The best post-Scalia strategy: Bork unto others as they borked unto you

Within hours of Justice Antonin Scalia’s passing, political calculations began. A friend on the bench offered the appropriate word for it: unseemly.

Presidential campaigns quickly staked out ground. Senators declared their solemn constitutional duty either required them to act quickly or to refrain from acting, in accordance with tradition. Those who had disagreed with the late jurist were quick to relish the idea of putting someone who supports their policy positions on the court.

It was a comedy of errors, even though — like GQ’s “satire” asking the question, “Do we need Maine?”it wasn’t that funny.

Lost in all the machinations and Machiavellian schemes is a simple question: what makes a good Supreme Court Justice? Some have offered opinions that moderation is the appropriate virtue for the bench, cutting every baby in half to maintain an appearance of balance. Others claim the nominee must be “conservative” or “liberal,” using their authority to find ways to authorize favored policy positions.

But, as he often did, Antonin Scalia advanced one of the best answers to that question in a 2005 speech at Chapman University School of Law in California:

If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.

He nailed it. Rather than hyperventilating and demanding a nominee pass various litmus tests — Overturn Citizens United! Overturn Roe v. Wade! — we should look at their qualifications and their ability to reach decisions they do not like if such decisions are what the law requires.

For a long time, that is what America did. The Senate would look at a nominee’s qualifications — not his or her ideology — and offer a “yea” or “nay.” Indeed, Justice Scalia’s reputation preceded his nomination to the Supreme Court. Yet, in 1986, he was confirmed by a vote of 98-0. No one could offer a credible argument he was unqualified, therefore he was confirmed. What then changed?

BDN cartoon by George Danby.

BDN cartoon by George Danby.

Joe Biden. And Ted Kennedy. When President Reagan nominated Circuit Court Judge Robert Bork, the objective assessment of a nominee’s qualifications went out the window. No one could offer a straight-faced argument he was unqualified — he had been confirmed by the Senate without any objection only six years earlier. So instead, Kennedy took to the floor of the Senate and inveighed against his judicial philosophy with vicious, untrue invective. Biden, as chair of the Judiciary Committee, let it happen, even joining in the opposition. Biden was running for president at the time and opposing Bork was a cause celebre among the Democratic base.

Sound familiar?

The decision to pillory Bork is one of the major reasons fights over the judiciary have become politicized. Yet on occasion, like the blind squirrel, the Senate manages to pull itself out of the partisan cesspool and find objectivity. We saw this with President Bush’s nomination of Harriet Miers. While she may have been a woman of character, her qualifications were questioned by both sides and she ultimately withdrew.  

So how should we proceed with the replacement of Antonin Scalia? The GOP should abandon its adherence to the amorphous Senate tradition known as the “Thurmond Rule.” I’ve listened to too many Republicans complain about the perpetuation of the filibuster — if we are going to end certain Senate traditions, let’s end them.

But that does not mean the Senate majority should simply rubber-stamp the president’s nomination. They can emulate the example of then-Sens. Obama, Biden, and Clinton, who vigorously fought President Bush’s appointment of Justice Samuel Alito and opposed Justice John Roberts. Or follow now-Vice President Biden’s bare-knuckled approach to the nomination of Robert Bork. The Senate should vote, even if carrying out its duty means “borking” a nominee on grounds other than qualification.

“The other guy did it first” is poor justification in the schoolyard, but “do as I say, not as I do” is the height of hypocrisy. “An eye for an eye” is a definition of justice in the Bible or Hammurabi’s Code, not to mention a rational strategy in game theory. If Republicans do unto Obama’s nominee as was done unto Robert Bork, then everyone will have received their pound of flesh and we can restart the national consensus from a position of balance.

At that time — with both sides equally aggrieved — maybe Congress could return to our proud tradition of consistently considering a nominee’s qualifications, not their ideology. That includes their ability to come to decisions they do not like. A Supreme Court justice needs to be able to say a law is foolish, distasteful, wrong-headed, short-sighted, repugnant…and constitutional.

And they probably need to do so more often.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.