When George W. Bush nominated John Roberts to the Supreme Court in 2005, nearly two decades had passed since the momentous defeat of President Reagan’s nomination of Robert Bork. But that defeat was still fresh in the minds of key strategists for Bush, both inside and outside the White House, and they had determined to learn from it in order to prevent a repeat defeat.
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In 1987, a coalition of liberal organizations, led by the Leadership Conference on Civil Rights, the National Abortion Rights Action League, and People for the American Way, launched a national political campaign against Bork, the first ever against a Supreme Court nominee. Senator Teddy Kennedy ignited the campaign with his incendiary Senate floor speech forty-five minutes after Reagan announced Bork’s nomination on July 1.
Bork’s opponents cultivated their many allies in the media: “No segment of the press corps was neglected,” a celebratory account of the campaign states. They organized protests, ran television, radio, and newspaper ads, and mailed millions of alarming fundraising letters. The attack overwhelmed Bork and his defenders, who, caught unprepared for such a battle, were unable to deliver a strong counterpunch.
In 2005, the Bush White House and its allies were ready to initiate a political campaign in support of the Roberts nomination. The White House “has launched an orchestrated, multiple-front assault, ranging from Capitol Hill to television news programs,” reported the Chicago Tribune three days after Bush’s announcement ceremony. Supporters of the nomination, the Washington Post added, “rallied behind Roberts with e-mail blitzes, new Web sites, and radio and television advertising,” including a “$1 million commercial buy by Progress for America, a group allied with the White House.”
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Beyond acting on offense, the Bush White House on Roberts had several other significant advantages over the Reagan White House on Bork.
In 2005 Republicans had a comfortable 55-seat majority in the Senate, whereas in 1987 Democrats had a 54-seat majority. So Roberts didn’t need any Democratic votes to get confirmed, while Bork needed at least four.
Republican control of the Senate in 2005 also meant that scheduling of committee and floor action was in their hands. In late July, Judiciary Committee chairman Arlen Specter announced that the confirmation hearing would begin on Sept. 6—49 days after Bush named Roberts as his pick. With Democrats in control in 1987, Judiciary Committee chairman Joe Biden gave Bork’s opponents a full 77 days before the hearing to carry out their campaign.
The Roberts nomination also did not promise or threaten (depending on your perspective) to alter the balance of the Court. Bork had been nominated to replace Lewis F. Powell Jr., who was widely perceived as the swing justice on many issues. But the Court in 2005 had two swing justices, Sandra Day O’Connor and Anthony Kennedy, both of whom the conservative trio of William Rehnquist, Antonin Scalia, and Clarence Thomas needed to win over in order to have a majority. So while Roberts was expected to be to the right, jurisprudentially, of O’Connor, his replacement of her would leave Kennedy as the swing justice. And, of course, after Rehnquist died in early September and Bush re-nominated Roberts as chief justice, the perceived net effect of Roberts’s appointment on the ideological composition of the Court would be even smaller (and might even be a nudge in the liberal direction).
Roberts had a much thinner record of his legal thinking than Bork did, so there was much less for Democrats to attack. Beyond his handful of years on the D.C. Circuit, Bork had been a Yale law professor for two decades and had written prolifically on a broad range of issues. In sharp contrast, Roberts had written virtually nothing on his own behalf (rather than on behalf of clients) before joining the D.C. Circuit in 2003. Ironically, Democrats had done a favor of sorts for Roberts in making his first nomination to the D.C. Circuit, way back in 1992, die by inaction, and in obstructing for two years Bush’s nomination of him to that same court in 2001. A judicial record of thirteen years, or even of four years, would surely have provided much more fodder for criticism, even if ill-founded.
Roberts also had a telegenic demeanor. Roberts’s geniality, as we have seen, is one of the qualities that made him attractive to Bush. It is no coincidence that it would also play well in the political campaign to confirm him.
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The Leadership Conference on Civil Rights, the National Abortion Rights Action League, and People for the American Way would all oppose the Roberts nomination, just as they had opposed the Bork nomination. But the Bush White House was well prepared to win this political battle.