After Judge Alito's impressive performance this week (and Justice Roberts' equally impressive performance last September), numerous commentators having been writing the epitaph for the Democrats' strategy of "Borking" conservative judicial appointees.  For example, in today's Opinion Journal, Daniel Henninger wrote: 

"Borking was once a Democratic smear tactic.  This week —— amid intellectually exhausted and politically befuddled Democrats —— it became a laugh track." 

Mr. Henninger credits this development to the founding of the Federalist Society and the nurturing of a generation of tough—minded conservative legal scholars.  I disagree.  Both Judge Bork and then—Judge Thomas (the two main examples of "Borking" discussed by Mr. Henninger in his article) were brilliant, accomplished jurists, no less so than Justice Roberts or Judge Alito.  Yet that did not stop the Democrats from attempting to destroy their reputations with scurrilous and unfounded attacks.

Rather, the explanation for the changing fortunes of conservative Supreme Court nominees is much simpler. When Judge Bork's nomination was defeated in 1987, the Democrats controlled the Senate 55—45, and when Judge Thomas was subjected to a "hi—tech lynching" in 1991, the Democrats controlled the Senate 56—44.  (Note:  Democrats also controlled the Senate 57—43 when Justices Ginsburg and Breyer sailed through their confirmations in 1993 and 1994, respectively.)  In sharp contrast, the Senate that considered President Bush's nominations of Justice Roberts and Judge Alito is controlled by Republicans by a margin of 55—44.  See here.

Not surprisingly, the Democrats' "Borking" strategy has proved a glaring failure in this very different political context.  However, this is not a testament to the superior intellectual firepower of today's conservative jurists.  It's a result of the declining political fortunes of the Democratic Party.  Here's hoping that salutary trend continues. 

Steven M. Warshawsky    1 13 06