Robert Bork Supreme Court nomination

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search

President Ronald Reagan announces from the White House Press Room the nomination of Robert Bork as Associate Justice of the Supreme Court on July 1, 1987

On July 1, 1987, President Ronald Reagan nominated Judge Robert Bork for Associate Justice of the Supreme Court of the United States, to succeed Lewis F. Powell Jr., who had earlier announced his retirement. At the time of his nomination, Bork was a judge on the United States Court of Appeals for the District of Columbia Circuit, a position to which he had been appointed by President Reagan in 1982.

Bork's nomination precipitated contentious debate. Opposition to his nomination centered on his perceived willingness to roll back the civil rights rulings of the Warren and Burger courts, and his role in the Saturday Night Massacre during the Watergate scandal. On October 23, 1987, the United States Senate rejected Robert Bork's nomination to the Supreme Court by a roll-call vote of 42–58. This is the most recent Supreme Court nomination to be rejected by vote of the Senate.[1]

Reagan subsequently announced his intention to nominate Douglas H. Ginsburg to succeed Powell, but Ginsburg withdrew from consideration following revelations of his earlier marijuana use. Instead, Reagan nominated Anthony Kennedy, who was viewed as a mainstream conservative Republican. Kennedy was unanimously confirmed in February 1988.[2]

Nomination[edit]

United States Supreme Court Associate Justice Lewis F. Powell Jr., was considered a conservative/​moderate, but often referred to as the "swing vote" in close decisions at the time. After he announced his retirement on June 26, 1987,[3] Senate Democrats asked liberal leaders to form a "solid phalanx" to oppose an "ideological extremist" replacement for Powell. Democrats warned Reagan there would be a fight over the nomination if Bork became the nominee.[4]

President Reagan nominated Bork for Powell's seat on July 1, 1987.[5] Bork had long been interested in the position; President Richard Nixon promised him the next seat on the Supreme Court, following Bork's compliance in firing Special Prosecutor Archibald Cox during the controversial "Saturday Night Massacre" of October 1973. Nixon was unable to carry out the promise before his resignation on August 9, 1974.[6] When the next Supreme Court vacancy occurred under President Gerald Ford, due to the retirement of William O. Douglas in 1975, civil rights groups expressed deep opposition to Bork being nominated, and Douglas' seat went to John Paul Stevens.[7] Bork was also a finalist to be nominated in 1986 after Reagan nominated then-Associate Justice William Rehnquist to be Chief Justice of the United States after the resignation of Warren Burger, but Reagan nominated Antonin Scalia for Rehnquist's associate justice seat.

Response to the nomination[edit]

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, and schoolchildren could not be taught about evolution, writers and artists would 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.[8]

Bork responded, "There was not a line in that speech that was accurate."[9] In 1988, an analysis published in the Western Political Quarterly of amicus curiae briefs filed by U.S. Solicitors General during the Warren and Burger Courts found that during Bork's tenure in the position during the Nixon and Ford Administrations (1973–1977), Bork took liberal positions in the aggregate as often as Thurgood Marshall did during the Johnson Administration (1965–1967), and more often than Wade H. McCree did during the Carter Administration (1977–1981), in part because Bork filed briefs in favor of the litigants in civil rights cases 75 percent of the time (contradicting a previous review of his civil rights record published in 1983).[10][11]

On July 5, 1987, NAACP executive director Benjamin Hooks described their position on the Bork nomination: "We will fight it all the way – until hell freezes over, and then we'll skate across on the ice."[12] A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. Bork later said in his 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".[13] TV ads produced by People For the American Way, and narrated by Gregory Peck, attacked Bork as an extremist. Along with Kennedy's speech, these ads 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,[14] the attacks went unanswered for two and a half months.[15]

Confirmation hearings[edit]

A heated debate over Bork's nomination ensued, partly fueled by strong opposition by civil and women's rights groups concerned with Bork's perceived willingness to roll back civil rights rulings of the Warren and Burger courts, and his opposition to the federal government's right to impose standards of voting fairness upon the states.

Bork is one of only four Supreme Court nominees to ever be opposed by the ACLU, along with William Rehnquist, Samuel Alito, and Brett Kavanaugh.[16] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy", particularly the notion of the President of the United States having unrestrained authority, especially unitary executive theory,[17] as demonstrated by his role in the "Saturday Night Massacre" when he fired the then-United States Special Prosecutor, Archibald Cox during Richard Nixon's Watergate scandal to protect Nixon from being investigated in the Watergate scandal. Bork's firing of Cox was ruled illegal in Nader v. Bork, by the United States District Court for the District of Columbia soon afterwards.

