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Bork nomination fight altered judicial selection

Published December 19, 2012 9:40 pm

Supreme Court • The 1987 nominee died Wednesday at 85.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • Conservatives wanted Robert H. Bork on the Supreme Court. They wound up with Anthony Kennedy, the key vote in reaffirming a woman's right to an abortion.

The fight over Bork's failed Supreme Court nomination redefined the Senate confirmation process and made him a symbol of the nation's culture wars. The political battle that erupted over Bork has now, years later, expanded to stall nominees for far lesser judicial posts, and nominees themselves have curbed their responses to questioning to avoid his fate.

Had Bork, who died Wednesday at age 85, prevailed and become a justice, his vote would have dramatically changed the court.

President Ronald Reagan's choice of Bork in 1987 to replace Justice Lewis Powell was intended to cement conservative control of the court for decades. And Bork gave both his supporters and opponents every reason to believe, through scholarly writings and judicial decisions, that he would be a consistent conservative vote on a range of key issues. That would include, perhaps most importantly, one day delivering the decisive blow to undo the 1973 Roe v. Wade ruling that declared a woman's right to an abortion.

He was a staunch critic of the court's Griswold v. Connecticut decision in 1965 that found a right to privacy in the Constitution that trumped a state law prohibiting even married couples from using birth control. The ruling was a precursor to decisions in favor of abortion rights and gay rights, including some authored by Kennedy.

In the mid-1980s, Bork was better known and had a much longer legal resume than his conservative colleague on the federal appeals court in Washington, Antonin Scalia. Bork had been a Yale law professor, whose students included Bill Clinton and Hillary Rodham.

He was the Nixon administration's top Supreme Court lawyer and played a dramatic role in the Watergate scandal's Saturday Night Massacre. When Attorney General Eliot Richardson and his deputy, William Ruckelshaus, refused President Richard Nixon's order to fire Watergate special prosecutor Archibald Cox, Richardson resigned and Ruckelshaus was fired. The next in line at the Justice Department, Solicitor General Bork complied and earned the enmity of many Nixon opponents, although Richardson himself later praised Bork for his actions.

In 1986, Chief Justice Warren Burger's retirement gave Reagan the chance to elevate Justice William Rehnquist to chief justice and fill Rehnquist's seat. Bork and Scalia were strong contenders and shared the "originalist" view that judges should focus on the meaning of the Constitution and laws as they were understood at the time they were written

Reagan went with Scalia, nine years younger than Bork and also the first Italian-American on the Supreme Court. With most attention focused on Rehnquist, Scalia sailed to confirmation through a Republican-controlled Senate.

But by the time of Powell's retirement, a year later, control of the Senate had shifted to the Democrats and control of the court was at stake. On the same day Reagan said he would nominate Bork, Sen. Edward Kennedy rushed to the Senate floor to paint a vivid picture of Bork that enraged the White House and signaled the coming confirmation battle.

"'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," Kennedy said.

The Senate had scuttled four high court nominations in the 20 years before Bork's: two Democratic picks, Abe Fortas and Homer Thornberry, and two Republican ones, Clement F. Haynsworth Jr. and G. Harrold Carswell. But the fight over Bork was intensely partisan and ideological, and it reflected the high stakes in the Reagan administration's effort to push the federal judiciary to the right.

The American Civil Liberties Union dropped more than a half-century of neutrality in confirmations to oppose Bork. Liberal interest groups mobilized in a precursor to what is now standard practice on both the left and right, to fight the nomination. Actor Gregory Peck recorded anti-Bork commercials.

The Senate hearings were in one sense a televised civics lesson: Bork, a burly man with a heavy beard, repeatedly defended — in dry scholarly terms — his view that judges should play a limited role in American life. He faced sustained Democratic attacks on his writings in academia and on the federal bench.

Among the topics up for discussion were Bork's views on civil rights. In 1963, he had written disapprovingly of the pending Civil Rights Act and called the government's effort to stop discrimination in restaurants, hotels and other areas of public accommodation "a principle of unsurpassed ugliness." Ten years later, in a hearing on his nomination to be Nixon's solicitor general, he said had been wrong about the civil rights legislation.

Of the many Southern Democrats still in the Senate in 1986, by then dependent on significant African-American support at the polls, only Sen. Ernest Hollings of South Carolina voted for Bork.

Edwin Meese, who was Reagan's attorney general at the time, was a leading proponent of counteracting what he saw as liberal judicial excesses, characterized most vividly by the Warren court, by making judges of people like Bork and Scalia.

"The vicious opposition by the left to Bob Bork's nomination turned what had sometimes been a contentious confirmation process into literally a political campaign," Meese said Wednesday.

The wrangling over nominees, once confined to the Supreme Court, now affects even candidates for district court judgeships. And nominees, looking back at Bork's performance, now routinely duck questions intended to elicit politically damaging responses that might provide a reason for senators of one party or the other, to cast "no" votes.

The Senate eventually rejected Bork's nomination 58-42, with the help of a half-dozen Republicans who joined all but two Democrats in voting against him.

In later years, Bork joked that he achieved a measure of immortality anyway, because his name became a verb signifying the vilification of a nominee on political grounds, as in, to Bork a nominee.

After the Senate vote, the Reagan administration said it would nominate Douglas Ginsburg, but that choice faltered over Ginsburg's admission that he had smoked marijuana while a professor at Harvard Law School.

He withdrew and the White House put up Kennedy, who was confirmed without a dissenting vote and whose ongoing role as the swing vote in many of the cases that split the justices on ideological grounds remains a source of consternation among conservatives.