Robert Bork Supreme Court nomination

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President Ronald Reagan nominated Judge Robert Bork to serve as an Associate Justice of the United States Supreme Court on July 1, 1987. The U.S. Senate rejected his nomination, 42–58.[1] Of the 42 Yea votes, 40 came from Republicans and 2 from Democrats, the Nay votes were from 52 Democrats and 6 Republicans.


President Reagan and Bork, 1987

Supreme Court Justice Lewis Powell was considered a moderate, often referred to as a "swing vote" in close decisions, after he announced his retirement on June 26, 1987,[2] Senate Democrats had asked liberal leaders to form a "solid phalanx" to oppose an "ideological extremist" replacement to Powell; Democrats warned Reagan there would be a fight over the nomination if Bork were to be the nominee.[3]

President Reagan nominated Bork for the seat on July 1, 1987.[4] Bork had long been interested in the position; President Richard Nixon promised him the next seat on the Supreme Court following Bork's compliance in the controversial "Saturday Night Massacre" of October 1973. Nixon was unable to carry out the promise before his resignation in August 1974.[5]

Within 45 minutes of Bork's nomination to the Court, Senator Ted Kennedy (D-MA) took to the Senate floor with a strong condemnation of Bork in a nationally televised speech, declaring:

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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.[6]

On July 5, 1987, NAACP executive director Benjamin Hooks described their position on the Bork nomination: "We will fight it all the way - until hell freezes over, and then we'll skate across on the ice."[7] A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. Bork later said in his book The Tempting of America that the report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility".[8] TV ads produced by People For the American Way and narrated by Gregory Peck attacked Bork as an extremist, and Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination, the rapid response of Kennedy's "Robert Bork's America" speech stunned the Reagan White House; though conservatives considered Kennedy's accusations slanderous,[9] the attacks went unanswered for two and a half months.[10]

A hotly contested United States Senate debate over Bork's nomination ensued, partly fueled by strong opposition by civil and women's rights groups concerned with Bork's stated desire to roll back civil rights decisions of the Warren and Burger courts, and his opposition to the federal government's right to impose standards of voting fairness upon the states. Bork is one of only three Supreme Court nominees to ever be opposed by the ACLU.[11] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy,"[12] as demonstrated by his role in the "Saturday Night Massacre" during Richard Nixon's Watergate scandal.

During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988 Video Privacy Protection Act, his video rental history was unremarkable, and included such harmless titles as A Day at the Races, Ruthless People, and The Man Who Knew Too Much. The list of rentals was originally printed by Washington D.C.'s City Paper.[13][14]

To pro-choice legal groups, Bork's originalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he be named to the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. These groups also claimed that Bork's second marriage to a former Roman Catholic nun would allow her to influence his decisions on the abortion issue. Accordingly, a large number of left-wing groups mobilized to press for Bork's rejection, and his confirmation hearings became an intensely partisan battle. Bork himself became a Catholic in 2003, and his nomination replacement (Anthony Kennedy) was a Catholic; including Kennedy, the four of the next six Justices to join the court were Catholic. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade. Simultaneously, however, his supporters expressed frustration that some of Bork's most controversial and conservative views, including those on the scope of the First Amendment and the Equal Protection clause of the Fourteenth Amendment, as expressed in his writings and past opinions, had been suddenly moderated for his testimony before the Committee.[15]

As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing.[16] Biden stated his opposition to Bork soon after the nomination, reversing an approval in an interview of a hypothetical Bork nomination he had made the previous year and angering conservatives who thought he could not conduct the hearings dispassionately,[17] at the close of the hearings, Biden won praise for conducting the proceedings fairly and with good humor and courage, as his 1988 presidential campaign collapsed in the middle of the hearings.[17][18] Rejecting some of the arguments that other Bork opponents were making,[16] Biden framed his discussion around the belief that the Constitution provides rights to liberty and privacy that extend beyond those explicitly enumerated in the text, and that Bork's strong originalism was ideologically incompatible with that view.[18]

Confirmation vote[edit]

On October 6, Bork's nomination was rejected in the committee by a 9–5 vote,[18] since a committee rejection made a rejection by the full (Democratic) Senate extremely likely, Bork was widely expected to concede defeat and withdraw his name from a floor consideration.[15] However, three days later, Bork announced his belief that:

"There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions, but a crucial principle is at stake. That principle is 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. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees, for the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored."[19]

Faced with certain defeat, Bork's political support fell silent; Bork would even express disappointment with Reagan's tepid continued endorsement. On October 23, 1987, the Senate rejected Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Democratic Senators David Boren (OK) and Ernest Hollings (SC) voted in favor, with Republican Senators John Chafee (RI), Bob Packwood (OR), Arlen Specter (PA), Robert Stafford (VT), John Warner (VA) and Lowell P. Weicker, Jr. (CT) all voting nay. The vacant seat on the court to which Bork was nominated eventually went to Judge Anthony Kennedy.

