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Since the defeat of Ronald Reagan’s nominee Robert Bork by the Senate in 1987, it has been Republican dogma that accurately describing the views of Republican Supreme Court nominees is dirty politics. Their ongoing efforts to keep the public from reading all of current nominee Brett Kavanaugh’s writings from his years as a political operative are simply part and parcel of their desire to make sure he can’t be pinned down by his actual beliefs — and it reflects a consistent pattern.
That pattern came into stark relief this week when Senate Judiciary Committee members Cory Booker, D-N.J., and Mazie K. Hirono, D-Hawaii, decided to release emails from Kavanaugh that had been declared “committee confidential” — that is, available to members of the committee but not the public.
All the emails revealed was Kavanaugh trying to push the law in a more conservative direction, asking to modify a characterization of Roe v. Wade as “settled law” and suggesting that racial profiling might be acceptable in some circumstances. Like many non-Republicans, I don’t agree with either of these positions, but they are utterly bog-standard positions for a Republican to hold.
Since nothing in the emails was particularly earth-shattering, it may seem strange that Republicans wanted them hidden. And yet Sen. John Cornyn, R-Texas, threatened Booker with potential expulsion for releasing them, though there was no chance that Republicans could get the two-thirds majority necessary to expel Booker. (The office of Judiciary Committee Chair Chuck Grassley, R-Iowa, later suggested that the confidentiality tag had been removed the morning of their release.)
So why were Senate Republicans so worried that Brett Kavanaugh would be revealed as someone with conservative views on legal issues? His legal conservatism is widely understood and even promoted as the reason for his nomination, and enough has been written about his broadly understood opposition to Roe v. Wade that it’s essentially canon at this point.
So to understand why Republicans are seeking to hide the blatantly obvious, it’s critical to understand the Republican myth of Robert Bork.
The idea that Bork was treated unfairly has been a pillar of Republican discourse since his defeat, and his name is always invoked whenever Senate Republicans violate another norm involving judicial nominations. As the mythos goes, Bork was unfairly denied a seat on the Supreme Court by Democrats who unfairly attacked his views on various issues.
Their complaints center around a speech given by Senator Ted Kennedy after Bork was nominated, in which he said (among other things) that “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” and “writers and artists would be censored at the whim of government.”
The problem with the Republican complaints about the speech is that nothing about it was inaccurate: In his public writings, Bork had opposed Roe v. Wade, decried the Civil Rights Act as immoral and unconstitutional and taken a narrow view of the First and Fourth Amendments. And he was nominated by Ronald Reagan because of his conservative views, which Democrats highlighted.
Procedurally, there was also nothing unprecedented or contrary to normative standards about the Bork hearing or the vote on his nomination; it wasn’t even filibustered. (Though Lyndon B. Johnson’s nomination of Abe Fortas as Chief Justice was filibustered by a collation of Republicans and conservative Democrats in 1968, which means even a filibuster would have been in line with recent history.) Bork was instead given a full committee hearing and an up-or-down vote. Bork was simply defeated — with six Republican senators voting against him — and the Senate then unanimously confirmed Anthony Kennedy, a more moderate conservative.
“Borking,” then, would actually mean that accurately describing a Republican judicial nominee’s substantive views on legal issues on which she or he might be asked to rule — and that’s somehow become the ultimate breach of civil discourse.
As four legal scholars demonstrated in detail at the Take Care blog, a similar Republican kabuki is taking place with respect to Kavanaugh. Prior to his nomination by Trump, Kavanaugh was widely praised by conservatives for his completely orthodoxy on conservative issues in politically salient legal reviews. And yet, as soon as he was nominated by Trump, his substantive views allegedly became an unknowable mystery.
Before the nomination, statements about Kavanaugh focused on his predictably conservative votes and opinions; after the nomination, Republicans prefer to discuss his alleged “open-mindedness” and (undeniably impressive) formal credentials.
It’s not a coincidence that some of the emails Republicans sought to conceal involve abortion. Most Americans want Roe v. Wade upheld and, if confirmed, Kavanaugh is a near-certain fifth vote to overrule it (whether explicitly or not.) To confirm him, Republicans absolutely need the votes of at least two nominally pro-choice Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, and that’s assuming they hold the vote, as planned, before the midterm elections in which they might well lose seats. Meanwhile, Kavanaugh is already unusually unpopular for a Supreme Court nominee.
So playing dumb about how Kavanaugh will rule and why he was nominated is politically important to Republicans. Keeping documents showing Kavanaugh’s views from the public is just another manifestation of the Republican belief that the public would reject their nominees if they were fully informed. They don’t want him to be borked — that is, for his actual understanding of the law to become well enough known that Republicans choose to vote against him.