Will Fassuliotis ‘19
Guest Columnist
The nomination of Robert H. Bork in 1987 is likely the most famous (or infamous) confirmation battle in the history of the Supreme Court. This is evident in that the failed nominee’s name became a verb. No one speaks of “Frankfurting” someone, or “Harlaning” another, but Judge Bork was borked, and so never became Justice Bork. The word has even crossed the Atlantic, with the Oxford Dictionary defining “bork” as to “obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.”
Bork was neither the first nominee to be treated toughly nor even the first in the second half of the twentieth century to be rejected. But something about the Bork nomination was qualitatively different from the confirmation battles that happened before him. People opposed Abe Fortas, Clement Haynsworth, and Harrold Carswell for ideological reasons, yes. But ideology alone could not have sunk the trio. Liberal senators voted against Fortas, and conservative senators voted against Haynsworth and Carswell. There was a sense that if you were a qualified nominee with no personal baggage, you would be approved. Sure, a minority of Senators would gripe and vote against you, but not in large enough numbers to seriously threaten your chances.
Unlike Fortas and Haynsworth, Judge Bork did not lack personal integrity. Unlike Carswell, Bork was no mediocre candidate. He had a distinguished legal and academic record. He made partner at a major Chicago firm before joining the faculty at Yale Law School in 1962. He was the Solicitor General from 1973 to 1977 under Presidents Nixon and Ford, and he argued over thirty cases at the Supreme Court during that time.[1] His 1978 book, The Antitrust Paradox, revolutionized antitrust law. Retired Chief Justice Burger said there was no one with better qualifications than Judge Bork.
But most important to his confirmation chances, Robert Bork was a leading proponent of originalism. Only the late Justice Antonin Scalia rivaled Bork’s early importance in developing and evangelizing the method of constitutional interpretation. His method is best explained by his opening statement to the Senate Judiciary Committee: “The judge’s responsibility is to discern how the framers’ values, defined in the context of the world they knew, apply in the world we know. If a judge abandons intention as his guide, there is no law available to him, and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.” No penumbras, no emanations.
It was for this reason—his originalism and judicial restraint—that President Ronald Reagan selected him to replace the retiring Lewis Powell. Justice Powell was the Justice Kennedy of his time, in that he was the median swing vote. More often than not, he voted in a “conservative” manner. But not always, especially not in cases involving social issues. He voted to eliminate abortion bans in Roe v. Wade,[2] and consistently defended Roe and the right to access abortion in subsequent cases. Regents of the Univ. of Cal. v. Bakke[3] was a rare “4-1-4” opinion. Four justices believed both racial quotas and affirmative actions were legal, while four justices believed neither were legal. Like King Solomon, Powell split the difference. Powell was the “1.” Writing solely for himself, he ruled that racial quotas were illegal, while affirmative action was not. In the end, he had five justices in favor of the judgement of the opinion, though not the same set of five justices.
The counter-revolution that Nixon promised never emerged. Reagan, who shared many of the same criticisms of the Court, this time only compounded with abortion and affirmative action, would not make the same mistake. Bork was no Harry Blackmun; he was no Powell. He would vote, in the eyes of the conservative movement, the correct way—every time.
Bork’s philosophy was not lost on Reagan’s opponents. For the very same reasons Reagan lauded Bork, his opponents derided him and his “extremist views.” The Bork hearings popularized the idea of a nominee being “outside the mainstream” of legal jurisprudence. Opponents likewise knew what replacing Powell with Bork would mean for the Supreme Court’s jurisprudence. Senator Ted Kennedy’s vivid painting of “Robert Bork’s America” was the most memorable moment of the confirmation battle. Speaking on the floor of the Senate, Kennedy warned that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”[4]
The battle lines were drawn. The balance of the court was up for grabs.
We should first back up, however, to place Bork’s nomination in context. Reagan had already added two Justices to the Court. In his first year as President, he nominated Sandra Day O’Connor, fulfilling a campaign promise to nominate the first female justice to the Supreme Court. O’Connor was confirmed 99-0. In 1986, only a year before the Bork nomination, Reagan sought to replace the retiring Chief Justice Burger by promoting Justice William Rehnquist, and then selecting Judge Antonin Scalia to fill Rehnquist’s open spot. Rehnquist faced some opposition, but, per the old paradigm, was confirmed by a comfortable margin of 65 (forty-nine Republicans plus sixteen Democrats) to 33 (thirty-one Democrats plus two Republicans). Scalia faced no opposition, and was approved 98-0.
What was the difference? Liberal opponents focused their firepower on Rehnquist, but were unable to convince the center-left to join them. Concentrating on Rehnquist, they mostly left Scalia alone. Scalia’s ethnicity as an Italian-American, the first to sit on the Supreme Court, helped him as well. Democratic Governor Mario Cuomo, also an Italian-American, supported his nomination despite their ideological differences.
