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Constitution Daily

On This Day: Senate Rejects Robert Bork for the Supreme Court

On October 23, 1987, the United States Senate held one of the most-controversial votes on a Supreme Court nominee in its history, when it rejected Robert Bork’s appointment.

Two weeks earlier, the Senate Judiciary Committee, led by then-Senator Joseph Biden, decided to send Bork’s nomination to the floor with a recommendation that it be rejected if brought to a full vote in the Senate. Bork, then a judge on the federal appeals court in the District of Columbia, demanded a full vote on the Senate floor, too.

How the Bork nomination made it to that point was a saga in itself. Born in Pittsburgh, Bork had a considerable reputation as a conservative law scholar and a proponent of originalism, the legal theory that the Constitution should be interpreted as originally intended by the Founders and Founding generation.

Bork also taught at Yale University, which wasn’t exactly a hotbed for conservative legal scholars. Among his Yale Law students were Bill Clinton and Hillary Rodham Clinton. In 1973, Bork accepted an invitation from the Nixon Administration to join the Justice Department as Solicitor General. The Senate confirmed Bork’s appointment in March 1973, but only after an intense hearing that touched on legal opinions that would again surface in 1987.

The former academic and attorney then wound up as the acting head of the Justice Department in October 1973 after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to fire Watergate Special Prosecutor Archibald Cox under orders from President Nixon. Bork as Solicitor General ordered the firing, which averted a further constitutional crisis.

Ruckelshaus later told the Los Angeles Times that he was glad that Bork acted. “We were frankly worried about the stability of the government,” he said.

Bork returned to private life in 1977, but then he was appointed by President Ronald Reagan to the U.S. Appeals Court for the District of Columbia in 1982, where he was again confirmed by the Senate.

Five years later, President Reagan nominated Bork for the Supreme Court on July 1, 1987, to replace a retiring Lewis Powell. Senator Ted Kennedy reacted with a public statement that quickly drew political battle lines over Bork’s nomination.

“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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy,” he said. (Bork later stated that he felt every word in the statement was false.)

Senate Democrats brought up legal writings from Bork dating back to 1963, when he wrote a New Republic article opposing the proposed 1964 Civil Rights Act. Bork’s opponents were critical of his opinions about the Supreme Court’s Roe v. Wade decision. Bork’s testimony was also broadcast on live television.

After the Judiciary Committee declined to recommend Bork in a full Senate vote, the nominee voiced his frustrations with a nomination process that he thought had turned into a political litmus test for the Supreme Court.

“Federal judges are not appointed to decide cases according to the latest opinion polls,” he said, adding that if judicial candidates “are treated as political candidates the effect will be to erode public confidence and endanger the independence of the judiciary.”

When the full Senate debated Bork’s nomination, 54 Senators in the Democrat-controlled chamber had already said they would not approve Bork. The final vote on October 23 of 58-42 against Bork confirmed that outcome.

President Reagan followed Bork’s rejection with the nomination of another federal judge, Douglas Ginsburg. But Ginsburg withdrew after allegations arose about his personal marijuana use. Reagan then nominated a federal judge from California, Anthony Kennedy, who was seen as a “mainstream conservative.” In November, the Senate confirmed Kennedy in a 97-0 vote.

Bork then retired from the federal court, returned to teaching and wrote several bestselling books. Late in life, Bork served as an adviser to presidential candidate Mitt Romney until Bork passed away at the age of 85 in 2012.

In addition to his legal legacy, Bork also has a word named for him in the Oxford English Dictionary. The verb “bork” is used as slang, to “defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”




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