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 as a response. The leak was inspired by Bork's opposition to privacy protections beyond those explicitly outlined in the constitution. 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 gathered and published by writer Michael Dolan, who worked for Washington, D. C.'s, City Paper.[18][19]

To pro-choice legal groups, Bork's originalist views, and his belief that the Constitution does not protect a "right to privacy" were viewed as a clear signal that, should he become a justice of the Supreme Court, he would vote to completely overrule the Supreme Court's 1973 decision Roe v. Wade. These groups also claimed that Bork's marriage to Mary Ellen Pohl, a former Roman Catholic nun and anti-abortion supporter would allow her to influence his decisions on the abortion issue. Bork himself became a Catholic in July 2003. Accordingly, a large number of left-wing groups mobilized to press for Bork's rejection, and his confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade.[20] 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.[21]

As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing.[22] 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.[23] At the close of the hearings, 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.[23][24] Rejecting some of the arguments that other Bork opponents were making,[22] Biden framed his discussion around the belief that the 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.[24]

Senate votes[edit]

Committee[edit]

On October 6, the Senate Judiciary Committee held two votes on the Bork nomination. The committee first voted on a motion to send the nomination to the floor with a favorable recommendation, which was defeated 5–9. It next voted on a motion to send the nomination to the floor with an unfavorable recommendation, which passed 9–5. Republican Arlen Specter voted with the Democratic majority on both votes.[25][26]

Following the decisive vote, Bork's political support in the Senate quickly eroded, making the nomination's ultimate defeat all but certain, and it was widely expected that he would withdraw his name from further consideration.[21] Nonetheless, on October 9, 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.[27]

Full Senate[edit]

On October 23, 1987, the Senate rejected Robert Bork's nomination to the Supreme Court by a vote of 58–42.[26] Altogether, two Democrats and 40 Republicans voted in favor of confirmation, whereas 52 Democrats and six Republicans voted against.[28][29]

Vote to confirm the Bork nomination
October 23, 1987 Party Total votes
Democratic Republican
Yea 02 40 42
Nay 52 06 58
Result: Rejected
Roll call vote on the nomination
Senator Party State Vote
Brock Adams D Washington Nay
William L. Armstrong R Colorado Yea
Max Baucus D Montana Nay
Lloyd Bentsen D Texas Nay
Joe Biden D Delaware Nay
Jeff Bingaman D New Mexico Nay
Kit Bond R Missouri Yea
David Boren D Oklahoma Yea
Rudy Boschwitz R Minnesota Yea
Bill Bradley D New Jersey Nay
John Breaux D Louisiana Nay
Dale Bumpers D Arkansas Nay
Quentin Burdick D North Dakota Nay
Robert Byrd D West Virginia Nay
John Chafee R Rhode Island Nay
Lawton Chiles D Florida Nay
Thad Cochran R Mississippi Yea
William Cohen R Maine Yea
Kent Conrad D North Dakota Nay
Alan Cranston D California Nay
Al D'Amato R New York Yea
John Danforth R Missouri Yea
Tom Daschle D South Dakota Nay
Dennis DeConcini D Arizona Nay
Alan J. Dixon D Illinois Nay
Chris Dodd D Connecticut Nay
Bob Dole R Kansas Yea
Pete Domenici R New Mexico Yea
David Durenberger R Minnesota Yea
Daniel J. Evans R Washington Yea
J. James Exon D Nebraska Nay
Wendell Ford D Kentucky Nay
Wyche Fowler D Georgia Nay
Jake Garn R Utah Yea
John Glenn D Ohio Nay
Al Gore D Tennessee Nay
Bob Graham D Florida Nay
Phil Gramm R Texas Yea
Chuck Grassley R Iowa Yea
Tom Harkin D Iowa Nay
Orrin Hatch R Utah Yea
Mark Hatfield R Oregon Yea
Chic Hecht R Nevada Yea
Howell Heflin D Alabama Nay
John Heinz R Pennsylvania Yea
Jesse Helms R North Carolina Yea
Ernest Hollings D South Carolina Yea
Gordon J. Humphrey R New Hampshire Yea
Daniel Inouye D Hawaii Nay
J. Bennett Johnston D Louisiana Nay
David Karnes R Nebraska Yea
Nancy Kassebaum R Kansas Yea
Bob Kasten R Wisconsin Yea
Ted Kennedy D Massachusetts Nay
John Kerry D Massachusetts Nay
Frank Lautenberg D New Jersey Nay
Patrick Leahy D Vermont Nay
Carl Levin D Michigan Nay
Richard Lugar R Indiana Yea
Spark Matsunaga D Hawaii Nay
John McCain R Arizona Yea
James A. McClure R Idaho Yea
Mitch McConnell R Kentucky Yea
John Melcher D Montana Nay
Howard Metzenbaum D Ohio Nay
Barbara Mikulski D Maryland Nay
George J. Mitchell D Maine Nay
Daniel Patrick Moynihan D New York Nay
Frank Murkowski R Alaska Yea
Don Nickles R Oklahoma Yea
Sam Nunn D Georgia Nay
Bob Packwood R Oregon Nay
Claiborne Pell D Rhode Island Nay
Larry Pressler R South Dakota Yea
William Proxmire D Wisconsin Nay
David Pryor D Arkansas Nay
Dan Quayle R Indiana Yea
Harry Reid D Nevada Nay
Donald Riegle D Michigan Nay
Jay Rockefeller D West Virginia Nay
William Roth R Delaware Yea
Warren Rudman R New Hampshire Yea
Terry Sanford D North Carolina Nay
Paul Sarbanes D Maryland Nay
Jim Sasser D Tennessee Nay
Richard Shelby D Alabama Nay
Paul Simon D Illinois Nay
Alan Simpson R Wyoming Yea
Arlen Specter R Pennsylvania Nay
Robert Stafford R Vermont Nay
John C. Stennis D Mississippi Nay
Ted Stevens R Alaska Yea
Steve Symms R Idaho Yea
Strom Thurmond R South Carolina Yea
Paul Trible R Virginia Yea
Malcolm Wallop R Wyoming Yea
John Warner R Virginia Nay
Lowell Weicker R Connecticut Nay
Pete Wilson R California Yea
Tim Wirth D Colorado Nay
Sources: [28][29]

