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Noah Feldman

When Democrats Blocked an 'Out of the Mainstream' Justice

A phrase used against Robert Bork 30 years ago is redeployed in today's Supreme Court fight.
What is the mainstream, anyway?

What is the mainstream, anyway?

Photographer: Wally McNamee/Corbis via Getty Images

Senate Minority Leader Chuck Schumer says the Democrats will filibuster any U.S. Supreme Court nominee announced by President Donald Trump next week who’s “out of the mainstream.” The phrase harks back to the Democrats’ success in blocking Judge Robert Bork from the high court in 1987, an event that both gave the world Justice Anthony Kennedy and permanently politicized Supreme Court confirmations. The Republicans could eliminate the filibuster using the “nuclear option,” of course. But Schumer’s threat still poses two crucial questions: What’s the “mainstream” when it comes to judicial practice and philosophy? And would the Democrats be justified in trying to block Trump’s nominee for being out of it?

It’s not entirely clear from the historical record who first used the phrase “out of the mainstream” to attack Bork. President Ronald Reagan nominated Bork on July 1, 1987. By mid-September, when the confirmation hearings were at their height, Lloyd Cutler, the distinguished Democratic lawyer who served as White House counsel to Jimmy Carter and later Bill Clinton, would write in an op-ed article supporting the confirmation that the “book against Robert Bork is that he is ‘outside the mainstream’ of contemporary judicial philosophy.” (Cutler argued that the charge was not true.) Ten days later, Reagan himself charged that Bork’s critics, not Bork, were “far outside the mainstream.”