Robert Bork Supreme Court nomination

Robert Bork Supreme Court nomination
President Ronald Reagan announces from the White House Press Room Bork's nomination on July 1, 1987
Nominee	Robert Bork
Nominated by	Ronald Reagan (President of the United States)
Succeeding	Lewis F. Powell Jr. (Associate Justice of the Supreme Court of the United States)
Date nominated	July 1, 1987
Date rejected	October 23, 1987
Outcome	Rejected by the U.S. Senate
Senate Judiciary Committee motion to report favorably
Votes in favor	5
Votes against	9
Result	Rejected
Senate Judiciary Committee motion to report unfavorably
Votes in favor	9
Votes against	5
Result	Approved
Senate confirmation vote
Votes in favor	42
Votes against	58
Result	Rejected

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

United States Supreme Court Associate Justice Lewis F. Powell Jr., was considered a conservative/​moderate, but 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. Some journalists and correspondents believed that if Reagan nominated Bork in 1986, Bork would have likely made the Supreme Court as the Senate was led by the Republicans. However, the Senate Democrats may still have fought to defeat Bork in 1986, and Republicans' Senate majority at the time was very narrow (53–47) which implies that maybe Bork still would have been defeated in 1986, especially given that the six Republicans ^[8] who voted against Bork's 1987 nomination were also serving in 1986. ^[9]

Response to the nomination

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. ^[10]

Bork responded, "There was not a line in that speech that was accurate." ^[11] 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). ^{[12] [13]}

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." ^[14] 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". ^[15] 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, ^[16] the attacks went unanswered for two and a half months. ^[17]

Judiciary Committee review

See also: Senate Judiciary Committee reviews of nominations to the Supreme Court of the United States

Confirmation hearings

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. ^[18] 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, ^[19] 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, a list of videotapes Bork had rented 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 . ^{[20] [21]}

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. ^[22] 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. ^[23]

As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing. ^[24] 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. ^[25] 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. ^{[25] [26]} Rejecting some of the arguments that other Bork opponents were making, ^[24] 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. ^[26]

Committee vote

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. ^{[27] [28]}

Senate Judiciary Committee vote to report the Bork nomination favorably
October 6, 1987	Party		Total votes
	Democratic	Republican
Yea	0	5	5
Nay	8	1	9
Result: Failed
Roll call vote on the nomination Senator Party State Vote Joe Biden D Delaware Nay Robert Byrd D West Virginia Nay Dennis DeConcini D Arizona Nay Chuck Grassley R Iowa Yea Orrin Hatch R Utah Yea Howell Heflin D Alabama Nay Gordon J. Humphrey R New Hampshire Yea Ted Kennedy D Massachusetts Nay Patrick Leahy D Vermont Nay Howard Metzenbaum D Ohio Nay Paul Simon D Illinois Nay Alan Simpson R Wyoming Yea Arlen Specter R Pennsylvania Nay Strom Thurmond R South Carolina Yea

Senate Judiciary Committee vote to report the Bork nomination unfavorably
October 6, 1987	Party		Total votes
	Democratic	Republican
Yea	8	1	9
Nay	0	5	5
Result: Passed
Roll call vote on the nomination Senator Party State Vote Joe Biden D Delaware Yea Robert Byrd D West Virginia Yea Dennis DeConcini D Arizona Yea Chuck Grassley R Iowa Nay Orrin Hatch R Utah Nay Howell Heflin D Alabama Yea Gordon J. Humphrey R New Hampshire Nay Ted Kennedy D Massachusetts Yea Patrick Leahy D Vermont Yea Howard Metzenbaum D Ohio Yea Paul Simon D Illinois Yea Alan Simpson R Wyoming Nay Arlen Specter R Pennsylvania Yea Strom Thurmond R South Carolina Nay

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. ^[23] 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. ^[29]

Full Senate vote

Senator Bob Graham of Florida presiding over the Senate during the vote on Bork's nomination

On October 23, 1987, the Senate rejected Robert Bork's nomination to the Supreme Court by a vote of 42–58. ^[28] Altogether, two Democrats and 40 Republicans voted in favor of confirmation, whereas 52 Democrats and six Republicans voted against. ^{[30] [31]}

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: [30] [31]

Impact

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). ^[32] He was subsequently confirmed by the Senate by a 97–0 vote. ^[33]

The Bork confirmation vote was one of the most controversial votes on a Supreme Court nominee in Senate 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." ^[34]

Decades later, the failure of Bork's nomination is seen through a deeply partisan lens:

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. ^[35]

"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. In fact, the word had appeared a few days earlier, in a newspaper opinion piece dated August 11. ^{[36] [ 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". ^[37] This definition stems from the history of the fight over Bork's nomination. ^[16] 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".

