The Night the Republican Party learned nasty.
Senator Joe Biden played a role.
“Saturday night massacre,” October 20, 1973: Solicitor General Robert Bork fires Watergate Special Prosecutor, Archibald Cox after Elliot Richardson and William Rucklehaus, previously ordered to fire Cox, quit.
In October 1987 President Reagan appointed Robert Bork to fill the seat vacated by Lewis Powell, Jr. who announced his retirement. Biden then 45, and a three term senator, voted along with 57 other Senators against Bork’s appointment. Republicans were furious about the humiliation Bork suffered during the committee hearings and the grilling for his role in the “Saturday Night Massacre.” He failed to get enough committee votes for recommendation for a full Senate vote. Despite the lack of a committee recommendation, Republicans insisted on a full Senate confirmation vote and Bork, the originalist darling of the conservatives and Reagan’s first Supreme Court appointment failed Senate approval a SECOND TIME. (42 for, 58 against).
Republicans vowed revenge on the Democrats for Bork’s dismissal despite the party leaders’ ineptitude at reading the political tea leaves. Reward the man who helped abort the Watergate investigation with a life-time appointment to the Supreme Court? Really?
Four years later upon the retirement of Thurgood Marshall, July 1, 1991, Clarence Thomas was appointed by President George W. Bush. Sen. Biden’s questioning and dismissal of Anita Hill who came forward with personal testimony of sexual harassment by Thomas helped mitigate misgivings about Thomas’ character thereby securing Thomas’ appointment.
In 2018 Justice Kennedy, whom Reagan appointed in 1987 after Douglas H. Ginsburg and Bork failed to be confirmed by the Senate, is replaced by Brett Kavanaugh. The so-called “Kennedy Court” due to Kennedy’s pivotal role in many landmark decisions also retired, yielding a 5–4 split between Republican leaning justices and Democrats on the Supreme Court.
For the first time in nearly 32 years, the Republicans felt vindicated for Bork’s public drubbing by Democrats. The Supreme Court technically speaking was now firmly in the conservative’s pocket. Amy Coney Barrett’s successful nomination in 2020 brought the conservative’s margin on the court to 6–3. Two iconic liberal-progressive justices — Thurgood Marshall and Ruth Bader Ginsburg — had been replaced by two staunch conservative originalists, Thomas and Coney Barrett.
Fast forward to December, 2020 and a President-elect launching “justice reform” as one of the new administration’s four pillars. Where does the present composure of the Supreme Court reside?
Myth 1: A Supreme Court appointment is a judicial, not a political appointment, because rendering judicial decisions is apolitical.
Reality check: If the President can appoint Supreme Court justices to fill vacancies, and the President is de facto head of his or her party, then a Supreme Court appointment, particularly with a majority party in the Senate, most certainly is a political appointment.
Myth 2: Adding to the 9 Supreme Court Justices is “packing the court.”
Reality Check: As the previous mini-Supreme-Court-appointment-history shows, the Supreme Court IS packed with conservative leaning justices. Consider increasing the number of Justices on the Supreme Court. Consider increasing number of justices from 9 to 13 or more. Consider introducing judicial terms.
As some Supreme Court watchers have lamented, the intellectual calibre of the Court has declined. Imagine: Arthur Kennedy replaced by Brett Kavanaugh: Thurgood Marshall by Clarence Thomas, Ruth Bader Ginsburg by Amy Coney Barrett. If this is where the Supreme Court is going, isn’t a 13-or-more-justice Supreme Court a step in the right direction?
Myth 3: Biden is interested in altering the Supreme Court and has leverage because he knows how to work with Republicans on the Hill.
Reality check: Biden doesn’t know many Republican Senators: most have died or retired. Biden was 28 when he defeated J. Caleb Boggs in 1972 and was 29 when he was sworn in on January 1, 1973. Biden has not been a Senator since 2009, and has been out of government since 2016.
Myth 4: Biden can work with Mitch McConnell.
Reality check: So Joe Biden knows Mitch McConnell? So what? Recall Merrick Garland’s “hostagery.” No leverage here, particularly if McConnell retains his position as Senate Majority Chair. Trump’s leaving creates a leadership void in the Republican Party, a void McConnell is aching to fill. And McConnell, unlike Trump, is not asking the Party to shoulder his legal debt. Compromising is not on McConnell’s agenda and so far he is not showing any comity towards the President-elect.
Call this the “after-life of nasty.”