Borked

Brian Balogh: Major funding for Back Story is provided by an anonymous donor, the National Endowment for the Humanities, the University of Virginia, and the Robert and Joseph Cornell Memorial Foundation.
From Virginia Humanities, this is Back Story.

Joanne Freeman: Welcome to Back Story, the show that explains the history behind today’s headlines. I’m Joanne Freeman.

Brian Balogh: I’m Brian Balogh.

Ed Ayers: And I’m Ed Ayers.

Joanne Freeman: On June 26th, 1987, Justice Lewis Powell announced his retirement from the Supreme Court. The “courtly southerner,” as one news outlet described him, had been the swing vote for the nine ideologically divided justices. Given Powell’s role on the bench, Americans were anxious to hear who President Ronald Reagan would tap to fill the empty seat.
Within days, he named conservative judge Robert Bork as his pick for the job, setting off a contentious nomination battle. Senate Democrats feared Bork would move the court and the law of the land decisively to the right.

Senator 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 [crosstalk 00:01:16]-

Ed Ayers: This is Senator Edward Kennedy speaking out against Bork’s nomination less than an hour after it was announced.

Senator Kennedy: … and school children could not be taught about evolution.

Nina Totenberg: And what it did was, it froze things.

Ed Ayers: That’s NPR legal affairs correspondent Nina Totenberg.

Nina Totenberg: Politicians went, “I’m not sure I want to get way out in front of this. I think I’ll just wait.”
In the meantime, Kennedy, who was an incredibly hard worker, started working the phones to make sure that happened, talking to leading interest group people, talking to moderate republicans.

Jeffery Rosin: And it just was a constitutional drama unlike any we’ve ever seen before.

Ed Ayers: Jeffery Rosin is President of the National Constitution Center. In December of 1987, he interned for Senate Judiciary Committee Chair Joseph Biden. This gave him a front row seat for the Bork drama.

Jeffery Rosin: There had been contested hearings before.

Nina Totenberg: But this was the first one in modern memory, when out and out, front and center, there was an ideological fight.

Jeffery Rosin: Bork had been an extremely prolific and opinionated scholar who had expressed views about all the contested issues about constitutional law.

Nina Totenberg: He had opposed the public accommodations provisions of the civil rights act.

Jeffery Rosin: He’d questioned landmarks of the Warren and Berger eras, including, most notably, the Griswold decision creating a constitutional right to privacy.

Nina Totenberg: He had written a lot of things that were considered just unacceptable to large numbers of people, and not just liberal democrats.

Brian Balogh: Bork’s supporters welcomed the prospect of a much more conservative court. But they were careful to champion the nominee’s qualifications, not his ideology.

Joanne Freeman: The debate raged all summer. Finally, Robert Bork appeared before the Senate Judiciary Committee in September of 1987.

Robert Bork: I want to begin by thanking the President for placing my name in nomination for this most important position. [crosstalk 00:03:28]

Nina Totenberg: He did not do any practice sessions with the White House, what are called “murder boards.” He thought those were for sissies.

Robert Bork: I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases. I can not of course [crosstalk 00:03:43]

Joanne Freeman: The committee was especially interested in Bork’s judicial philosophy, based on the theory of original intent.

Nina Totenberg: The idea of original intent is the meaning of the constitution that the founding fathers had that it’s not a living document. It doesn’t change with time.

Joanne Freeman: In Bork’s view, recent decisions in favor of abortion and desegregation did not fit the founders’ original intentions. And so the question of precedent and whether Bork would uphold those decisions dominated the hearings.
Bork back peddled on some of his more controversial views, trying to appear more moderate, and he told the Senate Judiciary Committee that he took precedent seriously.

Nina Totenberg: And I think it was Kennedy who said to him, “Did you ever say anything different?” And he said, “No.” And then Kennedy played a tape of Bork at Canisius College saying …

Robert Bork: I don’t think that in the field of constitutional law, precedent is all that important. And if you become convinced that a prior court has misread the constitution, I think it’s your duty to go back and correct it.

Nina Totenberg: Which was exactly contrary to what he was testifying about at these very hearings. And I thought it was a devastating moment because it put his word in question.

Joanne Freeman: The senate ultimately voted to reject his nomination to the Supreme Court.

Nina Totenberg: Republicans have not to this day gotten over it. They call it being Borked.

Ed Ayers: The Senate eventually confirmed President Reagan’s third Supreme Court nominee, Justice Anthony Kennedy, but the battle over Robert Bork’s nomination had long term consequences.

Jeffery Rosin: And, it was the beginning of this process of polarization that basically turned the confirmation process into partisan war zones.

Ed Ayers: Rosin says that politics have always been a part of the nomination process, but recent presidents have been careful to nominate judges without paper trails, or judges who advertise ideological leanings for fear they’ll be Borked.
Ever since the Bork hearings, nominees have faced the relentless gaze of 24 hour news networks and attack ads from interest groups.

Jeffery Rosin: I guess what’s unfortunate is just that it’s a political process that just seems to have broken down, and that’s something that the Bork hearings set into motion.