A notable 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?" ^[38] Thomas was subsequently confirmed after a contentious confirmation hearing.

References

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. "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. John Chafee, Bob Packwood, Arlen Specter, Robert Stafford, John Warner, and Lowell Weicker.
9. Somin, Ilya (December 20, 2012). "The Volokh Conspiracy" . Retrieved December 20, 2012.
10. Reston, James (July 5, 1987). "WASHINGTON; Kennedy And Bork". The New York Times. Retrieved April 28, 2008.
11. Lexington (August 29, 2009). "A hell of a senator". The Economist. Archived from the original on August 30, 2009.
12. 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.
13. 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.
14. "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.
15. Damon W. Root (September 9, 2008). "Straight Talk Slowdown". Reason. Retrieved October 26, 2008.
16. Miranda, Manuel (August 24, 2005). "The Original Borking". The Wall Street Journal . Retrieved August 10, 2007.
17. Chaddock, Gail Russell (July 7, 2005). "Court nominees will trigger rapid response". Christian Science Monitor . Retrieved August 10, 2007.
18. "ACLU Opposes Nomination of Judge Alito". American Civil Liberties Union. Archived from the original on April 6, 2007. Retrieved August 17, 2007.
19. "New Views Emerge of Bork's Role in Watergate Dismissals", The New York Times.
20. "The Bork Tapes Saga". The American Porch. Archived from the original on October 9, 2007. Retrieved August 17, 2007.
21. 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.
22. "Robert Bork's Views on a Wide Range of Legal Issues, in His Own Words". The New York Times. September 13, 1987. ISSN   0362-4331 . Retrieved April 20, 2019.
23. The Eighties Club: 34. The Bork Nomination, by Jason Manning
24. Almanac of American Politics 2008, p. 364.
25. 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.
26. Greenhouse, Linda (October 8, 1987). "Washington Talk: The Bork Hearings; For Biden: Epoch of Belief, Epoch of Incredulity". The New York Times .
27. "Judiciary Committee Votes On Recent Supreme Court Nominees". Washington, D.C.: U.S. Senate Committee on the Judiciary. Retrieved April 12, 2022.
28. 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.
29. "Bork Gives Reasons for Continuing Fight". The New York Times . Associated Press. October 10, 1987.
30. "Senate's Roll-Call On the Bork Vote". The New York Times. Associated Press. October 24, 1987. Retrieved June 3, 2019.
31. "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.
32. "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.
33. "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.
34. Joe Nocera, The Ugliness Started With Bork New York Times October 21, 2011
35. Senior, Jennifer (September 22, 2020). "The Ginsburg-Scalia Act Was Not a Farce". The New York Times. No. 9/22/2020.
36. Stone, Chuck (August 11, 1987). "Borking the Constitution". Index-Journal. Greenwood, South Carolina. p. 4.
37. 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.
38. "The Borking Begins". The Wall Street Journal. Retrieved August 17, 2007.

Further reading

• Gitenstein, Mark (1992). Matters of Principle: An Insider's Account of America's Rejection of Robert Bork's Nomination to the Supreme Court. New York: Simon & Schuster. ISBN   0-671-67424-2.
• Guliuzza, Frank III; Reagan, Daniel J.; Barrett, David M. (1992). "Character, Competency, and Constitutionalism: Did the Bork Nomination Represent a Fundamental Shift in Confirmation Criteria?". Marquette Law Review. 75 (2): 409–437.
• Silverstein, Mark (2007). Judicious Choices: The New Politics of Supreme Court Confirmations (Second ed.). New York: W. W. Norton. ISBN   978-0-393-93044-3.
• Vieira, Norman; Gross, Leonard (1998). Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations. Carbondale: Southern Illinois University Press. ISBN   0-8093-2204-8.

External links

• Bork Confirmation Hearing on C-SPAN