To Bork or Not to Bork? The Old Fight That Shows Democrats Why, and How, to Stop Gorsuch
Trump, like Reagan, squandered his chance to offer a unifying pick to satisfy his most conservative supporters.
Thirty years ago, Democrats gave the Supreme Court confirmation process a bad name. When they killed the nomination of President Ronald Reagan’s first nominee to fill a vacancy, a new term was invented: “To Bork.” The term meant to kill a nomination through character assassination, slander, and ideological attacks regardless of the competence of the person who was being considered.
Today Judge Neil Gorsuch’s supporters are warning that the Democrats should not “Bork” President Trump’s nominee. Given Gorsuch’s stellar professional record, his competence does not seem to be in question. At least from the leaked remarks about his meeting with Connecticut Senator Richard Blumenthal, he appears to have a healthy unease with President Trump’s aggressive statements about the judiciary.
But there are many reasons for Democrats to consider using their power to filibuster his nomination. After Republicans refused to confirm former President Obama’s nominee Merrick Garland—leaving many Democrats to feel like this is a “stolen seat”—the president could have sent a consensus nominee. After having lost the popular election by large numbers and now stimulating fears that he won’t respect our system of checks and balances, this was the moment to demonstrate that he understands the tensions he’s helped create. Rather than a pick intended to please the right, he could have selected someone who Democrats could have felt good about supporting even if it came from this administration.
But he did not. With Gorsuch, Trump has put forward a nominee who comes from the most conservative part of the judicial spectrum. As an originalist who is a favorite of the Federalist Society, Gorsuch has a very conservative record on key issues like religious rights, reproductive rights, gay marriage, gun rights, criminal justice and more. There is good reason to believe that he would uphold the principles of the late Justice Antonin Scalia and pose a serious threat to a number of important public policies. Senate Minority Leader Chuck Schumer, writing in The New York Times, warned that Gorsuch refused in their closed-door interview to answer “rudimentary” questions about executive power, campaign finance, voting rights or the constitutionality of Trump’s refugee ban.
As Senate Democrats consider whether or not to filibuster this nominee, they should take another look at what went down when Senators were considering the case of Robert Bork. Rather than a model that they need to avoid, it in fact offers an important lesson about the legitimate reasons to to block a high court nominee.
In 1987, Senator Ted Kennedy led the Democratic opposition to defeat a candidate who was far to the right on core principles and would have posed a real threat, in their minds, to fundamental social rights achieved after many decades of social struggle. They also believed that it was wrong for the president to select such a rightwing nominee after Democrats had regained control of the upper chamber in the 1986 midterm elections.
The battle over Bork began after Supreme Court Justice Lewis Powell, a swing vote on the court, announced on June 26, 1987, that he would be retiring from the court. With the president facing a major investigation into the Iran Contra scandal, this appointment could be his last chance at legacy building. Democrats warned the White House that they expected a nominee who could win broad support.
Reagan didn’t take their advice. On July 1, the president announced his pick was the 60-year-old Robert Bork, who had been on conservative Supreme Court shortlists for over a decade. A Yale professor, Richard Nixon’s former solicitor general, and a former federal appeals court judge who preached “originalism,” which calls for a strict adherence to the Constitution regardless of how social, legal and political norms have changed over time, Bork was seen as Reagan’s farewell gift to the right.
Kennedy, one of the leading liberal voices within the Democratic Party, would have none of it. Given that conservatives had pointed to Bork as a model nominee for his intellectual record, liberals in the Senate had been doing background work on him already and had a good feel for just how conservative his views were. Kennedy believed that placing Bork on the Court would result in huge risks to the major gains in social justice that had been achieved since the 1960s. He perceived Bork to be an extremely ideological figure, despite Bork’s own claim that he opposed activism, and predicted that the conservative drift of the Court with him on it would result in serious threats to abortion, voting rights, affirmative action, environmental regulation and much more.
Bork had written an article challenging the Civil Rights Act of 1964 and he opposed the Supreme Court’s one-man-one-vote ruling on legislative apportionment. He had been a major opponent of the Supreme Court’s Griswold v. Connecticut a landmark right to privacy decision in 1965 which was the basis for Roe v. Wade. “The court responds to the press and law school faculties,” he said. Replacing a moderate vote with a right-winger would fundamentally change the court.
