Robert Bork Supreme Court nomination

The Robert Bork Supreme Court nomination refers to the 1987 nomination by President Ronald Reagan of Judge Robert Bork to serve as an Associate Justice of the United States Supreme Court. The U.S. Senate rejected his nomination.

Nomination

Bork (right) with President Ronald Reagan, 1987

Supreme Court Justice Lewis Powell was considered a moderate, often referred to as a "swing vote" in close decisions. Even before his expected retirement on June 27, 1987, Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever President Ronald Reagan nominated to replace Powell, assuming that it would tilt the court rightward. Democrats warned Reagan there would be a fight over the nomination.

Reagan nominated Bork for the seat on July 1, 1987. Bork had long been interested in the position; in 1973, President Nixon promised him the next seat on the Supreme Court following Bork's compliance in the controversial Saturday Night Massacre. Nixon was unable to carry out the promise after his resignation.

Within 45 minutes of Bork's nomination to the Court, Senator Ted Kennedy (D-MA) took to the Senate floor with a strong condemnation of Bork in a nationally televised speech, declaring,

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 could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.

A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. Bork later said in his best-selling book The Tempting of America that the report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility". TV ads narrated by Gregory Peck attacked Bork as an extremist, and Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response of Kennedy's "Robert Bork's America" speech stunned the Reagan White House; though conservatives considered Kennedy's accusations slanderous, the attacks went unanswered for two and a half months.

A hotly contested United States Senate debate over Bork's nomination ensued, partly fueled by strong opposition by civil and women's rights groups concerned with Bork's stated desire to roll back civil rights decisions of the Warren and Burger courts, and his opposition to the right of the Federal government to impose standards of voting fairness upon the states. Bork is one of only three Supreme Court nominees to ever be opposed by the ACLU. Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy", as demonstrated by his role in the Saturday Night Massacre.

During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988 Video Privacy Protection Act. His video rental history was unremarkable, and included such harmless titles as A Day at the Races, Ruthless People, and The Man Who Knew Too Much. The list of rentals was originally printed by Washington D.C.'s City Paper.

To pro-choice legal groups, Bork's originalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. These groups also claimed that Bork's second marriage to a former Roman Catholic nun would allow her to influence his decisions on the abortion issue. Mary Ellen Bork is now known as a "New Feminist" activist. Accordingly, a large number of left-wing groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Ironically Bork himself became a Catholic in 2003, and his replacement (Justice Kennedy) was a Catholic (as well as 4 of the next 6 Justices to join the court including Thomas who returned to the faith of his boyhood thanks to Justice Scalia). Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade. Simultaneously, however, his supporters expressed frustration that some of Bork's most controversial and conservative views, including those on the scope of the First Amendment and the Equal Protection clause of the Fourteenth Amendment, as expressed in his writings and past opinions, had been suddenly moderated for his testimony before the Committee.

As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing. Biden stated his opposition to Bork soon after the nomination, reversing an approval in an interview of a hypothetical Bork nomination he had made the previous year and angering conservatives who thought he could not conduct the hearings dispassionately. At the close, Biden won praise for conducting the proceedings fairly and with good humor and courage, as his 1988 presidential campaign collapsed in the middle of the hearings. Rejecting some of the arguments that other Bork opponents were making, Biden framed his discussion around the belief that the U.S. Constitution provides rights to liberty and privacy that extend beyond those explicitly enumerated in the text, and that Bork's strong originalism was ideologically incompatible with that view.

Confirmation vote

On October 6, Bork's nomination was rejected in the committee by a 9–5 vote. Since a committee rejection made a rejection by the full (Democratic) Senate extremely likely, Bork was widely expected to concede defeat and withdraw his name from a floor consideration. However, three days later, Bork announced his belief that

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.

Faced with certain defeat, Bork's political support fell silent; Bork would even express disappointment with Reagan's tepid continued endorsement. On October 23, 1987, the Senate rejected Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Senators David Boren (D-OK) and Ernest Hollings (D-SC) voted in favor, with Senators John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (R-PA), Robert Stafford (R-VT), John Warner (R-VA) and Lowell P. Weicker, Jr. (R-CT) all voting nay. The vacant seat on the court to which Bork was nominated eventually went to Judge Anthony Kennedy.

