SONDERMANN | On Robert Bork, Ketanji Brown Jackson and a new verb

Jeff Blattner was there at what many regard as the beginning.
That origin point, though Blattner would dispute it, was the 1987 nomination of Robert Bork to the U.S. Supreme Court and the all-out assault that ensued.
Today’s deep, consuming polarization has many fathers. More than a few observers point to the Bork hearings as a starting line. Republicans, of course, are fond of this version of history as one feature of the divide is the assignment of blame to those evil types across the aisle for firing the first shot.
Now a Coloradan dividing his time between Boulder and Edwards, Blattner was front and center in the effort, successful in the end, to derail Bork’s candidacy.
Many of us fancy ourselves leaving a mark on the world. But how many have actually added a word to the English language?
The Merriam-Webster dictionary now includes “bork” and defines it as a transitive verb meaning, “to attack or defeat a nominee or candidate for public office unfairly through an organized campaign of harsh public criticism or vilification.”
Suffice to say, Blattner takes exception to that “unfairly” part.
He correctly notes that roughly one in every four Supreme Court nominations over the country’s history has been rejected. That list includes George Washington’s nomination of John Rutledge to serve as just the nation’s second chief justice.
More proximately to the Bork drama, President Lyndon Johnson’s attempt to elevate his good buddy, Justice Abe Fortas, to chief justice went down in flames.
Richard Nixon then suffered the indignity of having two nominees for the same seat, Clement Haynsworth and Harrold Carswell, voted down, one after another.
Fun trivia: During Carswell’s Senate process, he was roundly criticized as mediocre. Nebraska Republican Roman Hruska rose to defend him, memorably asserting, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?”
Fast forward to 1987. Attorney Blattner had recently joined the staff of the Senate Judiciary Committee as counsel to Sen. Edward “Ted” Kennedy. Joe Biden, then a spry 44 years of age, though already 14 years into his Senate tenure, had just taken over the gavel as the committee chair.
Toward the end of his two White House terms, Ronald Reagan selected Bork, an appellate judge and conservative scholar, to fill a vacancy on the Supreme Court. Sen. Kennedy, with Blattner as his earnest, young staffer, had been preparing for this possibility. He wasted no time in laying down a marker and making clear this would be no ordinary confirmation.
Forty-five minutes after Reagan’s announcement, Kennedy took to the Senate floor. Relying heavily on Blattner’s research, Kennedy boomed, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution.”
And more. The fight had been instantly joined.
It was a bare-knuckles brawl. An intellectual heavyweight, though carrying the added weight of his role in Watergate’s “Saturday Night Massacre,” Bork did not back down. Ultimately, his nomination was defeated by a Senate vote of 58-42 with six Republicans joining in opposition.
Where previous nominations had most often failed due to ethical issues or just political pique, Blattner notes that judicial philosophy had always been an undercurrent.
With the Bork fight, it became the main current and a tumultuous, tempestuous one at that.
Four years later, the nation was treated to the spectacle of the Clarence Thomas nomination and the jaw-dropping testimony of Anita Hill. With Thomas set to take the seat of retiring Justice Thurgood Marshall, a civil rights icon, the confirmation was a war about philosophy no matter what form it took.
Of more recent vintage, the ceaseless escalation gave us the non-consideration of Merrick Garland during the final year of Barack Obama’s term. Any such election-year principle was of course then violated with Amy Coney Barrett’s confirmation just days prior to Donald Trump’s losing reelection bid.
In between were the Brett Kavanaugh hearings complete with testimony as to copious amounts of beer and another unruly he-said, she-said dispute that did nothing to mask the high stakes philosophical conflict at the root of it all.
For his part, Blattner continued to occupy a key role in these confirmation fights. During the presidency of the second Bush, Blattner played the part of nominees John Roberts and Samuel Alito as Kennedy prepared and rehearsed for the hearings and his moments.
For those nominees put forth by Democratic presidents, Blattner was one of those coaching them in the refined, unilluminating art of careful, evasive answering. Some might liken this practice, employed by selectees of both the left and right, to coach Dean Smith’s patented four-corners stall.
Now a senior fellow and adjunct professor at the University of Colorado Law School, Blattner remains more than a casual observer of this process.
With the coming hearings for Biden nominee Ketanji Brown Jackson, Blattner gauges that the venom might be dialed back ever so slightly in that her confirmation will not change the Court’s ideological balance. Still, look for Republican senators to go after her hard on resonant issues of crime.
Blattner predicts that Jackson will be confirmed by the votes of all 50 Democratic senators plus anywhere from two to six Republicans joining in support. Such nominal bipartisanship might be impressive in this era. But it pales next to the 96-3 vote of approval in 1993 for Ruth Bader Ginsburg, hardly a milquetoast appointee.
Respect is due to Blattner for being in the arena. He ran toward the flame when others back away. Asked for reflections on the Bork fight given everything that followed, he sincerely insists that there are “no regrets.”
In his graying years, as Blattner and I are the same age, he worries about the declining reputation of the Court in the eyes of a jaded, angry, warring public. Restoring that essential legitimacy will prove a far heavier lift than coaching a like-minded nominee or shooting down one of an opposing judicial mindset.
Eric Sondermann is a Colorado-based independent political commentator. He writes regularly for ColoradoPolitics and the Gazette newspapers. Reach him at EWS@EricSondermann.com; follow him at @EricSondermann


