Accuracy in Media

Washington Post deputy editorial page director Ruth Marcus is betting that President Trump’s Supreme Court justice nominee deserves the Robert Bork treatment, even though she doesn’t know who it will be.

Marcus reminded readers that after liberals managed to shoot down the very conservative Bork nomination, the more moderate Anthony Kennedy was selected as his replacement. He has given liberals some key victories over the years.

From my vantage point — and I covered the Bork confirmation — it was a fight worth waging with all necessary ferocity. A Justice Bork would have been a disaster; his writings illustrated how intensely he disagreed with, and would be inclined to jettison, decades of precedent.

Bork’s defeat produced, eventually, Kennedy, and with him, three decades of unpredictable, sometimes infuriating decision-making that nonetheless kept the court on a steady course. The right to abortion was restricted, but the fundamental protection remained in place. So, too, with affirmative action. Meantime, Kennedy steered the court, and the country, to a nobler place on the rights of gay and lesbian Americans.

Which is why, notwithstanding this final, disappointing term, his departure is so alarming. And why this must be another Bork moment — insisting on a nominee who is, to invoke the language of the Bork debate, within the broad mainstream of judicial thought.

Even though she advocates for a court that doesn’t tilt too much one way or the other, she thinks that scuttling Merrick Garland’s nomination was wrong despite that he would have replaced the very conservative Antonin Scalia and given liberals a solid majority on the court.

And one who, like swapping Kennedy for Powell, will not radically alter the balance of the court. A nominee should be considered on his or her merits, primarily, but it is politically naive and, I think, substantively mistaken not to take into account the impact of that nominee’s views on the overall balance of the institution.

The court functions best — it tends to produce better-reasoned opinions, more acceptable to the public — when it does not tilt too decidedly in either direction. If regular order had been followed, Justice Merrick Garland would be sitting on the court, occupying a centrist role; his shameful absence offers another argument for insisting that Kennedy’s replacement display some of Kennedy’s qualities of moderation.

This is what Marcus had to say in 2016 about Senate Majority Leader Mitch McConnell’s announcement that the Senate wouldn’t take up any nominee due to it being a presidential election year.

Note to Republican senators: Have you guys read the polls? Do you really think that if Donald Trump is your nominee, as is looking increasingly likely, he will beat Hillary Clinton? Do you think you’re going to like President Clinton’s Supreme Court pick any better?

And having staked your anti-confirmation case on the argument that the voters should have their say on replacing Justice Antonin Scalia, haven’t you backed yourself into a difficult corner if and when it comes to weighing that Clinton nominee?

What Clinton nominee was that?

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