What is the mainstream, anyway?

Photographer: Wally McNamee/Corbis via Getty Images

When Democrats Blocked an 'Out of the Mainstream' Justice

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

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.”

U.S. Supreme Court

In retrospect, the claim that Bork was out of the mainstream had two components. The first was that Bork, in his academic writings, had criticized and rejected a series of landmark liberal decisions made by the Supreme Court from the 1940s through the 1970s that had come to be seen as settled law. These included such highlights as Shelley v. Kraemer, in which the court refused to enforce racially restrictive real estate covenants; Harper v. Virginia Board of Elections, striking down a poll tax as a violation of equal protection; and Griswold v. Connecticut, which invalidated an anti-contraception law and became the precursor to Roe v. Wade.

Few of these decisions had been unanimously decided. Bork could be defended -- as Cutler in fact defended him in print -- by saying that his views were no more extreme than those of the justices who had dissented, many of them moderate conservatives.

The real problem Bork faced was that although these decisions might have been controversial when decided, they had come to be seen as inevitable and necessary building blocks of constitutional law. To question them was to question an orthodoxy that had developed over some 40 years.

Bork never went so far as to say that the unanimous Brown v. Board of Education school desegregation decision should be overturned, as his fellow originalist Raoul Berger did. But Brown was almost the only sacred liberal cow he left uncriticized.

It seems unlikely that any Trump nominee would go as far as Bork in openly calling for overturning long-established civil-rights precedents. Too much time has passed since those cases were decided, and Bork’s rejection furthered the notion that they’re set in stone.

The Trump nominee would presumably be very happy to overturn Roe v. Wade but, given the criticism of the case over the almost 45 years since it was decided, that’s nowhere near as extreme as what Bork sought.

It emerges that Trump’s nominee is unlikely to be as “out of the mainstream” as Bork on that dimension.

The other way Bork was thought to be out of the mainstream was in his constitutional originalism itself. Antonin Scalia had been confirmed to the Supreme Court the previous year, but in his career as an academic and as an appellate judge, Scalia had focused on administrative law, and had not been outspoken about constitutional theory. As a result, his confirmation hearings hadn’t emphasized originalism -- and he was confirmed, 98-0. Scalia clearly seemed less threatening to Senate Democrats than William Rehnquist, who was confirmed to be chief justice the same day by a vote of 65-33.

In 1987, militant originalism was new enough that it could plausibly be described as an out-of-the-mainstream constitutional philosophy. And Bork was one of its few prophets.

Today that’s no longer the case. Most Republican-appointed judges and a few Democratic appointees would say they’re constitutional originalists. Fewer law professors take this stance, but that’s partly a result of the way the legal academy skews liberal, much like the rest of the academy.

I suspect, therefore, that if the Democrats try to use the “out of the mainstream” tag against a Trump nominee, it won’t capture the public imagination. They would be better off honestly saying that they reject the nominee’s conservative judicial philosophy.

The public gets it. Judge Merrick Garland was and is as moderate and reasonable as could be. The public understood why the Republicans blocked him -- and rewarded them with the presidency and control of the Senate.

Trump’s nominee is unlikely to be a centrist like Garland. The public of all political persuasions will understand why the Democrats are blocking that person. There’s no need to say the nominee is out of the mainstream, because the public has learned the key lesson of the Bork hearings: that the court is a political body, and confirmation fights are partisan, political affairs. The post-Bork world has many vices. But it’s here to stay.

  1. Tellingly, Rehnquist had been questioned about a memo submitted to Justice Robert Jackson when Rehnquist was his law clerk, a memo that seemed to argue against what became the holding of Brown v. Board of Education, striking down school segregation and rejecting the doctrine of separate-but- equal.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net