By the time of Bork’s nomination, Republicans would no longer control the Senate. Now, instead of Senator Strom Thurmond as Chairman of the Senate Judiciary Committee, Senator Joe Biden would wield the gavel as he prepared to run for President in 1988. But Democratic control did not doom Bork—Ford, Nixon, and Eisenhower were successful even as the opposing party controlled the Senate—though it did decrease the margin of error. But most importantly, the Supreme Court was not up for grabs in the same way Powell’s retirement made so clear. Rehnquist replaced Burger, and Scalia replaced Rehnquist. This barely moved the court rightwards, if at all. Bork, unequivocally and undoubtedly, would.
Two-and-a-half-months after his nomination, the Senate held its first hearing for Judge Bork. During that time, Bork faced the first sustained media campaign against a nominee, including an advertisement narrated by Gregory Peck—Atticus Finch himself—echoing Senator Kennedy’s [5]. But Bork’s confirmation hearing is not remembered only for the vitriol. Judge Bork, unlike every Justice to come before him, did not shirk questions when asked about his constitutional and legal philosophy. [6].” In 1997, then-Professor Kagan said the Bork hearing was “the best thing that happened, ever happened, to constitutional democracy.” Bork sparred with senators, debating the whole gamut of original intent, questions of precedent, liberty and the bill of rights, privacy, equal protection, and many other issues.
While a “masterclass” in Constitutional law, Bork was ultimately unsuccessful in convincing senators on the fence that he was indeed not “out of the mainstream.” The two-and-half month campaign took its toll. Neither the Reagan Administration nor other supporters responded in kind—they believed Bork’s brilliance would shine during the hearing and convince the necessary number of senators. Bork’s long history, however, would hurt him in the proceedings.
Opponents presented Bork with some of his controversial writings and asked him to explain them. For some, he backtracked, saying he either changed his mind over time or that some works were intentionally provocative in his capacity as a professor. Where once he denigrated precedent, he discovered a newly found respect for it during the hearing. To take one example, Bork wrote an article in the New Republic in 1963 criticizing the public accommodations requirements of what became the Civil Rights Act of 1964. During the hearings, he renounced his work, but this played into his portrayal as an opponent of equal rights for African Americans. This was a studied effort by opponents. As Senator Biden explained, “Every time I could get him to recant, I won. People don't believe in recantations.” But he was more than willing to defend his views, including an extended colloquy with Senator Biden about whether the constitution included a right to privacy (Bork argued it did not).
While Supreme Court hearings were first televised in 1981, Bork’s hearing was the first to get sustained play on television. People did not just read Ted Kennedy’s excoriation of Bork in the paper, they heard and saw him excoriate Bork on TV. Bork’s professorial manner did not help him either. Tom Shales of the Washington Post wrote that Bork came off as “cold-hearted” and “condescending,” a man who “looked and talked like a man who would throw the book at you—[7] When asked by a sympathetic senator why he wanted to be on the Supreme Court, he answered it would be “an intellectual feast,” which only played into the perception that he did not care about people.
Bork lost the battle of public opinion, and he lost in the Senate. The Senate voted against confirmation, 42 in favor (forty Republicans plus two Democrats), 58 against (fifty-two Democrats joined by six Republicans). Bork and the Reagan administration were unable to rally conservative and Southern Democrats to his side, while liberal Republicans defected. Reagan’s second choice, Judge Douglas Ginsburg, had to withdraw after his use of marijuana as a professor with students became public. Finally, Reagan would successfully nominate Anthony Kennedy, who would be just as much a swing Justice as his predecessor.
No nominee with the depth of writings on significant and controversial constitutional issues as Bork did would ever be nominated again. Kennedy, and every nominee afterwards, including Kagan, would decline to comment about his or her judicial philosophy in any more than a cursory manner, in order to maintain plausible deniability. Now with Justice Kavanaugh confirmed, we come full circle. Kavanaugh is expected to be the fifth conservative justice, finally creating a conservative majority that has been decades in the making. But unlike Bork, Kavanaugh has never indicated so, at least not out loud. He studiously refused to answer whether he thought there was a right to privacy or what it entailed. For those interested in ideas, their silence and feigned ignorance is a shame. But it is, politically, completely understandable. After all, no one wants to be Borked.
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wf5ex@virginia.edu
[1] In his capacity as Solicitor General, Bork fired special prosecutor Archibald Cox during the Saturday Night Massacre, in accordance with President Nixon’s order. After initial attacks, this did not play too much a role in the hearing after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, who resigned instead of following Nixon’s order, defended Bork’s action as necessary to prevent the Justice Department from operating without a leader. Bork would later appoint a new special prosecutor, who continued without interference.
[2] 410 U.S. 113 (1973).
[3] 438 U.S. 265 (1978).
[4] The speech was captured on C-SPAN, available at <https://www.c-span.org/video/?45973-1/robert-borks-america>. Kennedy’s speech begins at 25:35, this excerpt starts at 27:36. It is worth listening to.
[5] The commercial is available on YouTube, “1987 Robert Bork TV ad, narrated by Gregory Peck,” <https://www.youtube.com/watch?v=NpFe10lkF3Y>.
[6] The Bork Hearings: Highlights from the Most Controversial Judicial Confirmation Battle in U.S. History. Ralph Shaffer condenses the voluminous transcript into a readable book about the questions asked and answered.
[7] The Bork Turnoff, October 9, 1987.