For the last 30 years, Republican nominations for the Supreme Court have faced personal, ugly, defamatory attacks from Democrats.
We’ve been hearing a lot from Democrats and the media this week about how President Trump and Senate Republicans are “violating norms” with their plans to nominate and confirm a Supreme Court justice before the November election. Of course, the clear historical norm in this situation is for a sitting president to nominate and, if his party controls the Senate, for the Senate to confirm a new justice — even in an election year.
The norm Republicans are following isn’t the one that should concern us — it’s Democrats’ long-established norm of character assassination, outright lies, and ugly, personal attacks against any Republican nominee to the Supreme Court.
Every time a Republican president has nominated someone to the Supreme Court in the last 30 years, with one notable exception, Democrats have responded by smearing the nominee with accusations of ideological extremism, racism, misogyny, sexual harassment, plagiarism, and, most infamously in Justice Brett Kavanaugh’s case, gang rape.
The Kavanaugh confirmation hearings stand out not just because they were the most recent but because they were such an ugly and outlandish spectacle. Democrats, aided by a media establishment that gladly discarded all professional standards, tried to paint Kavanaugh, an eminently qualified jurist and a decent man, as the leader of a gang rape squad. His confirmation hearings in 2018 were a fiasco and marked a new low for Democrats on the Senate Judiciary Committee.
Democrats Have Been Doing This For 30 Years
But the Kavanaugh hearings were not a break with the Democrats’ norms, they were merely an extreme manifestation of a 30-year tradition that began with Robert Bork, President Reagan’s nominee in 1987, whose confirmation hearing was the most divisive and partisan in Supreme Court history up to that point. Bork, a federal appellate judge who was unfairly maligned as an extremist who would roll back civil rights legislation, was ultimately rejected by the Senate — an outcome that must have convinced Senate Democrats they could kill any GOP nomination they didn’t like by relentlessly denigrating the nominee on the national stage.
It didn’t take them long to test the theory. The 1991 confirmation hearings for Justice Clarence Thomas were even more shameful for Democrats than Bork’s had been. A former staffer, Anita Hill, accused Thomas of sexual harassment.
But Hill hadn’t a shred of evidence and no one, out of the dozens of subordinates who had worked for Thomas during his tenure in government, could corroborate her descriptions of Thomas’ behavior. No one who had ever worked with both Hill and Thomas would vouch for her. The FBI even looked into her claims but found no evidence to support the accusations.
No matter. Joe Biden, who was chair of the Senate Judiciary Committee then, infamously turned the hearings into a hyper-politicized exercise in character assassination. In the end, Thomas was confirmed in a narrow, largely partisan vote— but not before Biden and the Democrats relentlessly dragged his name through the mud.
Democrats’ appalling treatment of Bork, Thomas, and Kavanaugh are well known. Less well-known is their appalling treatment of every other nominee chosen by a Republican president since then. Let’s go down the line.
Chief Justice John Roberts
In 2005, President George W. Bush nominated John Roberts to fill the vacancy left by the death of Chief Justice William Rehnquist. During the confirmation hearings, Democratic Sen. Dianne Feinstein asked Roberts, who is Catholic, what “role Catholicism would play” in his tenure as a judge, and his views on the separation of church and state. As an example of religious persecution, she cited Jews who were killed in Budapest during the Holocaust, saying it “occurred in the name of religion.”
Her comments were widely seen as anti-Catholic, and rightly so. The Catholic League called on Feinstein to apologize, and its president said in a statement, “At the time of the Holocaust, 67 percent of Hungary was Catholic, so we know who Senator Feinstein was blaming.”
Even more shocking than Feinstein’s anti-Christian bigotry was the media’s treatment of Roberts and his family. The New York Times faced intense backlash when the Drudge Report revealed that the Times had been attempting to unseal the adoption records of Roberts’ two young children, whom Roberts and his wife had adopted as infants from Latin America five years earlier. The National Council for Adoption condemned the Times, saying the “adoption community is outraged that, for obviously political reasons, the Times has targeted the very private circumstances, motivations, and processes by which the Roberts became parents.”
Not to be outdone, NARAL Pro-Choice America released, then quickly pulled, an ad falsely accusing Roberts of filing court briefs in support of abortion clinic bomber Eric Rudolph. The brief in question, however, was written seven years before the 1998 clinic bombing featured in the ad and dealt with whether abortion protesters obstructing access to a clinic could be prosecuted for discrimination under the 1871 Federal Ku Klux Klan Act. That didn’t stop NARAL from slandering Roberts as “a justice whose ideology leads him to excuse violence against other Americans.”
