Supreme Court Nominees

The Bork Fight – What it Meant and What it Cost

The Bork Fight – What it Meant and What it Cost

On October 23, 1987, the U.S. Senate voted 58-42 against confirming Robert Bork’s nomination to the Supreme Court. Democrats David Boren and Ernest Hollings joined 40 Republicans in supporting the D.C. Circuit Court Judge’s nomination, while Republicans John Chafee, Bob Packwood, Arlen Specter, Robert Stafford, John Warner and Lowell Weicker joined 52 Democrats in voting against the nomination.

Rejection as Activist Judge

Bork, a renowned antitrust scholar, was feared to be a judicial activist for his dismissal of the existing state of Supreme Court antitrust jurisprudence as “mindless law.”  He was an outspoken critic of Roe v Wade, which he told Congress was “a serious and wholly unjustifiable usurpation of state legislative authority” and later noted that “nobody, not the most ingenious academic lawyers nor judges . . . has ever managed to construct a plausible legal rationale for Roe, and it is safe to say nobody ever will.”

He was only the second Supreme Court nominee to be opposed by the ACLU, who asserted that Bork had demonstrated “a judicial philosophy that would fundamentally jeopardize the Supreme Court’s critical and unique role in protecting civil liberties in the United States.”

His testimony that being on the Supreme Court would be “an intellectual feast” was viewed by some as an inappropriate expression of eagerness.  The Senate Judiciary Committee rejected his nomination, noting that

despite his reputation as a practitioner of judicial restraint . . . he was an activist of the right . . .  ready and willing to substitute his views for legislative history and precedent in order to achieve his ideological goals.

Bork was unbowed by the Committee vote and insisted on a full Senate vote.

There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.

Stealth Nominees

The bruising political battle changed the nomination process forever, with subsequent Presidents placing an emphasis on finding stealth nominees with little paper trail to avoid precisely what happened with the Bork nomination where Senator Ted Kennedy was able to deliver his famous “Robert Bork’s America” speech on the Senate floor within 45-minutes of Bork’s nomination.

President George H.W. Bush’s two Supreme Court nominees – David Souter and Clarence Thomas – fit a new mold of Supreme Court nominee – the stealth candidate.  Souter had served in the New Hampshire judiciary for 12 years, but had no record on controversial matters.

Similarly, Clarence Thomas had served as a D.C. Circuit Court of Appeals judge for only 16 months when he was appointed.  Nobody actually believed President Bush when he claimed Clarence Thomas was “the most qualified person in America,” since it was evident that the African-American Thomas was not the most qualified but certainly an ideal candidate to replace Thurgood Marshall in the post-Bork world.

Justice Bork

After Bork’s nomination failed, President Reagan turned to D.C. Circuit Judge Douglas Ginsburg, whose nomination imploded over marijuana use.  Reagan’s third nominee, 9th Circuit Judge Anthony Kennedy was confirmed by a unanimous Senate vote.  The anniversary of the Bork defeat raises the question, how would a Justice Bork been different?

Writing in Belmont Law Review, Benjamin Pomerance answered the question of  What Might Have Been: 25 Years of Robert Bork on the United States Supreme Court, 1 Belmont L. Rev. 221 (2014).  Pomerance concludes that, unlike Justice Kennedy, Justice Bork likely would have voted:

  • to reverse Roe v. Wade;
  • would have upheld flag burning statutes; and
  • would have been no friend of gay marriage.

Given this assessment, critics like People for the American Way who aired the ad below, were right to oppose his nomination and his defeat is a major victory.

But a Justice Bork, who died in 2012, would have given President Obama the opportunity to appoint a third justice to the Supreme Court and create a liberal majority (but one saddled with the decisions made during Bork’s tenure).

In politics, however, the law of physics applies and every action has a reaction.  Thus, it remains to be seen how much fallout the Supreme Court reversal of Roe v Wade or other decisions by a Bork court would have had at the ballot box.  For example, would the additional vote of Justice Bork vote to overturn Roe v Wade in Webster v. Reproductive Health Services, 492 U.S. 490 (1989) have caused a backlash against the GOP?  Would there have been, for example, a sufficient residual effect to change the outcome of the 2000 race, giving President Gore the opportunity to appoint one or more justices as President George W. Bush had done?

A Justice Bork also might have reminded activists on both sides about the importance of maintaining the White House in order to control the Supreme Court.  Consider this fact, that by the middle of the next administration Justice Ginsburg will be 85, Justices Kennedy and Scalia will be 82 years old and Justice Breyer 80 years old.  A Democratic win could mean a 6-3 liberal majority, while a Republican win could mean rock solid 7-2 conservative majority.

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