One reason presidents nowadays choose justices with impeccable law school and appellate court credentials is that it immunizes them from the charge that they’re not qualified—a charge that undid, for example, Bush’s choice of Harriet Miers in 2005, whom conservative senators suspected of intolerable moderation while using her inexperience to justify their objections.
At first blush, an exception might be Ronald Reagan’s failed 1987 nomination of Robert Bork—for the seat ultimately filled by Kennedy. After all, ideological debates pervaded the Bork controversy, with Senator Ted Kennedy famously warning that his appointment would mean the return of “back-alley abortions,” “segregated lunch counters,” “midnight raids” and more. But on the whole, Bork’s Democratic critics made a point of not calling him “too conservative” or framing their antagonism in simple ideological terms. In a subtle but important distinction, they rendered him, as the Judiciary Committee report said, “outside the mainstream of such great judicial conservatives as Justices Harlan, Frankfurter and Black, as well as such recent conservatives as Justices Stewart, Powell, O’Connor and Chief Justice Burger.” One senator boasted of having backed Reagan’s other nominees, including Antonin Scalia, but said he opposed Bork for his “temperament and understanding”—seemingly nonpolitical qualities—insisting, “The question of Robert Bork is not an issue of a person being conservative or liberal, Republican or Democrat.” Bork’s eccentric style of speaking and his famously untamed beard—Reagan administration officials even considered having him shave it—added to the perception of a half-cocked temperament and out-of-the-mainstream worldview.
All of this began to change in 2001. After the Bush v. Gore decision that gave George W. Bush the presidency—a 5-4 decision that both kicked off our era of partisan polarization and underscored the partisanship at work in the Supreme Court—several observers said it was time to drop the pretense that politics wasn’t central to the confirmation process. “The not-so-dirty little secret of the Senate is that we do consider ideology, but privately,” confessed Senator Chuck Schumer in a New York Times op-ed piece. Harvard Law School professor Randall Kennedy likewise called for ending the charade. “A transparent process in which ideological objections to judicial candidates are candidly voiced,” he argued, “is a much-needed antidote to the murky ‘politics of personal destruction.’”