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Kavanaugh Column, News

A Return to “Borking”?

After President Ronald Reagan, in the summer of 1986, nominated Justice William Rehnquist to be Chief Justice of the US Supreme Court and nominated Judge Antonin Scalia as Associate Justice, Rehnquist was confirmed by the Senate 65-33 and Scalia was confirmed 98-0.  Then, Democrats took over the Senate in the mid-term elections of November 1986.

The following summer, Justice Lewis F. Powell retired.  Powell had been nominated by President Nixon and joined the majority in Roe v. Wade in creating a right to abortion in 1973.  President Reagan nominated Judge Robert Bork (1927-2012) to succeed Powell on July 1, 1987.

The Bork nomination dramatically changed the Supreme Court confirmation process for the next three decades.

Bork was eminently qualified. A graduate of the University of Chicago Law School, Bork worked in the private practice of law, then taught at Yale Law School. Nominated by President Nixon, Bork served as U.S. Solicitor General from 1973-1977.  In October, 1973, in the midst of the Watergate crisis, during the “Saturday Night Massacre,” Bork became the acting head of the Department of Justice when the Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned after refusing to obey Nixon’s order to fire the Watergate Special Prosecutor, Archibald Cox. Reportedly after discussions with Richardson and Ruckelshaus, Bork agreed to stay and fire Cox.  Bork remained Solicitor General until leaving government at the end of the Ford Administration in 1977, and returned to teaching and private practice of law.  He was named by President Reagan to the U.S. Court of Appeals for the D.C. Circuit in 1982. Some believe that Reagan considered both Bork and Scalia at the time of the Powell retirement and nominated Scalia in June 1986, instead of Bork, believing that Bork would be easier to confirm later, even with a Democrat Senate.

Bork was also an early and influential defender of what was called at the time, the judicial philosophy of “originalism,” the practice of reading the Constitution according to the original meaning of the text.  He was the author of an influential 1971 article on originalism in the Indiana Law Review, entitled “Neutral Principles and Some First Amendment Problems.” (A contemporary database says that Bork’s article has been cited by 2,119 subsequent articles.) An expert in antitrust law, Bork authored a 1978 book, The Antitrust Paradox, which was influential with hundreds of courts and with the US Supreme Court.

Within an hour of Reagan’s nomination, Senator Edward Kennedy (D-MA) immediately took to the Senate floor to denounce Judge Bork in the strongest terms, culminating in:

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.”

Kennedy’s statement “drew the battle lines.”  Opponents cited a 1963 article by Bork, published in National Review, which questioned the purposes of the then-pending Civil Rights Act of 1964.  Bork had also been an academic critic of Roe v. Wade and Griswold v. Connecticut, but during the confirmation hearings, abortion was almost never mentioned.  Instead, Bork was attacked for opposing a “right to privacy.”

After hearings, at which Senator Joseph Biden (D-DE) presided as chairman of the Senate Judiciary Committee, the Democrat Senate rejected Bork’s nomination 58-42 on October 23, 1987.

The process resulted in the addition of a new word, “bork,” to the Oxford English Dictionary: 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.”

Few Senators have yet denounced Judge Kavanaugh in terms similar to those of Senator Kennedy, but perhaps they are holding their accusations until the hearings begin on Tuesday, September 4.