A

THE BORK NOMINATION

A Public Fight

During the failed Supreme Court confirmation of Robert H. Bork in 1986, what had previously been a largely behind-the-scenes process moved suddenly into a public forum, a daytime news show. The unprecedented television proceedings in the Senate Judiciary Committee emerged from President Ronald Reagan's announced intention to change the philosophical orientation of the nation's highest court and from the liberal establishment's determination to prevent this. In the aftermath, the Supreme Court nomination process was changed forever, as four more nominees were subjected to similar scrutiny, culminating in the Clarence Thomas confirmation spectacle of 1991. Many critics of the changed process have decried confirmation "by sound bite" and the role of media spin doctors, but the televised hearings also made clear to the viewing public how much power is wielded in the Supreme Court and therefore how important it is that citizens know who nominees are and what they represent. Bork probably would have won confirmation had he been subjected to the old closed-hearing system, and he castigated the proceedings as a circus and witch-hunt. While many commentators say that the new, more public process ensures the court will never become simply the mouthpiece of the president who nominates the justices, others assert that it moves confirmation from the intellectual and narrowly political basis on which it had formerly rested to the uninformed and politically populist tool of the sound bite, the fax machine, and the telephone.

A Distinguished Judge

Bork was a distinguished jurist, much respected by the right wing of the Republican Party. Educated at the University of Chicago, he later became a professor of law at Yale University. Bork had written and spoken widely about constitutional matters, and had ruled favorably (from the conservative perspective) on key issues. He said that freedom of the press and freedom of speech had been taken too far. In one speech he said that the High Court had illegitimately created a woman's right to an abortion (an opinion shared by many abortion rights supporters). He attacked as intellectually sloppy previous High Court decisions such as a 1966 case that had outlawed racially discriminatory poll taxes.

Political Dues

Politically he had paid his dues as well, having written position papers for Barry Goldwater in 1964 and by supporting President Richard Nixon's decision to send troops into Cambodia in 1970. He also fired the special prosecutor in the Watergate scandal, Archibald Cox, in the infamous "Saturday Night Massacre." As Nixon's solicitor general, Bork had become acting attorney general after Elliot Richardson and William Ruckelshaus both resigned rather than carry out the task of sacking Cox, who had demanded that the president turn over his secret White House tapes. He remained solicitor general—often a stepping-stone to the Supreme Court—during Gerald Ford's presidency, but was passed over for nomination to the high bench in 1975 upon the retirement of William O. Douglas in favor of Justice John Paul Stevens. Bork's role in Watergate was still too prominent and controversial.

Court of Appeals

After a brief return to Yale, Bork became a partner in a prestigious Washington, D.C., law firm and in 1981 was appointed to the Second District Federal Court of Appeals. There his rulings drew considerable notice and controversy. By now the intellectual leader of conservative jurisprudence, Bork was passed over once again when Reagan nominated Sandra Day O'Connor to the High Court and was especially crushed when the younger, and less well known, Antonin Scalia was nominated to fill the vacancy created by Justice William Rehnquist's elevation to chief justice. Reagan strategists believed that the combination of Rehnquist and Bork would prove too great a target for liberals.

Powell's Replacement

Yet Reagan had not forgotten Bork. When Lewis Powell retired in 1987, Reagan finally nominated Bork to the nation's highest court. At this stage the high bench was seen as evenly balanced between liberals and conservatives. Bork would therefore provide the much sought-after "swing" vote that would finally reorient the Supreme Court. Because Bork was known as the most incisive and acerbic critic of the court's direction during the previous thirty years, his nomination sent civil rights and abortion rights activists scrambling.

A Media Confirmation

At first Bork's White House handlers sought to play down his opinions and to emphasize his qualifications as law professor, corporate attorney, judge, and government official. But no one could ignore the fact that Reagan had nominated the man for reasons far more portentous than his record. By the time the Senate Judiciary Committee convened, Bork's nomination was already in trouble, and the unprecedented television broadcast of the hearings, which had previously always taken place behind closed doors, probably served to undo him. Subject to the highly focused camera, Bork made no attempt to make himself telegenic and came across to the viewing public as an unfeeling thinker with a scowling visage, and as intellectually arrogant.

Judicial Restraint

Bork was a strict constructionist who believed he was hewing to the original intent of the framers of the Constitution. Judicial restraint was Bork's watchword. In other words, courts should leave lawmaking to the legislators, not the courts, and should refrain from overturning local statutes. On civil rights Bork had opposed new laws, made necessary by striking old ones, giving blacks the right to be served in public accommodations such as restaurants and hotels. He also believed that pre-1966 laws allowing discrimination in housing against blacks and Jews were constitutional and that actions by the Supreme Court to strike them had deprived property owners of their rights to dispose of their holdings as they saw fit. Bork was also critical of Regents of the University of California v. Bakke (1978), which overturned racial and gender quotas but upheld racial preferences. Bork argued that any admissions preferences for blacks, other minorities, and women discriminated against citizens not members of those minorities and deprived them of Fourteenth Amendment guarantees. In his philosophy, individual liberties not expressly mentioned in the Constitution were not to be created by the Supreme Court but rather by the normal political process. On the Ninth Amendment in the Bill of Rights, for example, which since the Roe v. Wade decision is said to construe the citizen's right to privacy, Bork contended that the founders had never intended the Constitution to create a privacy right outside those explicitly mentioned in other amendments, let alone one covering the right to abortion.

Political Judgment

In his 1990 book The Tempting of America, Bork argued that his nomination had been derailed by a liberal witch-hunt. Yet it was Bork's opposition to abortion that killed his nomination. Under questioning in the Judiciary Committee he stated baldly that the Constitution provided no such guarantee of privacy. Then the mail began to pour into the Senate. When the moderate Arlen Specter (R-Pa.) announced his intention to vote against Bork, thereby leading a defection of key Republicans, and when black voters began to pressure southern Democrats, there was little hope for Bork's success. Nevertheless, he refused to withdraw his name, and in the end the Senate voted 58-42 against his appointment to the Supreme Court, the largest margin of defeat of a Supreme Court nominee in U.S. history.

Media Circus

Critics on both sides of Bork's nomination questioned the ethics and efficacy of the media circus accompanying the televised proceedings. The integrity of the process had been sacrificed, they said. The Court was intended to be above partisanship. Yet the Senate's perquisite and obligation under the Constitution—to provide advice and consent to the president in such matters—necessarily required an adversarial process given the party system. The key issues of our time today are in the national consciousness, in part because of the mass media, and citizens no longer accept measures bearing on matters of such importance being settled behind closed doors. While Chief Justice Rehnquist has vetoed televised Supreme Court hearings, all future nomination procedures (for all important offices, not only judicial) before the Senate will apparently continue to be televised, thereby complicating the debate over the extent to which the nomination process has been further politicized. Nonetheless, one of the seemingly lasting effects of the Bork confirmation fight is that nominees will not be as honest and forthcoming in their testimony as was Bork.