{"id":484,"date":"2018-10-15T11:42:11","date_gmt":"2018-10-15T10:42:11","guid":{"rendered":"https:\/\/research.reading.ac.uk\/american-history-politics\/?p=484"},"modified":"2019-06-13T09:35:38","modified_gmt":"2019-06-13T08:35:38","slug":"supreme-controversy-reagan-and-trump","status":"publish","type":"post","link":"https:\/\/research.reading.ac.uk\/american-history-politics\/supreme-controversy-reagan-and-trump\/","title":{"rendered":"Supreme Controversy: Reagan and Trump"},"content":{"rendered":"

by Professor Iwan Morgan, Professor of United States History, University College London<\/span><\/p>\n

\n

In my chapter for Mara Oliva and Mark Shanahan, eds., The Trump Presidency: From Campaign Trail to World Stage<\/em>, I compare Ronald Reagan and Donald Trump\u2019s first year as president.\u00a0 One of the issues I discussed was the difference between Reagan and Trump\u2019s early approach to Supreme Court nominations. Given the recent controversy over Brett Kavanaugh\u2019s Senate confirmation, it is interesting to move the Reagan-Trump judicial comparison on from their first year as presidents.\u00a0 I discuss here the controversy surrounding Reagan\u2019s nomination of Robert Bork in 1987 and what the episode portended for present day Supreme Court nomination politics.<\/p>\n

Firstly, however, it is worth exploring Reagan\u2019s nomination of the first woman to sit on the Supreme Court.\u00a0 Less than a month before Election Day in 1980, polls showed Jimmy Carter drawing level with Reagan for the first time since the start of the campaign.\u00a0 Reagan\u2019s pollsters warned him that he needed to shore up support from women voters who worried about his belligerent rhetoric on Cold War matters.\u00a0 On October 14, Reagan announced at a press conference that he would name a woman to \u2018one of the first Supreme Court vacancies in my administration.\u2019\u00a0 Within weeks of him entering office, Associate Justice Potter Stewart announced he would retire at the end of the current Supreme Court session.\u00a0 Despite the reservations of Attorney General William French Smith, who wanted a reliable conservative jurist, Reagan insisted on honouring his campaign pledge with the immediate nomination of a woman.\u00a0 From a list of four names, Reagan interviewed Sandra Day O\u2019Connor, who came with endorsements from two of his key campaign supporters, Senator Barry Goldwater of Arizona and Senator Paul Laxalt of Nevada.<\/p>\n

\"\"
Reagan with Sandra Day O’Connor<\/figcaption><\/figure>\n

Such was the good impression O\u2019Connor made on Reagan, he decided to put her name forward without interviewing anyone else.\u00a0 The only real opposition to her nomination came from the Moral Majority and the New Right, who objected to her support of the Equal Rights Amendment and refusal to limit abortion rights as an Arizona state senator and then appeals court judge.\u00a0 Rapidly confirmed by 99 votes to nil by the Senate on 21 September, she became one of the swing votes on the Supreme Court until her retirement in 2006 \u2013 supporting its liberal bloc in cases involving state government restriction of abortion rights and gay rights and voting with the conservative bloc on affirmative-action judgements.<\/p>\n

Donald Trump\u2019s 2016 campaign promise was to appoint a conservative to the Supreme Court vacancy created by the death of Antonin Scalia, a seat kept open by the refusal of the Republican-controlled Senate to consider President Barack Obama\u2019s nomination of Circuit Judge Merrick Garland to fill it.\u00a0 Trump\u2019s choice was Neil Gorsuch, who carried the endorsement of the libertarian Federalist Society as a reliable judicial supporter of original intent constitutional interpretation.\u00a0 He also received the top rating of \u2018well qualified\u2019 from the American Bar Association, the voice of the legal profession.\u00a0 Nevertheless, an allegation of plagiarism pertaining to a book he had written on euthanasia gave Democrats cause to question his integrity.\u00a0 Accordingly, the Senate voted on party lines to approve his confirmation by 54 votes to 45 on 7 April 2017.\u00a0 As anticipated, Gorsuch has consistently sided with the Supreme Court\u2019s conservative bloc, but his appointment did not change the balance-of-power on the Court because he was a like-for-like replacement for the highly conservative Scalia.<\/p>\n

The Gorsuch confirmation imbroglio confirmed the recent trend to assess Supreme Court nominees on political considerations rather than their legal expertise.\u00a0 Arguably it was the Senate\u2019s rejection of Reagan nominee Robert Bork that set this in motion some thirty years ago.\u00a0 Bork had been on the Justice Department\u2019s radar as a highly qualified and brilliant conservative jurist since day 1 of Reagan\u2019s presidency, but he came with the considerable baggage of his provocative writings as a legal scholar over a quarter-century and his decisions as a US Court of Appeals judge for the District of Columbia since 1982.\u00a0 Civil rights groups considered him an enemy of affirmative action, women\u2019s groups thought him opposed to abortion right, and civil liberty organizations were also hostile to his stand pertaining to First Amendment rights.<\/p>\n

