Democrats have actually done very little to exploit it:
In fact, the words “religion,” “Catholic,” “Christian” and “faith” were mentioned in connection with religious matters about 80 times during two days of Q&A sessions with Barrett. Republicans and Barrett represented 75 of them; Democrats, only five.
Among the few times Democrats have invoked faith, they have praised Barrett for hers or sought to shield themselves from the perception that they might raise her as an issue.
The Democrats’ decision to relax may have been a tacit acknowledgment that they had gone too far last time, but there was a noticeable course correction when the stage was bigger.