Borking Obama's Appointment to the Court

In 1987, President Ronald Reagan appointed a well qualified Conservative Federal Judge to the Supreme Court. Using a series of lies to back them, the Democrats defeated Robert Bork by a vote of 58-42. Six Republicans voted against his confirmation, including Arlen Specter (who later defected to the Democrat Party) and John Chafee (whose son was elected Governor of Rhode Island, converted to the Democrats and ran for the Democrat nomination for President for a brief time in 2015.) Even without that betrayal, Bork would have been three votes shy of confirmation.

In his place, Reagan appointed Anthony Kennedy, who votes with the Conservatives more often than not but who has also gone to the other side on several major issues.

What the Democrats did in rejecting Judge Bork’s appointment was not simply stopping one man from taking a seat on the Supreme Court. That act impacted one seat on the Court for three decades, maybe more. However, it also set a precedent that the power of the Senate to grant advice and give or withold consent is a weapon to be wielded in the interests of advancing a political agenda.

With today’s tragic passing of Justice Antonin Scalia, the stage is set for a showdown between the Legislative and Executive Branch whose roots go back to Bork’s rejection by the Democrat controlled Senate. Given that this is a Presidential election year when Conservatives are far more active than at any time in the past, the pressure by grassroots Conservative voters on the Senate to reject an Obama appointee will be beyond tremendous. It will be irresistible. Any Republican who calls for confirmation of whomever Obama sends to the Senate will see a swift end to his or her political career.

The “Borking” of an Obama selection is not limited to simply voting to reject his appointment. The Republicans have a plethora of options, meaning Obama has multiple obstacles, any one of which could prove insurmountable. Compounded, the likelihood of confirmation is close to zero.

First, the Senate Judiciary Committee has to hold confirmation hearings and approve a nominee. Given that Committee Chairman Chuck Grassley is an anti-Obama stalwart and a firebrand, the probability of confirmation hearings even being scheduled is virtually nil. The idea that the Republican members of the Committee would not vote as a block against an Obama appointee – even if hearings were scheduled – is laughable.

Second, Mitch McConnell would have to schedule an actual on the appointee. His public statements immediately following the announcement of Scalia’s death make it highly difficult for him to do so without subjecting him to charges of caving to the Democrats.

Third, the Senate would have to vote to confirm the appointee. Even without a filibuster, the Democrats would need to convince four Republicans to join them. During the last Democrat majority in the Senate, Harry Reid used a parliamentary trick to get the Senate to interpret the filibuster rules to prohibit filibusters against Federal judicial appointments. It remains to be seen whether McConnell would continue with that interpretation or if it would apply to Supreme Court appointments but if such appointments can be filibustered, the Democrats would need 13 Republicans to side with them. That is about as impossible a goal as any in politics today.

Of course, Obama could try to make a recess appointment, but the Supreme Court itself ruled in 2014 that the President’s recess appointment power is severely limited. In the past, even the Senate Democrats have arranged series of pro forma sessions of the Senate such that there was no legal recess in order to prevent Republican Presidents from making recess appointments.

There is very little chance that an Obama appointee could be confirmed by the US Senate. That fact – even prior to an actual appointment being made – will impact not only the general election but also the primaries which determine who will be the nominees of the two major Parties. This issue will also bring the stakes of this election into sharp focus in a way they could not have been highlighted before. The election itself – and with it, America’s future path – has just changed markedly, hopefully for the better.

Imre Beke is the former host of Right Time Radio on WKNY 1490 AM. Imre is currently the CEO of Heritage American Media, which is about to launch an online radio and video network and operates the Heritage American News Digest news aggregation website.