This didn’t start with Bork

Barring an unlikely revelation of the Anthony Weiner variety, Brett Kavanaugh's confirmation to succeed his old boss Tony Kennedy is certain. No Republican will defect, and once the handwriting is on the numerical wall a few Democratic red state mavericks will run feral from the corral. Despite this certainty they'll be weeks of contentious, mean and overstated perorations. Woeful observers will pine for the good old days, lamenting the death of civility, and declaring that the era of judicial confirmation food fights began with the Borking of Bob Bork in 1987. Bunk.

In the early 50s three Republican presidents-in-waiting hailed from California: Earl Warren, Bill Knowland and Dick Nixon. They had two things in common: They all wanted to live in the White House and they all hated each other's guts. Fast forward to April, 1968, when Lyndon Johnson abdicated and a Nixon presidency became a wise money bet. Warren resigned as chief justice so Johnson, and not Nixon, could anoint his successor. LBJ decided to elevate his pal, Associate Justice Abe Fortas. They went way back. In 1948 Abe's courthouse wiles helped Lyndon steal a Senate seat.

As things turned out, opposition research unveiled that Lyndon wasn't the only thief on Fortas' client list, and Abe's career on the court was ended. Homer Thornberry, appointed to take Fortas' place as an associate justice when Abe took the top job, was handed his walking papers and walked back to the 5th Circuit. That was too bad. English was Homer's second language behind American Sign. His parents were both stone deaf, abjectly poor, and took turns staying awake to watch his crib because neither could hear his cries. What might have been the best American dream story of them all never happened.

Warren Earl Burger then got Earl Warren's job, and Abe Fortas' seat was now empty. President Nixon then appointed a courtly southern gentleman from the 4th circuit to replace him. But Clement Haynesworth's nomination was rejected 45-55; the first nominee rejected since John "so what if I'm a racist" Parker fell one vote short in 1930. Democrats were out for payback over Fortas. And it didn't help things that the Haynesworth nomination was widely believed to have been bartered for Strom Thurmond's help when it looked like a late Reagan surge might derail the Nixon train at the '68 convention.

Nixon, whose few dumb moves were total whoppers, then nominated Judge G. Harold Carswell, who turned out to have incorporated a "whites only" booster club at Florida State University and run for the Georgia Legislature as a segregationist. A few years after the Senate turned him down he was arrested for seeking romance in a public men's room. The FBI later admitted that they were a bit lackadaisical when it came to his background check. Nixon gave up on Dixie and picked ice-fisherman Harry Blackmun instead.

One year later two more seats opened up. But the pesky ghosts of racism and homosexuality kept haunting Nixon's designs. His attorney general, John Mitchell suggested a fellow government finance specialist from Arkansas named Herschel Friday. But when it came to light that Friday's firm represented the Little Rock School Board during its unpleasant spat with the federal government over desegregation, the American Bar Association chimed in with a thumbs down recommendation. Nixon then became intrigued with New Yorker Rita Hauser, who'd be a public relations bonanza as the first woman nominee. Pat Nixon, who rarely pillow-talked politics, put in a rib-tickle for a woman nominee, and Nixon relished the credit to be gained from making history. But four years earlier at an ABA forum on Women's Liberation and the Law, Hauser argued that laws enacted to advance the supposition that marriage existed to foster procreation were anachronisms. As an aside, she noted that it followed as the night the day that there was no logical legal barrier to homosexual marriage. That straw broke the back of the Rita boom and she was dropped from the short list. Both John Ehrlichman and John Dean later recalled that Nixon, an astute observer of American social trends, mused "maybe in the year 2000, but not now."

Still enamored of the political plusses of picking a woman, Nixon forwarded to the ABA the name of Mildred Lillie, a California appellate judge who had been on the bench since 1958. The ABA rated her, like Friday, unqualified. Given that women comprised only 14 percent of the profession and three-fourths of them had practiced less than seven years, the ABA's negative recommendation amounted to a gender lockout. (Jimmy Carter never got an opening to fill, but if he had, he'd have picked Amalya Kearse from the 2nd Circuit.) Nixon was actually relieved. He got the credit for trying to name a woman without catching any flak for it too. Nixon finally settled on Lewis Powell, now remembered for telling a gay law clerk he didn't believe he had every met a homosexual, and William Rehnquist, whom Nixon referred to on the White House tapes as "that clown Renchberg."

Never one to bury the hatchet, Nixon hoodwinked Congressman Jerry Ford into calling for the investigation and impeachment of Justice William O. Douglass, a liberal lion. Douglass' penchant for serial matrimony wrought money woes, so he joined the board of the Parvin Foundation, which radiated shady penumbras. Douglass also wrote articles for magazines that featured some artsy nudes that Ford dubbed pornographic. The whole thing amounted to an embarrassing pile of nothing and Ford came out of it looking like a boob. It drove Douglass crazy that less-than-hale health forced him to resign in 1975 and give the right to appoint his successor to President Gerald Ford. That nominee, John Paul Stevens, got a unanimous nod and President Reagan's first two picks, Sandra Day O'Connor and Antonin Scalia likewise sailed. Next came Bork, whose rejection, after the Reagan administration decided to pass the dutchie on the ill-starred Douglass Ginsburg, begat Justice Kennedy.

So when the ad homina start to fly after "the world's most deliberative body" reconvenes for the Kavanaugh scream-fest, keep one thing in mind: It's only honoring precedent.