Impact[edit]

President Reagan's address to the nation from the Oval Office regarding the Bork Supreme Court nomination on October 14, 1987

The following month, President Reagan nominated Judge Anthony Kennedy for the position on the Court (after the name of a second nominee, Douglas H. Ginsburg, was withdrawn).[30] He was subsequently confirmed by the Senate by a 97–0 vote.[31]

The October 1987 Bork confirmation vote was one of the most controversial votes on a Supreme Court nominee in its history.[2] Unhappy with his treatment during the nomination process, Bork resigned his appellate court judgeship the following year.

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 wrote 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."[32]

Political scientist Scott Lemieux, writing in The American Prospect, disputes the view of Bork as a victim of "allegedly unfair treatment ... [leading] to a new area of political incivility," arguing that Bork's originalism was "for the most part intellectually shallow and politically motivated." Arguing that all of Kennedy's harsh charges were grounded in Bork's published legal opinions, he wrote that there was "no reason for Democrats to abjure accurate statements merely because they're put in stark enough terms to be politically effective."[33]

Decades later, the failure of Bork's nomination is seen through a deeply partisan lens, perceived as both a watershed moment for partisanship in judicial nominations, and as a risky ideological gambit by the Reagan administration:

The Republicans claimed, with not a little justification, that this was the first time a jurist was rejected for his views, rather than a lack of qualifications; the Democrats claimed, with not a little justification, that it was precisely those inflammatory views that attracted Ronald Reagan to him in the first place – that Bork's nomination itself was a provocation.[34]

"Bork" as a verb[edit]

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. In fact, the word had appeared a few days earlier, in a newspaper opinion piece dated August 11.[35][original research?] 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".[36] This definition stems from the history of the fight over Bork's nomination.[14] 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?"[37] However, Thomas was subsequently confirmed after a contentious confirmation hearing.

References[edit]

