The Battle over Robert Bork
Tue, 23 Oct 2007
Today marks the 20 year anniversary of the U.S. Senate’s ignominious defeat of Robert Bork to fill the Supreme Court slot of retiring justice Lewis Powell. Other commentators, such as Gary McDowell in the Wall Street Journal, are offering good insights on why it was wrong for the Senate to defeat such a well-qualified individual for a seat on the high court.
At the time, during the summer and fall of 1987, I was an attorney working for Concerned Women for America in Washington, D.C. My recollection was that President Reagan had made an excellent choice for the Supreme Court vacancy – at that time Robert Bork sat as a federal appellate judge on the D.C. Circuit, a court where Warren Burger, Antonin Scalia, Ruth Bader Ginsburg, Clarence Thomas and John Roberts would serve or were serving before their elevations to the Supreme Court. Bork had served as the solicitor general under President Nixon in the Justice Department where he argued many cases before the Supreme Court. Bork also had taught at Yale Law School, although students such as Bill Clinton did not seem to learn much from this great man.
In the summer of 1987, many thought the Senate would easily confirm such a well-qualified individual. But, that was not to be. Within 45 minutes of Bork’s nomination by President Reagan in July 1987, Sen. Ted Kennedy took to the floor of the Senate to smear this good man with falsehoods and exaggerations in an effective speech that will live in infamy:
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 government.
This speech was so over the top and distorted Bork’s positions so massively that many assumed it would be dismissed as ridiculous. But those who thought that did not understand what would happen in the upcoming months. The advocates of judicial activism were mounting a campaign of total war to annihilate this nominee who would construe the Constitution according to the original meaning of the text. They had Bork in their crosshairs and marked him for destruction.
I remember during the fall of 1987 looking on in disbelief as the leftist activists and their willing accomplices on the Senate Judiciary savaged Judge Bork. He thought the point of the hearings was for him to explain his views on constitutional law. But this was no academic conference on constitutional theory. The leftists were using the hearings as political theater, a show trial, to demonize a worthy man by twisting his words. They worked for the greater cause of keeping a majority of judicial activists on the Supreme Court bench. Slowly, many began to understand that Bork was headed for defeat unless they acted to dispel the barrage of lies. The Reagan White House woke up too late to this reality, and Judge Bork went down to defeat 58-42 twenty years ago today. America was deprived of a great judicial mind to serve on the Supreme Court.
President Reagan soon nominated Judge Douglas Ginsburg from the D.C. Circuit, but he quickly withdrew his name when it came to light that he smoked marijuana while at Harvard Law School. President Reagan then nominated Anthony Kennedy from the Ninth Circuit, whom the Senate approved. But, he turned out not to be a consistent proponent of judicial restraint and strayed with frequency into the lawless theory of the “evolving Constitution,” where judges discern new constitutional rights and impose them on everyone else. Think how different the course of American constitutional law would have been if Judge Bork, rather than Anthony Kennedy, voted in such cases as Lee v. Weisman (1992), which struck down as unconstitutional prayer at graduation ceremonies; Planned Parenthood v. Casey (1992), which reaffirmed the so-called right to abortion; and Lawrence v. Texas (2003), in which Kennedy was the crucial fifth vote extending the right of privacy to cover consensual sodomy. Kennedy was the crucial fifth vote for the wrong decision in each of those cases, and undoubtedly “Justice” Bork would have voted the other way in favor of judicial restraint and faithful interpretation of the Constitution.
The Left’s drive-by assault on Judge Bork had succeeded, in a sense. But in another larger sense, it failed. Many on the sidelines watched what was happening to Judge Bork and later to Justice Clarence Thomas in 1991 and other lower court nominees. They realized that if they were nominated to the federal bench, they too would be savaged for believing judges should faithfully apply the original meaning of the constitutional text to the cases before them. Many who now sit on the federal bench had their commitment to judicial restraint strengthened as they watched Judge Bork destroyed publicly for what he believed to be the correct role of a judge.
One example of Judge Bork’s commitment to judicial restraint and accurate interpretation of the constitutional text came in the case of Dronenberg v. Zech, 741 F.2d 1388 (D.C. Circuit 1984). The D.C. Circuit upheld the U.S. Navy’s action of discharging a petty officer for engaging in sodomy with a seaman of lower rank. The American Civil Liberties Union, which represented the navy officer, urged the judges to find a constitutional right to engage in sodomy and restore the man to the Navy. Judge Bork, writing for the panel, declined to do so, stating that “[i]f the revolution in sexual mores that appellant proclaims is in fact ever to arrive, we think it must arrive through the moral . . .