Quick reminder that Democrats and the left have a long tradition of smearing the SCOTUS nominees of Republican presidents. Here’s a slanderous ad that NARAL Pro-Choice America ran–and quickly pulled amid backlash–during the confirmation hearings for John Roberts in 2005. pic.twitter.com/kwvwF23yTE
— John Daniel Davidson (@johnddavidson) September 23, 2020
Justice Samuel Alito
Bush nominated Samuel Alito to fill the seat being vacated by Justice Sandra Day O’Connor’s retirement. Like Roberts, Alito had been a federal appellate judge and was considered highly qualified to be a Supreme Court justice. Nevertheless, Democrats tried their best to smear him as a racist on the thinnest pretext during his confirmation hearings in early 2006.
Sen. Edward Kennedy led the way, angrily accusing Alito of belonging to a racist and misogynist group, Concerned Alumni of Princeton, while he was a student at Princeton in the ‘70s. Kennedy distributed copies of an article the group published in 1983 that made disparaging comments about blacks and Hispanics, and then, his voice rising, demanded to know if Alito agreed with the author’s assertion that black and Hispanics “don’t seem to know their place.”
Alito calmly replied that he had no recollection of the group, adding, “I disagree with all of that. I would never endorse it. I never have endorsed it.” Kennedy responded by saying Alito’s answers were “extremely troubling and in fact I don’t think that they add up.” Later in the hearing, Sen. Chuck Schumer again pressed Alito on the matter, prompting Alito to reply: “I have no association with those comments. I have always deplored any form of racism or bigotry.”
All of this finally got to Alito’s wife, Martha-Ann Alito, who had been sitting right behind her husband during the exchange with Kennedy. Repeatedly hearing her husband tarred as a “closet bigot,” she finally broke down and hastily walked out of the hearing in tears.
Justice Neil Gorsuch
Shortly after taking office in 2017, Trump nominated Neil Gorsuch, then a federal appellate judge, to fill the seat left vacant by the sudden death of Justice Antonin Scalia in February 2016. President Obama had nominated Merrick Garland to fill the seat but the GOP-controlled Senate under Majority Leader Mitch McConnell declined to hold confirmation hearings or a vote, arguing the winner of the 2016 presidential election should choose the nominee.
Democrats were incensed and accused Republicans of violating historical norms, even though there is a clear precedent for the Senate not to move forward with a Supreme Court nominee in an election year when the Senate and the White House are controlled by opposing parties. So when Trump nominated Gorsuch in April 2017, Democrats desperately tried to find reasons not to confirm a justice whose seat they believed “belonged” to Obama’s nominee.
They didn’t come up with much, but that didn’t stop them from going with what they had, which was a dissent written by Gorsuch in a Tenth Circuit Court of Appeals case involving a truck driver who abandoned his truck after waiting hours for help in inclement weather. Democrats seized on the case as evidence that Gorsuch wouldn’t be for “the little man,” as Feinstein put it.
During the confirmation hearings, the Supreme Court issued a ruling reversing a decision from the Tenth Circuit that came down against an autistic student whose parents sought reimbursement for his education under a federal law, the Individuals with Disability Education Act. Sen. Chuck Schumer seized on it, saying Gorsuch had been “rebuked” by the Supreme Court and that it was evidence of “a continued, troubling pattern of Judge Gorsuch deciding against everyday Americans — even children who require special assistance at school.”
Meanwhile, the liberal media did its part, as usual. BuzzFeed and Politico both ran articles accusing Gorsuch of plagiarizing portions of his book on euthanasia and assisted suicide. Yet the author he had supposedly plagiarized said there was “no issue” with Gorsuch’s factual description of medical terminology related to a case discussed in the book, and that, “It would have been awkward and difficult for Judge Gorsuch to have used different language.”
Democrats Are About to Do This Again
Senate Republicans generally don’t engage in this sort of calumny. They ask questions, maybe they use their time to grandstand a little, but by and large, they vote yes or no and move on. For Senate Democrats, vilifying the nominee has become a time-honored, if despicable, ritual.
And make no mistake: whomever Trump chooses, Democrats are going to deploy the same smear tactics they’ve been using for the past three decades. They will stop at nothing to portray the nominee as an extremist and a radical who will overturn Roe v. Wade and send us back to the Dark Ages.
It will, however, be more difficult to paint the nominee as a sexist — or a rapist — if Trump chooses a woman, as he is likely to do. But that doesn’t mean Democrats won’t find a way to denigrate her.
Consider, for example, what might happen if the nominee is Amy Coney Barrett, who in addition to being a federal appellate judge is also the mother of seven children, one of whom, a son, has Down’s syndrome, and two of whom are adopted from Haiti. Don’t be surprised if Democrats attack her for being racist because she adopted black children from Haiti. Don’t be surprised if they label her “anti-choice” because she didn’t abort her son with Down’s syndrome. If you think that’s beneath them, you’re not paying attention.
After all, these are Senate Democrats in a Supreme Court confirmation hearing. They have a long-standing tradition of engaging in the vilest and most dishonest character assassinations of Republican nominees — and they’re not about to break with their norms.