\"\"
Robert Bork<\/figcaption><\/figure>\n

When Nixon appointee and swing-voter Lewis Powell announced his retirement from the Supreme Court, Reagan justified Bork\u2019s nomination to replace him as a recognition of his formidable legal mind.\u00a0 However, Senator Ted Kennedy of Massachusetts framed the Senate\u2019s consideration of the nominee with his statement of opposition;<\/p>\n

\u2018Robert Bork\u2019s 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\u2019 doors in the midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is \u2013 is often the only \u2013 protector of the individual rights that are at the heart of democracy.\u2019<\/span><\/p>\n

As Washington Post <\/em>White House correspondent and <\/em>Reagan biographer Lou Cannon noted, this set off a lobbying campaign by various organizations that used the kind of symbolism and simplicity against Bork that Reagan himself had long employed to promote his conservative agenda.\u00a0 Perhaps this was a justifiable case of tit-for-tat, but it also opened the Pandora\u2019s box of subordinating Supreme Court appointments to politics.<\/p>\n

Whatever Bork\u2019s conservatism, it was grounded in careful jurisprudence.\u00a0 He was not the enemy of Brown v. Topeka <\/em>as some critics claimed, but he had significant reservations about Roe v. Wade <\/em>as an \u2018unjustifiable usurpation of state legislative authority.\u2019\u00a0 Bork did his own cause no good in his five days of Senate testimony in which he conducted himself with dignity but came across as aloof and distant, particularly to the television audience (polls showed public opinion turning against him afterwards).\u00a0 Reagan himself was missing in action at the critical time on a 21-day vacation at his California ranch, arriving back too late to lobby individual senators for support.\u00a0 On October 23, the vote would go 58-42 against Bork in the now Democrat-controlled upper chamber.<\/p>\n

\"\"
Bork’s testimony<\/figcaption><\/figure>\n

Perhaps the line from Bork to Kavanaugh is not a wholly straight one.\u00a0 Bork did not face personal allegations about his past.\u00a0 Reagan did not whip up base support for his nominee in the manner of Trump\u2019s gross and disgraceful comments about Professor Blasey Ford at a rally in Mississippi in advance of the Senate vote on Kavanaugh\u2019s confirmation.\u00a0 That said, the current subordination of the Supreme Court nominations to partisan politics dates to the Bork confirmation.<\/p>\n

Very rarely in the past had political considerations resulted in the rejection of a Supreme Court nominee \u2013 the refusal to confirm Herbert Hoover\u2019s nominee, John J. Parker, was the most recent occasion in 1929. True, politics had a hand in the Democratic-controlled Senate\u2019s rejection of two Richard Nixon nominees in 1969, but each had other liabilities to justify this course of action.\u00a0 After Bork, however, almost every presidential nominee to the Supreme Court has become the subject of partisan scrutiny regardless of the quality of their jurisprudence.<\/p>\n

There is also a further connection between the Bork and Kavanaugh nomination processes.\u00a0 With Bork\u2019s rejection by the Senate, the Reagan White House put forward Douglas Ginsburg but media revelations of his pot smoking as an undergraduate and then as a young Harvard academic led to his withdrawal.\u00a0 It was third time lucky for Reagan \u2013 Anthony Kennedy, his next pick, sailed through his confirmation hearings, during which he expressed disagreement with the more extreme claims of original intent doctrine.\u00a0 For the next 30 years, Kennedy was a swing voter, and has effectively held the balance on the Roberts Court in recent years, sometimes voting with the liberal bloc and sometimes with the conservative one.\u00a0 It was his announcement of retirement that opened the way for Trump\u2019s nomination of Kavanaugh.<\/p>\n

\"\"<\/p>\n

Kavanaugh\u2019s successful confirmation means that an avowedly conservative jurist replaces a swing justice.\u00a0 It therefore shifts the balance of power on the Supreme Court to the right. If Trump wins a second term, he may well be able make further nominations should octogenarians Stephen Breyer and Ruth Bader Ginsberg, liberal justices appointed by Bill Clinton, decide to retire.\u00a0 In that event he would complete the ideological transformation of the Supreme Court, a goal that conservatives have been seeking since the Reagan presidency.\u00a0 Should the Democrats recapture the Senate in 2018 or 2020, however, they will do all they can to defeat his nominations.<\/p>\n

So, \u2018supreme controversy\u2019 and the resultant politicization of judicial nominations are not going away any time soon.<\/p>\n

\"\"<\/p>\n","protected":false},"excerpt":{"rendered":"

by Professor Iwan Morgan, Professor of United States History, University College London In my chapter for Mara Oliva and Mark Shanahan, eds., The Trump Presidency: From Campaign Trail to World…Read More ><\/a><\/p>\n","protected":false},"author":106,"featured_media":493,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"__cvm_playback_settings":[],"__cvm_video_id":"","footnotes":""},"categories":[37,5],"tags":[87,20],"class_list":["post-484","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blogs","category-political-history","tag-reagan","tag-trump"],"acf":[],"yoast_head":"\nSupreme Controversy: Reagan and Trump - The Monroe Group<\/title>\n<meta name=\"description\" content=\"Given the recent controversy over Brett Kavanaugh\u2019s Senate confirmation, it is interesting to move the Reagan-Trump judicial comparison on from their first year as presidents. 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