Read: How conservatives really feel about Amy Coney Barrett
It was an extraordinary moment, not because of the senators’ indignation, but because of their lament. Nearly all of the legislators on the Senate Judiciary Committee seemed to recognize that something has been lost as Supreme Court confirmations have turned into full-blown partisan battles. “The rule of ‘Because we can,’ which is the rule that is being applied today, is one that leads away from a lot of the traditions and comities and values that the Senate has long embodied,” said Senator Sheldon Whitehouse of Rhode Island, a Democrat. Many of the norms that keep American democracy functioning are under threat. Senators like to pretend theirs is still a body of statesmen. But looking around at one another today, America’s most elite legislators seemed to realize that the conventions of American democracy are eroding, and they are responsible for urging it along.
How, and when, did things get this bad? Answers tend to start in different places, depending on who’s narrating. Many conservatives would point to Robert Bork, a conservative legal scholar who played a starring role in President Richard Nixon’s Watergate scandal and whom President Ronald Reagan nominated to the Supreme Court in 1987. The Senate rejected Bork by a vote of 58 to 42 after Democrats alleged, over Bork’s vociferous denial, that the judge wanted to take the country back to the days of segregation and back-alley abortions. Thirty years might seem like a long time to nurse a grudge, but some of the starring characters in that affair, including then-Senator Joe Biden, remain at the center of American politics today. “His name has become a verb: the ‘Borking’ of nominees,” said the Republican Senator Josh Hawley, who was 7 years old when Bork was nominated, this week. “I think what we’ve seen here today is an attempted Borking of Judge Amy Barrett.”
Read: The irony at the heart of the Amy Coney Barrett fight
Senator Lindsey Graham of South Carolina recalled talking with Chuck Schumer one night in 2013, begging the New York Democrat not to eliminate the 60-vote threshold for closing debate on judicial candidates—a bar that ostensibly forced the Senate to reach bipartisan consensus, but also enabled Republicans to obstruct President Barack Obama’s nominees. “That set in motion a lot of things that have taken the Senate in the wrong direction,” Graham said today. And many Republican senators still clearly believe that Christine Blasey Ford’s sexual-assault allegations against Judge Brett Kavanaugh when he was a nominee for the Supreme Court in 2018 were the ultimate dirty trick. “It was a freak show!” said Senator John Kennedy of Louisiana during his opening statement on Monday. “It looked like the cantina bar scene out of Star Wars.” Graham pointed out that he voted in good faith for Obama’s two successful Supreme Court nominees, Elena Kagan and Sonia Sotomayor, even though he knew they would vote in ways he disagreed with, because he believed they were qualified. But “it’s kind of silly to play a game nobody else is playing,” he said. After what happened to Kavanaugh, he added, “I’m not going to sit on the sidelines and watch one of our nominees be destroyed after showing respect for two Democratic nominees. That is not right, and I’m not going to do that.”