Sorry Right-Wing Media, The Bork Comparison Doesn't Fit The Scalia Story

Blog ››› ››› ERIC BOEHLERT

Faced with the radical Republican proposal that President Obama abstain from filling Justice Antonin Scalia's vacancy on the Supreme Court, conservative commentators have been put in a difficult position of arguing the proposal isn't that unusual, even though what Republicans are demanding has never been done before in American history.

So how do you pretend that something unprecedented is really rather common? Apparently you grab a bunch of apples and oranges and start treating them as the same.

Specifically, more and more conservatives have decided that the current, Republican-made court controversy is like the time Judge Robert Bork was nominated for the Supreme Court by President Ronald Reagan, only to have the U.S. Senate vote down the confirmation.

"Democrats have been blowing up the appointment process piecemeal since they turned Judge Robert Bork's last name into a verb back in 1987," wrote Jonah Goldberg in the Los Angeles Times, in a column about the fight over replacing Scalia.

"Look at what the Democrats have done in poisoning the well, particularly on judicial nominations, stretching back to 1987 and the character assassination against Robert Bork," complained Townhall political editor Guy Benson on Fox News.

Bork's confirmation battle was indeed unusually partisan, contentious, and left political scars that some Republicans are still nursing. (Being "Borked" became a verb in conservative circles.) But there's nothing remotely similar to the Bork nomination battle and the current obstructionist crisis over Scalia's death. The Bork battle revolved around a specific jurist. The Scalia battle revolves around the idea that the entire nominating process be shelved for at least a year.

Distressingly, it's not just the right-wing media playing this game by conflating objection to a specific court nominee with the GOP's current objection to putting forward any nominee. On CBS This Morning, reporter Jan Crawford falsely accused Hillary Clinton of hypocrisy because she has criticized Republican obstructionism on filling the Scalia vacancy despite having voted against Samuel Alito's Supreme Court nomination when she was a senator.

Of course those are two entirely separate circumstances. It's self-evident: Voting no on a Supreme Court nominee after full, public hearings is not the same thing as preemptively deciding to block any potential nominee.

Yet the comparisons roll on. "In 2016, it's the Republican Senate that's threatening to Bork whoever President Obama wants. And they have every right to do so," wrote Tim Stanley in The Telegraph.

"All of a sudden they think immediately approving Supreme Court nominations is some kind of solemn duty of the Senate? Where were these 'dishonoring the Constitution' lectures back when Democrats were dragging Robert Bork and Clarence Thomas into the town square and assassinating their character in front of the jeering hordes?" demanded Matt Walsh at The Blaze.

Note how Walsh snuck in the idea that Democrats today are upset about Republicans not "immediately approving" Obama's next court nominee. Wrong. Democrats are upset Republicans won't acknowledge Obama's right to nominate anybody for the Supreme Court, a truly radical notion.

Also trying to play the game of gotcha, Breitbart News looked back at the Bork controversy and announced, "It's useful to remember that one member of the Obama administration -- Vice President Joe Biden -- once had a very different opinion on the Senate's ability to block a president's nominee at all costs."

More apples and oranges. Democrats never told Reagan don't send Congress a Supreme Court nominee because he or she won't be considered. Obviously, Democrats did consider the Bork nomination; he received an up-or-down vote.

Yet the stubborn claim lives on that what Democrats did to Bork is just like the Republicans' planned approach to any Scalia replacement.

And just how extreme was Bork's record? As NPR reported [emphasis added]:

He wrote an article opposing the 1964 civil rights law that required hotels, restaurants and other businesses to serve people of all races.

He opposed a 1965 Supreme Court decision that struck down a state law banning contraceptives for married couples. There is no right to privacy in the Constitution, Bork said.

And he opposed Supreme Court decisions on gender equality, too.

Meanwhile, as angry conservatives point to the Bork defeat as an example of partisanship run amok during the nominating process, it's important to note that six Republican senators crossed the aisle and voted against Bork's nomination. Among the six was Sen. John Warner (R-VA), who the New York Times described at the time as being "almost unfailingly loyal" to the Reagan White House

In the end though, Warner announced: ''I searched the record. I looked at this distinguished jurist, and I cannot find in him the record of compassion, of sensitivity and understanding of the pleas of the people to enable him to sit on the highest Court of the land.''

That's how far out of the mainstream Bork was as a jurist.

If conservatives can put forward a common sense argument why Obama should ignore his constitutional obligation to replace Scalia on the Supreme Court, they ought to detail that argument. Because pretending today's crisis is just like the Bork battle only highlights the holes in the GOP proposal.

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