Bork also had a major role in the “Saturday Night Massacre” under President Richard Nixon. This was the moment when Nixon fired special prosecutor Archibald Cox who was investigating Watergate. When Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to carry out the order and resigned, Solicitor General Bork agreed to carry out the action. While conservatives praised Bork as a man of principle and integrity, Democrats remembered how he had carried out a corrupt president’s dirty work. His decision in 1973, argued one law school professor, “raise serious questions about the extent to which he, as a judge, would require the federal government to adhere to constitutional and other legal limitations.”
After Reagan announced the appointment, Kennedy took to the Senate floor 45 minutes later to make a dramatic speech intended to mobilize opponents against this confirmation. “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, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
The charged rhetoric was no accident. “I knew my speech was red-hot even before I delivered it,” Kennedy recalled, “I wanted it that way—immediate and fiery—because I wanted to frame the debate. I knew I was making myself a target by being so heated in my rhetoric, but it was a price I was willing to pay to keep this man off the court.”
It worked. The People for the American Way broadcast television ads depicting Bork as a dangerous extremist who would undermine the rights of most Americans. In one ad, the actor Gregory Peck warned that if Bork “wins a seat on the Supreme Court it’ll be for life—his life and yours.” Ralph Neas, the executive director of the Leadership Conference on Civil Rights warned that “A Bork nomination, or the nomination of anyone who would jeopardize the civil rights accomplishments of the past 30 years, would most likely precipitate the most controversial and confrontational legislative battle of the Reagan years.” Women’s organizations announced that they could not stand for an Associate Justice who was hostile to the gains that women had made since the 1970s, including on reproductive rights. The ACLU, in a rare stand against a Supreme Court nominee, said no, calling Bork a “radical” not a conservative.
“Judge Bork’s writings make it crystal clear,” said the organization’s executive director Ira Glasser, “that he thinks the highest right in this society is the right of local majorities to make law and to impose their morality on the rest of society.”
Wyoming Senator Alan Simpson, a Republican, complained that these organizations “turned him into an absolute gargoyle, into a beast.”
Although conservatives expressed outrage, the truth is that confirmations were political long before 1987. As the historian David Greenberg has written, the Senate rejected George Washington’s nominee for Chief Justice in 1794 and the right worked hard to block Thurgood Marshall when Lyndon Johnson appointed him to be the first African American Justice in 1967. Liberals stopped Richard Nixon’s nominations of Clement Haynsworth in 1969 and G. Harrold Carswell in 1970. So despite the complains, the mobilization against Bork was nothing more than familiar for most senators.
Conservative organizations conducted a public relations campaign of their own. The right paid for their own ads, they lobbied senators, and they built public support for this important nomination.
Senator Joe Biden, the chairman of the Judiciary Committee who was running for the Democratic nomination in the 1988 presidential election, opposed Bork’s nomination but tried to conduct the hearings in a fair manner. Some Democrats were pretty hard hitting, but they focused on very important policies. Ohio Senator Howard Metzenbaum attacked Bork for having made a ruling on the appeals court that allowed a chemical company to provide a choice to female employees between being fired or being sterilized. During the hearings, most of Bork’s answers were unconvincing, and often tortured or totally contradicted his own record. He came off as arrogant and odd. Senators were upset when he said that serving on the Court would be an “intellectual feast,” which suggested to many that he would not consider the actual impact of his decisions. “He looked and talked like a man who would throw the book at you—and maybe the whole country,” observed Tom Shales, the television critic for the Washington Post.
The committee voted on Oct. 6 to reject the nomination by a vote of 9 to 5. Bork refused to withdraw his name while he blamed the process as partisan and unfair, laying the groundwork for the term that would bear his name. “A crucial principle is at stake in the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion.”
On Oct. 23, the Senate rejected the nomination by a vote of 58 to 42. A few Democrats like David Boren and Ernest Hollings voted in in support of nominee, but most of the party went the other way. Six moderate Republicans voted against him. Kennedy’s campaign had worked. Bork was too radical.
Today, Senate Democrats have good reason to Bork Gorsuch. Since Republicans broke the confirmation process when they refused to even hold hearings on Garland, it is incumbent on their party, which controls the White House and Congress. The fix is for Republicans to send a moderate and a pragmatist who will move the divided court to the center, not to the right. As they did in 1987, though, Democrats face a nominee who comes from the far right and he symbolizes presidential choice that is clear statement of defiance. With this nomination, Trump proves again that he is a president whose power comes from dividing, not uniting.
Rather than remembering the Bork appointment as something that to avoid, this is a time to look back at Senator Kennedy’s campaign as a model for how to handle Gorsuch in the coming weeks.