State	Senator	Party	Vote
Alabama	Howell T. Heflin	D	Nay
Alabama	Richard Shelby	D	Nay
Alaska	Ted Stevens	R	Yea
Alaska	Frank H. Murkowski	R	Yea
Arizona	Dennis DeConcini	D	Nay
Arizona	John McCain	R	Yea
Arkansas	Dale Bumpers	D	Nay
Arkansas	David Pryor	D	Nay
California	Alan Cranston	D	Nay
California	Pete Wilson	R	Yea
Colorado	William Armstrong	R	Yea
Colorado	Tim Wirth	D	Nay
Connecticut	Lowell P. Weicker	R	Nay
Connecticut	Christopher Dodd	D	Nay
Delaware	William Roth	R	Yea
Delaware	Joseph R. Biden	D	Nay
Florida	Lawton Chiles	D	Nay
Florida	Bob Graham	D	Nay
Georgia	Sam Nunn	D	Nay
Georgia	Wyche Fowler	D	Nay
Hawaii	Daniel Inouye	D	Nay
Hawaii	Spark Matsunaga	D	Nay
Idaho	Jim McClure	R	Yea
Idaho	Steve Symms	R	Yea
Illinois	Alan J. Dixon	D	Nay
Illinois	Paul M. Simon	D	Nay
Indiana	Richard Lugar	R	Yea
Indiana	J. Danforth Quayle	R	Yea
Iowa	Charles Grassley	R	Yea
Iowa	Tom Harkin	D	Nay
Kansas	Bob Dole	R	Yea
Kansas	Nancy Landon Kassebaum	R	Yea
Kentucky	Wendell H. Ford	D	Nay
Kentucky	Mitch McConnell	R	Yea
Louisiana	J. Bennett Johnston	D	Nay
Louisiana	John Breaux	D	Nay
Maine	William Cohen	R	Yea
Maine	George J. Mitchell	D	Nay
Maryland	Paul Sarbanes	D	Nay
Maryland	Barbara Mikulski	D	Nay
Massachusetts	Ted Kennedy	D	Nay
Massachusetts	John Kerry	D	Nay
Michigan	Don Riegle	D	Nay
Michigan	Carl Levin	D	Nay
Minnesota	Rudy Boschwitz	R	Yea
Minnesota	David Durenberger	R	Yea
Mississippi	John C. Stennis	D	Nay
Mississippi	Thad Cochran	R	Yea
Missouri	John Danforth	R	Yea
Missouri	Kit Bond	R	Yea
Montana	John Melcher	D	Nay
Montana	Max Baucus	D	Nay
Nebraska	David Karnes	R	Yea
Nebraska	Jim Exon	D	Nay
Nevada	Chic Hecht	R	Yea
Nevada	Harry Reid	D	Nay
New Hampshire	Gordon Humphrey	R	Yea
New Hampshire	Warren Rudman	R	Yea
New Jersey	Bill Bradley	D	Nay
New Jersey	Frank Lautenberg	D	Nay
New Mexico	Pete Domenici	R	Yea
New Mexico	Jeff Bingaman	D	Nay
New York	Daniel Patrick Moynihan	D	Nay
New York	Al D'Amato	R	Yea
North Carolina	Jesse Helms	R	Yea
North Carolina	Terry Sanford	D	Nay
North Dakota	Quentin Burdick	D	Nay
North Dakota	Kent Conrad	D	Nay
Ohio	John Glenn	D	Nay
Ohio	Howard Metzenbaum	D	Nay
Oklahoma	David Boren	D	Yea
Oklahoma	Don Nickles	R	Yea
Oregon	Mark Hatfield	R	Yea
Oregon	Bob Packwood	R	Nay
Pennsylvania	H. John Heinz, III	R	Yea
Pennsylvania	Arlen Specter	R	Nay
Rhode Island	John H. Chafee	R	Nay
Rhode Island	Claiborne Pell	D	Nay
South Carolina	Strom Thurmond	R	Yea
South Carolina	Fritz Hollings	D	Yea
South Dakota	Larry Pressler	R	Yea
South Dakota	Tom Daschle	D	Nay
Tennessee	Jim Sasser	D	Nay
Tennessee	Al Gore	D	Nay
Texas	Lloyd M. Bentsen	D	Nay
Texas	Phil Gramm	R	Yea
Utah	Jake Garn	R	Yea
Utah	Orrin Hatch	R	Yea
Vermont	Patrick Leahy	D	Nay
Vermont	Robert Stafford	R	Nay
Virginia	John Warner	R	Nay
Virginia	Paul Trible	R	Yea
Washington	Daniel J. Evans	R	Yea
Washington	Brock Adams	D	Nay
West Virginia	Robert C. Byrd	D	Nay
West Virginia	John D. Rockefeller, IV	D	Nay
Wisconsin	William Proxmire	D	Nay
Wisconsin	Bob Kasten	R	Yea
Wyoming	Malcolm Wallop	R	Yea
Wyoming	Alan K. Simpson	R	Yea

The history of Bork's disputed nomination is still a lightning rod in the contentious debate over the limits of the "Advice and Consent of the Senate" that Article Two of the United States Constitution requires for judicial nominees of the President.

Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.

"Bork" as a verb

William Safire of The New York Times attributes "possibly" the first use of 'Bork' as a verb to The Atlanta Journal-Constitution of August 20, 1987. Safire defines "to bork" by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before." This definition stems from the history of the fight over Bork's nomination. Bork was widely lauded for his competence, but reviled for his political philosophy. In March 2002, the word was added to the Oxford English Dictionary under "Bork"; its definition extends beyond judicial nominees, stating that people who Bork others "usually [do so] with the aim of preventing [a person's] appointment to public office."

Perhaps the best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court. She said, "We're going to bork him. We're going to kill him politically. . . . This little creep, where did he come from?" Thomas was subsequently confirmed after a contentious confirmation hearing.

24 years after Bork's nomination was rejected, in 2011, New York Times columnist Joe Nocera claimed that "[t]he Bork fight, in some ways, was the beginning of the end of civil discourse in politics... The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one." Nocera cited Democratic activist Ann Lewis who acknowledged that if Bork's nomination "were carried out as an internal Senate debate we would have deep and thoughtful discussions about the Constitution, and then we would lose."