The Bork Nomination (1987)

On 26 June 1987, Supreme Court Justice Lewis Powell announced that he would retire. Liberals were alarmed. President Ronald Reagan, a staunch conservative, had already appointed two justices — Sandra Day O’Connor in 1981 and Antonin Scalia in 1986, the latter at the same time that William Rehnquist was named to replace the retiring chief justice, Warren Burger. A moderate, Powell had voted with liberal justices on issues such as affirmative action and abortion. But Powell’s departure now meant that liberals could count on only four justices — Harry A. Blackmun, William J. Brennan, Thurgood Marshall and John Paul Stevens. The conservative wing of the court consisted of Rehnquist, O’Connor, Scalia and Byron White. With his selection of Powell’s replacement, President Reagan could swing the balance in favor of the conservatives — and no one doubted that he fervently desired to do just that.

Right-wing backers of the president had been disappointed in 1981 when Reagan chose O’Connor over Bork, but accepted the fact that this was the keeping of a campaign promise to put the first woman on the Court. Now the ultra-conservatives pressured the White House to name Bork, currently a District of Columbia federal appeals judge, to be the nation’s 104th Supreme Court justice. Meanwhile, Senator Edward Kennedy (D-Mass), a member of the Senate Judiciary Committee, warned that Congress was going to “ensure that President Reagan does the right thing instead of the far right thing in filling the vacancy that Justice Powell leaves.” And Senator Joe Biden (D-Del), chairman of the Judiciary Committee, announced long before the confirmation hearing got underway that he intended to vote against Bork. The battle lines were quickly drawn for what would prove to be one of the biggest political battles of Reagan’s second term.

Bork had his supporters in the administration, most notably Attorney General Edwin Meese and Assistant Attorney General William Bradford Reynolds. But the White House was caught in the maelstrom of the Iran-Contra scandal at the time, and pragmatists like the new chief of staff Howard Baker and Counsel Arthur B. Culvahouse had reservations when it came to supporting what would clearly be a controversial nomination. Reagan, however, manifested a determination to make Bork the nominee, come what may. This would probably be his last chance to fundamentally change the makeup of the Supreme Court.

Born in 1927, Bork earned a law degree at the University of Chicago in 1953, joined a Chicago law firm, and then the Yale Law School faculty. In 1973, as Solicitor General — the lawyer charged with representing the United States in cases that came before the Supreme Court — he was called upon by President Richard Nixon to fire Watergate Special Prosecutor Archibald Cox. Both Attorney General Elliot Richardson and the deputy attorney general, William Ruckelshaus, had previously refused to carry out Nixon’s orders, but Bork did the deed. Remaining the solicitor general until 1977, he then returned to Yale to teach, and in 1982 was chosen to serve as a federal appellate judge. Throughout his career Bork was highly critical of the judicial activism practiced by the Supreme Court in milestone cases involving abortion, affirmative action and civil rights. Bork claimed he was a strict constructionist who would exercise “judicial restraint.” In his view, too many judges (and Supreme Court justices) had been interpreting the intent of the Constitution much too broadly. He opposed the 1965 Supreme Court decision in Griswold v. Connecticut, which established a broad right of privacy that was not stated in the Constitution.  Bork was also a foe of Roe v. Wade, the 1973 Supreme Court decision that gave women the right to have an abortion, calling the decision “a serious and wholly unjustifiable usurpation of state legislative authority.” The courts, he felt, should not thwart the will of the popularly-elected lawmakers, and judges ought not to substitute their values for the “original intent” of the Constitution’s framers. What made Bork dangerous from the liberal perspective was the undeniable fact that he was one of the most astute legal scholars in the country; the American Bar Association (ABA) had given him its highest rating: “exceptionally well-qualified.”

As Bork’s September 15 confirmation hearing approached, liberal and conservative pressure groups spent an unprecedented $20 million in campaigns to either demonize or praise the candidate. The AFL-CIO, the American Civil Liberties Union, Common Cause, the NAACP and the National Organization of Women was just a few of the organizations who hurled themselves into the fray in order to prevent Bork’s ascension to the highest court in the land. They argued that the Ninth Amendment, which states that the “enumeration . . . of certain rights” in the Constitution “shall not be construed to deny or disparage others retained by the people,” justified judicial activism. In other words, the Constitution acknowledged unidentified rights and it was up to the Supreme Court to define and defend them in keeping with the premise that Americans should live in a free society where all people were equally protected under the law. Bork’s opinions and writings, said his critics, revealed a man who posed a serious threat to basic principles of social justice.

The American public gave mixed signals when polled about the Bork controversy. A Gallup poll on the eve of the confirmation hearings revealed that two out of three could not even name Reagan’s candidate for the Supreme Court. By a 52-40 percent margin, those polled agreed with the concept of judicial restraint in accordance with the “original intent” of the Constitution, but at the same time favored by a 52-42 percent spread the Supreme Court’s decision to allow a woman to end a pregnancy – -a right nowhere enunciated in the Constitution.

Among the fourteen members of the Judiciary Committee, Biden, Kennedy, Howard Metzenbaum (D-Ohio) and Paul Simon (D-Ill) were staunchly opposed to Bork’s nomination while Strom Thurmond (R-SC) and Orrin Hatch (R-Utah) were his most fervent supporters. The swing votes appeared to rest with Democrats Howell Heflin of Alabama and Dennis DeConcini of Arizona as well as with Republican Arlen Specter of Pennsylvania. There was many who felt Bork’s erudition and quick wit made him more than a match for the legislators who would question him.