  1. ^ Fink, Jenni (September 26, 2020). "How Many Nominees Has the Senate Rejected From Serving on the Supreme Court?". Newsweek. Retrieved April 12, 2022.
  2. ^ a b "On This Day: Senate rejects Robert Bork for the Supreme Court". Constitution Daily. Philadelphia, Pennsylvania: The National Constitution Center. October 23, 2018. Retrieved June 3, 2019.
  3. ^ "Powell to leave Supreme Court". Milwaukee Journal. Associated Press. June 26, 1987. p. 1A.
  4. ^ Fuerbringer, Jonathan (June 30, 1987). "Byrd Says Bork Nomination Would Face Senate Trouble". New York Times. Retrieved February 14, 2016.
  5. ^ "Conservative nominated to court". Eugene Register-Guard. Oregon. Washington Post. July 2, 1987. p. 1A.
  6. ^ Sherman, Mark (February 26, 2013). "Bork: Nixon Offered Next High Court Vacancy in '73". Yahoo! News. Associated Press. Archived from the original on January 28, 2022. Retrieved May 6, 2022.
  7. ^ "A Woman To Replace the 'Irreplaceable'". The San Francisco Examiner, November 23, 1975, p. 8
  8. ^ Reston, James (July 5, 1987). "WASHINGTON; Kennedy And Bork". The New York Times. Retrieved April 28, 2008.
  9. ^ Lexington (August 29, 2009). "A hell of a senator". The Economist. Archived from the original on August 30, 2009.
  10. ^ Segal, Jeffrey A. (1988). "Amicus Curiae Briefs by the Solicitor General during the Warren and Burger Courts: A Research Note". The Western Political Quarterly. SAGE Publications. 41 (1): 135–144. doi:10.2307/448461. JSTOR 448461.
  11. ^ O'Connor, Karen (1983). "The Amicus Curiae Role of the U.S. Solicitor General in Supreme Court Litigation". Judicature. 66: 256–264. Retrieved August 30, 2019.
  12. ^ "NAACP to Fight Bork 'Til Hell Freezes Over'". The Philadelphia Inquirer. Daily News Wire Services. July 6, 1987. Archived from the original on April 13, 2016. Retrieved October 11, 2015.
  13. ^ Damon W. Root (September 9, 2008). "Straight Talk Slowdown". Reason. Retrieved October 26, 2008.
  14. ^ a b Miranda, Manuel (August 24, 2005). "The Original Borking". The Wall Street Journal. Retrieved August 10, 2007.
  15. ^ Chaddock, Gail Russell (July 7, 2005). "Court nominees will trigger rapid response". Christian Science Monitor. Retrieved August 10, 2007.
  16. ^ "ACLU Opposes Nomination of Judge Alito". American Civil Liberties Union. Archived from the original on April 6, 2007. Retrieved August 17, 2007.
  17. ^ "New Views Emerge of Bork's Role in Watergate Dismissals", The New York Times.
  18. ^ "The Bork Tapes Saga". The American Porch. Archived from the original on October 9, 2007. Retrieved August 17, 2007.
  19. ^ Peterson, Andrea (April 28, 2014). "How Washington's last remaining video rental store changed the course of privacy law". The Washington Post. Retrieved January 8, 2018.
  20. ^ Times, Special to the New York (September 13, 1987). "Robert Bork's Views on a Wide Range of Legal Issues, in His Own Words". The New York Times. ISSN 0362-4331. Retrieved April 20, 2019.
  21. ^ a b The Eighties Club: 34. The Bork Nomination, by Jason Manning
  22. ^ a b Almanac of American Politics 2008, p. 364.
  23. ^ a b Bronner, Ethan (1989). Battle for Justice: How the Bork Nomination Shook America. W. W. Norton. ISBN 0-393-02690-6. pp. 138–139, 214, 305.
  24. ^ a b Greenhouse, Linda (October 8, 1987). "Washington Talk: The Bork Hearings; For Biden: Epoch of Belief, Epoch of Incredulity". The New York Times.
  25. ^ "Judiciary Committee Votes On Recent Supreme Court Nominees". Washington, D.C.: U.S. Senate Committee on the Judiciary. Retrieved April 12, 2022.
  26. ^ a b McMillion, Barry J. (March 8, 2022). "Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President" (PDF). Washington, D.C.: Congressional Research Service. Retrieved March 10, 2022.
  27. ^ "Bork Gives Reasons for Continuing Fight". The New York Times. Associated Press. October 10, 1987.
  28. ^ a b "Senate's Roll-Call On the Bork Vote". The New York Times. Associated Press. October 24, 1987. Retrieved June 3, 2019.
  29. ^ a b "Senate Rejects Bork, 58–42: Six Republicans Bolt Party Ranks to Oppose Judge". Los Angeles Times. Associated Press. October 23, 1987. Retrieved June 3, 2019.
  30. ^ "Reagan, on 3rd Try, Picks Californian for High Court: "Bit Wiser" After Two Defeats". The Los Angeles Times. Associated Press. November 11, 1987. Retrieved June 3, 2019.
  31. ^ "Senate confirms Kennedy: Reagan's 3rd choice for Supreme Court OK'd unanimously". The Milwaukee Journal. Associated Press. February 3, 1988. Retrieved June 3, 2019 – via Google News.
  32. ^ Joe Nocera, The Ugliness Started With Bork New York Times October 21, 2011
  33. ^ "Robert Bork, Martyr of Incivility?". December 19, 2012.
  34. ^ Senior, Jennifer. "The Ginsburg-Scalia Act Was Not a Farce". The New York Times. No. 9/22/2020.
  35. ^ Stone, Chuck (August 11, 1987). "Borking the Constitution". Index-Journal. Greenwood, South Carolina. p. 4.
  36. ^ WILLIAM SAFIRE (May 27, 201). "ON LANGUAGE: Judge fights "borking" needed to stop court packing? THE END OF MINORITY". New York Times. p. SM12. ProQuest 383739671.
  37. ^ "The Borking Begins". The Wall Street Journal. Retrieved August 17, 2007.

Further reading[edit]

External links[edit]