—Appointment wars: When thinking of the Bork confirmation fight, I haven't ever gone much farther than "the guy who kowtowed to Nixon's firing of the special prosecutor", but maybe there's some more nuance there.
Yeah, Bork got put in a lousy situation. The top two guys at Justice were already gone and the department was basically facing a decapitation at a pretty important time. Later that year he said that he was going to resign immediately after carrying out the president's order, if for no other reason than to protect his own reputation, but was talked into staying.
I think he could have survived that. What Bork's real problem was, was that he was Scalia before Scalia. He helped create the foundations of originalism. I don't think there's any doubt that Bork was qualified. His contribution to legal theory is unmatched in modern times by other nominees outside of Marshall and Ginsburg before they reached the court. And even those two didn't quite have the breadth of influence as their achievements were largely focused on individual aspects of the law while Bork help shepherd a legal philosophy that has grown into the preeminent conservative jurisprudence.
What set Bork's nomination apart, though, was that for years presidents were generally given a the viciousness of the attacks against him and the quasi-political campaign nature of them. It was warned that he'd take America back to segregation and make evolution illegal. It set several precedents. For one, it became the template that all future Republican nominees would have to deal with. The talking point you hear "take us back to..." became set and would be used pretty much reflexively.
Bork was candid about his judicial philosophy with the judiciary committee. This was used against him as nuanced legal reasoning was simplified for public consumption. Additionally, he did not play well on television. As a result, judicial nominees largely say nothing of interest during their confirmation hearings and are reduced to meaningless soundbites that are repeated over and over.
Generally, presidents were allowed their judicial nominations previously as long as they were qualified. I don't want to oversell that point because sometime they didn't get their way, but most judicial nominees were passed with little to no opposition. Bork's nomination process really set things in motion to the point where I doubt I'll ever see a judicial nominee with 80+ votes again in my lifetime.
When you say the escalation "all happened on the Democratic side", how far back does the game go of holding up the lower court appointments? I haven't heard of it going back farther than Clinton but you seem to have done more research here.
Well, if it went back further than Clinton, it would have to be on the Democrat side, wouldn't it? Clinton was the first Democrat to have to deal with a Republican Senate since Truman's first term.
Anyway, here's a list of George H.W. Bush circuit court nominees that sat in committee and were never acted on until Clinton took over.
- Franklin Stuart Van Antwerpen
- Jay Waldman
- Terrence Boyle
- Lillian BeVier
- Sidney A. Fitzwater
- John Smietanka
- Frank Keating
- Federico Moreno
- John Roberts
That's just the circuit court nominees I could find. I'm not going to research the district level. But here's a page showing all the failed court nominees and showing the ones that never received a vote and the explosion of them in recent years. Though not receiving a vote could just mean the nomination was withdrawn.
—"What you highlighted is a proactive defense to the objection that this would put the seat off to the new president. Nothing more."
Okay, so if you agree he's proactively defending against said objection, to me that clearly means that he is saying that said objection does not accurately reflect his position. So would you agree that his "proactive defense" included a denial that his proposal "would put the seat off to the new president"? If so, what could that possibly mean other than that the current president would get a chance after all to nominate someone?
Incorrect. Biden never denies that he was putting off his seat until the next president (assuming Bush lost). All he denied wast that it was MOTIVATION for doing so. You see, Biden says, it is all about keeping dignity for the process.
McConnell basically did the same thing. He swore up and down with a straight face that he wasn't keeping Scalia's seat open because he hoped a Republican president would fill it. He used the paper-thin excuse that he just wanted to let the American people have a say. This was rotgut of course. But it gave him some bit of deniability (I suppose). Biden did the same thing. Biden was saying his motives in this are pure despite the reason proffered, that he doesn't think the Senate can behave itself, is quite possibly even thinner than McConnell's lame excuse.
This was a prepared speech. If Biden were offering to allow Bush to nominate and confirm someone after the election he could have and would have said so. It would have made his speech much less controversial. He chose not to. Instead, you're parsing.
And, again, Biden knew that there was no realistic way Bush would get in a nomination as a lame-duck president. Our realistic choices come down to either Republicans are correct and Biden said that the winner of the election would decide. Or Biden was lying and he was out to accomplish the same thing in a misleading manner.
—"Democrat nominees that can squint and find a right an abortion in the 14th Amendment, but can't find a right to bear arms in the 2nd" example please.
I thought those were examples. Here's a couple recent-ish cases on the controversies if you like.