Robert Bork, who died today, is of course famous for being defeated for a spot on the Supreme Court in one of the most intense confirmation battles ever.
What’s worth remembering is that those who opposed Bork in 1986 never even considered filibustering to beat him. Bork was eventually defeated 42-58. Just to be clear: that’s 58 “no” votes, not 58 Senators who supported him but couldn’t find two more to get cloture.
So in the end it wasn’t close, but early on it wasn’t at all clear that moderate Democrats and Republicans would oppose him. Regardless it was always assumed by everyone that it would take 51 votes to beat him. You can tell that’s true because the next controversial nominee, Clarence Thomas, was confirmed by a 52-48 vote, with no cloture needed.
Bork was nominated in 1987, Thomas in 1991. Both preceded the decision by Bob Dole and the Republicans in 1993 to begin creating a 60 vote Senate by filibustering every important measure, later enhanced when Mitch McConnell and the Republicans decided in 2009 to create a true 60 vote Senate by in effect filibustering everything. (And yes, it’s true that Democrats incrementally upped the filibuster game on judicial nominations during the George W. Bush nomination; it was a small shift, best seen in the context of what had already happened from 1993 on, but it was another piece of the transformation of the Senate. It’s also true that there had been an earlier Supreme Court nomination filibuster, but it wasn’t even close to a normal procedure).
Again: twenty-five and twenty-one years ago — that’s not that long! — even in cases where liberals were quite intense in their opposition, the majority of the Senate determined the outcome.
The Senate has changed, dramatically, since Robert Bork’s nomination battle. And that’s why reform is needed so badly.