In his five days of testimony — the longest confirmation hearing for any Supreme Court nominee since hearings began in 1939 — Bork surprised everyone. He modified many of his most controversial views. Whereas in 1971 he had argued that constitutional protection of free speech applied only to that which was political in nature, in 1987 he conceded that First Amendment guarantees applied to news, opinion, literature and more. He had claimed that the “equal protection” clause of the Fourteenth Amendment should apply only to racial and not gender discrimination; during the hearing he stated that equal protection should in fact apply also to women. Bork’s approach to the hearing was in keeping with the decision by the White House to avoid an ideological fight and tout the nominee as a moderate. This soft sell did not sit well with Bork’s supporters, his detractors, or the undecided senators.

Another week of testimony by a hundred witnesses followed Bork’s appearance.  Among them was William T. Coleman, a prominent black Republican attorney and a strong supporter of Reagan. But Coleman broke ranks with the president this time, speaking out in opposition to confirmation. “When it has counted,” he wrote in a New York Times op-ed piece, “Robert Bork has often stood against the aspirations of blacks to achieve their constitutional rights.” Former Texas congresswoman Barbara Jordan and Atlanta mayor Andrew Young also testified against the nominee. When Senators Specter, Heflin and DeConcini joined the anti-Bork contingent of the Judiciary Committee, the White House hinged its hopes on the full Senate’s vote. The Democrats had regained control of the Senate by a 54 to 46 margin in the 1986 elections, so Reagan counted on the conservative southern Democrats who had supported his tax and budget cuts — to save the day for Bork. But polls showed that a majority of southern whites opposed Bork, so the Democratic senators from the south faced no political backlash at home by voting against confirmation.

On October 6, the Judiciary Committee voted 9 to 5 against confirming Bork and most of the judge’s supporters, realizing that a full vote in the Senate would also go against their man, expected Bork to withdraw from the process. But Bork announced he would continue the fight, though he was disappointed by waning support from the White House. “A crucial principle is at stake,” he said, articulating his view that the selection process should not be corrupted by “campaigns of distortion” like the one being waged against him. On October 23, the Senate voted 58-42 against the nomination.

Conservatives blamed moderates in the White House — Chief of Staff Howard Baker in particular — for botching the Bork nomination and allowing the opposition to wage a highly successful national campaign to demonize the judge. “The next nominee had better be somebody as conservative as Bork,” warned right-wing activist Richard Viguerie. “Or else life at the White House is going to be very unpleasant.” The administration substituted Douglas Ginsburg, a colleague of Bork’s on the D.C. Court of Appeals and a man whose views were sure to please conservatives. But Ginsburg’s nomination had a lifespan of nine days. The revelation that he had smoked marijuana in the 1970s as a professor at Harvard and that he had very limited trial experience resulted in his withdrawal. Reagan’s third try, Anthony Kennedy, had been twelve years on the Ninth Circuit Court of Appeals in California. Though a conservative, Kennedy had an expansive view of constitutional rights sufficient to placate liberal groups; only the National Organization of Women opposed him. Kennedy’s confirmation went without a hitch.

On February 5, 1988 Robert Bork left the bench. He became a resident scholar at the American Enterprise Institute, prospered on the lecture circuit, and wrote The Tempting of America: The Political Seduction of the Law, in which he exposed what he saw as the evils of liberalism in American legal culture. The defeat of his bid for the Supreme Court was a battle in the culture wars that were hotly contested by liberals and conservatives during the Eighties. In the Reagan Era, liberals saw the Court as a last bastion for the defense of hard-won civil rights and social justice. For this reason they went to extraordinary lengths to defeat Bork. Whether the end justified the means depends on one’s point of view.

The Rhetoric

Senator Edward Kennedy — “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, children could not be taught about evolution.”

Attorney General Edwin Meese III — “The distortion of the process was done completely by this small band of special-interest lobbyists and left-wing groups who engaged in a highly-organized, well financed political campaign . . . . The important thing now is to be sure the public and the Senate recognize the kind of gutter politics that was played by some of these left-wing groups. There’s never been anything like it in history.”

The Washington Post (editorial) — “Judge Bork has retained from his academic days an almost frightening detachment from, not to say indifference toward, the real-world consequences of his views . . . . What people . . . needed . . . was simple assurance that, in addition to the forensic brilliance, the personal integrity, and the care of the law, Robert Bork’s moral sensibility could be engaged . . . that he had a feeling for justice, not just for the law. They are not always the same.”

Judge Robert H. Bork — “Liberal, moderate, conservative shouldn’t apply to judging. The correct philosophy is to judge according to the intent of the legislature or the intent of the Constitution’s framers. Judges are overwhelmingly from a very narrow segment of society, and if they begin to read their own ideals into the law, then most of society isn’t represented.”
REFERENCES

Newsweek, 13 July 1987, 14 September 1987, 12 November 1987

Time, 13 July 1987, 24 August 1987, 21 September 1987, 28 September 1987, 5 October 1987, 12 October 1987

U.S. News & World Report, 17 August 1987, 24 August 1987, 14 September 1987, 21 September 1987, 19 October 1987

Battle For Justice: How The Bork Nomination Shook America

Ethan Bronner (New York: W.W. Norton, 1989)

Ninth Justice: The Fight for Bork

Patrick B. McGuigan & Dawn M. Weyrich (Washington, DC: Free Congress Research & Education Foundation, 1991)

People Rising: The Campaign Against the Bork Nomination

Michael Pertshuk & Wendy Schaetzel (New York: Thunder’s Mouth Press, 1989)

Packing the Courts: The Conservative Campaign to Rewrite the Constitution

Herman Schwartz (New York: Charles Scribner’s Sons, 1988)