The Bork/Kennedy Precedent: Meeting in the Middle. But Is That Possible Anymore?

In 1987, the United States had a conservative President, Ronald Reagan, and a liberal majority Senate. President Reagan nominated extreme conservative D.C. Circuit Court Judge Robert Bork to be an Associate Justice of the Supreme Court. Judge Bork was properly rejected by the Senate. I say "properly" not principally because I disagree with Judge Bork's judicial ideology, but because, in our constitutional system, Supreme Court Justices are nominated by the President subject to the advice and consent of the Senate. So what should the role of the Senate be when there is a huge ideological divide between the President and the Senate?

The Bork fight could have set a very good precedent: That when there is such a divide, the President should nominate, and the Senate should confirm, a qualified person whose judicial philosophy is somewhere in the middle. The appointment of Ninth Circuit Court Judge Anthony Kennedy to that seat met that standard.

This approach could have been confirmed and given precedential impact in 1991, when Justice Thurgood Marshall died. President George H.W. Bush nominated D.C. Circuit Court Judge Clarence Thomas, someone who was just as conservative as Judge Bork. And, as in 1987, Democrats controlled the Senate. But rather than focus on Thomas's judicial philosophy, too many Democrats got side-tracked by the Anita Hill scandal allegations. Lost in the sturm und drang of that controversy, the Democrats lost sight of the best lesson of the Bork battle: the desirability of meeting in the middle. And Thomas was confirmed by a close vote. (Note that the Democrats did not engage in a filibuster.)

Now we are faced with a situation that is the mirror image of 1987. We have a liberal Democratic President and a conservative majority Republican Senate. But rather than insist that President Obama send a middle of the road nominee, the Republicans refuse to consider anyone nominated by Obama. On one level, this is just another Republican rejection of Obama's legitimacy as President -- even though he received 66 million votes (a clear majority) in 2012, while Republican congressional candidates received only 40 million in 2014. 

As an institutional process matter, the Senate should give any presidential nominee to the Supreme Court a hearing and then an up or down vote. If there are not enough votes to confirm, so be it. If it takes a couple of nominees, so be it. 

Sadly, however, there no longer appears to be any middle ground in Supreme Court judicial politics. So an Anthony Kennedy-type compromise seems impossible. But the Republicans, to their discredit, do not even want to try. 

Here is another aspect of the current controversy that should be explored. Someone should ask Republican Senate Majority Leader Mitch McConnell the following question: Suppose Hillary Clinton is elected President this November, but the Republicans hold on to the Senate. Or the Democrats regain the Senate, but do not have a filibuster-proof majority. Would Senator McConnell continue to advocate obstruction of the Democratic President's nominee?  Would the Court then limp along with 8 members?  And what would happen if there were another vacancy?  Or several vacancies?

We have a pretty sound Constitution, but it is not idiot-proof.