December 26, 2012
Robert Bork's 1987 nomination to the Supreme Court, and the uproar over his ideology that ultimately led to his defeat, forever changed the process by which the Senate confirms judges. In the 25 years that have followed Bork's nomination, the two parties have fought increasingly bitter battles over high court picks in an effort to tilt the third branch of government their way. In 2002, the Oxford English Dictionary added the verb "to bork" -- to systematically defame or vilify a person, especially in the mass media -- to their lexicon.
Now there are signs that amid a growing atmosphere of poisonous partisanship, what happened to Bork, who died last week at the age of 85, is beginning to bleed into fights over other nominees.
In just the past two weeks, President Obama's first choice to head the State Department after Hillary Clinton retires has withdrawn her name from consideration, while the candidate most likely to be named Secretary of Defense is left twisting in the wind, his impending nomination losing momentum fast.
There has long been a general consensus on Capitol Hill that, barring a nominee's significant legal, ethical or moral pothole, a president should be able to run his administration with the personnel he chooses. But as he builds a team for his second term, President Obama has allowed Congress to influence his choices.
While Supreme Court nominees now must undergo all but guaranteed political fights, Cabinet nominees have rarely had to sweat out a close Senate vote. And almost none have had to overcome a filibuster; even arch-conservative Republican John Ashcroft, picked to become George W. Bush's attorney general, avoided a filibuster and won confirmation with just 55 votes. In American history, before Obama took office, only seven Cabinet appointees have been rejected, and another thirteen have been withdrawn before the Senate turned them away.
But the pace is picking up; seven of those unlucky 20 nominees have occurred under Presidents Clinton, Bush and Obama. Clinton tried four times to pick an attorney general after his first choice, Zoe Baird, withdrew just five days after she was nominated; his second and third picks demurred even before they were officially nominated. Anthony Lake, Hershel Gober, Linda Chavez, Bernie Kerik, Bill Richardson and Tom Daschle all pulled the plug on their own nominations.
The increasing frequency of a president's personnel picks who can't win confirmation could be a symptom of an increasingly partisan Senate, where 60 votes are required to overcome more common filibusters, said Sarah Binder, a senior fellow of governance studies at the Brookings Institution and The George Washington University.
"The pattern of challenging would-be nominees is consistent with Republicans' willingness to exploit their procedural rights across the president's agenda," Binder said. "When the parties aren't so polarized, it's easier to find a nominee acceptable to your own party and to some centrist members of the opposition. When the parties polarize, it's not so easy to find acceptable nominees, particularly if senators are willing to flex their parliamentary muscles."
As Clinton prepared to leave her perch in Foggy Bottom, all signs suggested Obama was leaning toward appointing Susan Rice, his ambassador to the United Nations, to take over. But Rice's misinformed comments in the immediate aftermath of the attack on a consulate in Libya that killed Ambassador Christopher Stevens made her a target for Republican senators angry at the administration's handling of the situation. Rice's own abrasive style hurt her relations with those senators -- personal meetings with Sens. John McCain, Lindsey Graham, Kelly Ayotte and even moderate Susan Collins failed to assuage their concerns. After initially defending his potential nominee, Obama ultimately accepted her decision to withdraw from consideration in the face of an almost-certain filibuster.
And with Leon Panetta preparing to leave the Pentagon, Obama appeared set to tap former Sen. Chuck Hagel, the Republican Vietnam veteran who left the Senate in 2008. But Hagel has come under assault for his past comments about what he termed the "Israel lobby" and for his comments about an openly gay nominee he opposed in 1998. But the White House has left Hagel's not-yet-nomination twisting in the wind as President Obama delays a final decision. And the opposition, from gay rights activists and Israel's closest allies in Congress, has gone from a whisper to a roar. A once-certain nomination now looks tenuous at best, and dead in the water at worst.
In both cases, the nominees-in-waiting have come under fire for their ideology and public positions, rather than for any personal sins. Susan Rice does not have an undocumented worker for a nanny, and Chuck Hagel is current on his taxes, as far as anyone can tell.
In both cases, it's not simply Republicans standing in the way of President Obama's nominees. Some on the left began to question Rice's tenure overseeing African affairs during Bill Clinton's administration, a time when the United States stood by while dictators and militias hacked a bloody path through their countries. And the harshest blow to Hagel's potential nomination came Sunday, when New York Democrat Charles Schumer pointedly refused to endorse his old colleague's nomination on NBC's Meet The Press.
And in both cases, a qualified alternative who has his or her own allies in Congress has waited in the wings. With Rice out of the picture, Obama turned to Sen. John Kerry, the Massachusetts Democrat who won praise from McCain, Graham and other colleagues even while Rice looked like the more likely pick. And if Hagel isn't Obama's pick, he would likely turn to Michele Flournoy, the former Undersecretary of Defense for Policy, who has her own fans on Capitol Hill and within the defense and military communities.
Whether by dint of an unwillingness to fight for his nominees, because he has other priorities or because he sees more important fights coming down the pike, President Obama is allowing the personnel moves that will become critical in forming his foreign policy legacy to be influenced -- even decided -- by Congress. But unlike Baird, or Kerik, or Daschle, Rice and Hagel are in trouble for their policy views, not their personal sins. The borking, in other words, is no longer confined to the Supreme Court.
December 26, 2012