Robert Bork's Legacy

Ever since the nomination for Robert Bork was blocked, thwarting nominations has become a standard tactic to frustrate a sitting president.

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Judge Robert Bork has died. But the tradition started by his failed 1987 nomination to the U.S. Supreme Court has sadly become entrenched.

Bork was a conservative hero and a threat to liberals. His nomination to the high court was thwarted not because of his intellectual fitness for the bench, but for his views and lower-court rulings on issues ranging from civil rights to abortion. In a famous address, the late Sen. Edward M. Kennedy warned of the specter of "Robert Bork's America," a world in which civil rights and women's rights were imperiled.

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Kennedy was not wrong in his assessment of Bork; nor was he wrong in opposing the nomination of a man who threatened to roll back hard-won advancements in social policy. The senator was criticized for politicizing a Supreme Court nomination, but the same charge could have been made against President Reagan for nominating someone with such a clearly conservative agenda. The trouble is that since then, an ideological witch-hunt has been imposed on a slew of nominees—even those for much less prestigious positions and nonlifetime appointments. The nomination of Donald Berwick, a widely respected physician and health policy maven, was stymied by Senate Republicans who said Berwick shouldn't head the Centers for Medicare and Medicaid Services because he believed in some version of socialized medicine. The evidence for that was sketchy, based on comments Berwick made praising Britain's National Health Service. In reality, conservatives just wanted to slow down the implementation of Obamacare while they fought it (unsuccessfully) in court.

Then there was Peter Diamond, who ultimately withdrew his nomination to the Federal Reserve amid threats of a filibuster by GOP Sen. Richard Shelby. Shelby expressed concerns that Diamond's economic background was not the right sort for the Fed. The Nobel Prize committee had disagreed, awarding Diamond its prize in Economics.

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Now, senators are sending subtle threats about putting a former colleague, Chuck Hagel, through the wringer if President Obama nominates him to be Defense Secretary. Hagel is a respected former Nebraska senator, a two-time Purple Heart winner, and was known as an expert on military affairs when he was in office. It's also a gesture of bipartisanship for Obama to consider someone from the other party to be in his cabinet. But to some lawmakers, Hagel has not been sufficiently toady-like in his allegiance to Israel—actually, his allegiance to the Israeli lobby. The fact that Hagel served his own country in Vietnam and in the Senate seems to have taken a back seat.

Bork may well have been a poor addition to the Supreme Court. But thwarting nominations for the sake of frustrating a sitting president in the other party is the worst legacy his nomination has left.

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