State Senator Party
Alabama Heflin, HowellHowell Heflin D Nay
Alabama Shelby, RichardRichard Shelby D Nay
Alaska Stevens, TedTed Stevens R Yea
Alaska Murkowski, FrankFrank Murkowski R Yea
Arizona DeConcini, DennisDennis DeConcini D Nay
Arizona McCain, JohnJohn McCain R Yea
Arkansas Bumpers, DaleDale Bumpers D Nay
Arkansas Pryor, DavidDavid Pryor D Nay
California Cranston, AlanAlan Cranston D Nay
California Wilson, PetePete Wilson R Yea
Colorado Armstrong, William L.William L. Armstrong R Yea
Colorado Wirth, TimTim Wirth D Nay
Connecticut Weicker Jr., Lowell P.Lowell P. Weicker Jr. R Nay
Connecticut Dodd, ChrisChris Dodd D Nay
Delaware Roth, Jr., William V.William V. Roth, Jr. R Yea
Delaware Biden, JoeJoe Biden D Nay
Florida Chiles, LawtonLawton Chiles D Nay
Florida Graham, BobBob Graham D Nay
Georgia Nunn, SamSam Nunn D Nay
Georgia Fowler, WycheWyche Fowler D Nay
Hawaii Inouye, DanielDaniel Inouye D Nay
Hawaii Matsunaga, SparkSpark Matsunaga D Nay
Idaho McClure, James A.James A. McClure R Yea
Idaho Symms, SteveSteve Symms R Yea
Illinois Dixon, Alan J.Alan J. Dixon D Nay
Illinois Simon, PaulPaul Simon D Nay
Indiana Lugar, RichardRichard Lugar R Yea
Indiana Quayle, DanDan Quayle R Yea
Iowa Grassley, ChuckChuck Grassley R Yea
Iowa Harkin, TomTom Harkin D Nay
Kansas Dole, BobBob Dole R Yea
Kansas Kassebaum, NancyNancy Kassebaum R Yea
Kentucky Ford, Wendell H.Wendell H. Ford D Nay
Kentucky McConnell, MitchMitch McConnell R Yea
Louisiana Johnston, J. BennettJ. Bennett Johnston D Nay
Louisiana Breaux, JohnJohn Breaux D Nay
Maine Cohen, WilliamWilliam Cohen R Yea
Maine Mitchell, George J.George J. Mitchell D Nay
Maryland Sarbanes, PaulPaul Sarbanes D Nay
Maryland Mikulski, BarbaraBarbara Mikulski D Nay
Massachusetts Kennedy, TedTed Kennedy D Nay
Massachusetts Kerry, JohnJohn Kerry D Nay
Michigan Riegle, Jr., Donald W.Donald W. Riegle, Jr. D Nay
Michigan Levin, CarlCarl Levin D Nay
Minnesota Boschwitz, RudyRudy Boschwitz R Yea
Minnesota Durenberger, DavidDavid Durenberger R Yea
Mississippi Stennis, John C.John C. Stennis D Nay
Mississippi Cochran, ThadThad Cochran R Yea
Missouri Danforth, JohnJohn Danforth R Yea
Missouri Bond, KitKit Bond R Yea
Montana Melcher, JohnJohn Melcher D Nay
Montana Baucus, MaxMax Baucus D Nay
Nebraska Karnes, DavidDavid Karnes R Yea
Nebraska Exon, J. JamesJ. James Exon D Nay
Nevada Hecht, ChicChic Hecht R Yea
Nevada Reid, HarryHarry Reid D Nay
New Hampshire Humphrey, Gordon J.Gordon J. Humphrey R Yea
New Hampshire Rudman, WarrenWarren Rudman R Yea
New Jersey Bradley, BillBill Bradley D Nay
New Jersey Lautenberg, FrankFrank Lautenberg D Nay
New Mexico Domenici, PetePete Domenici R Yea
New Mexico Bingaman, JeffJeff Bingaman D Nay
New York Moynihan, Daniel PatrickDaniel Patrick Moynihan D Nay
New York D'Amato, AlAl D'Amato R Yea
North Carolina Helms, JesseJesse Helms R Yea
North Carolina Sanford, TerryTerry Sanford D Nay
North Dakota Burdick, Quentin N.Quentin N. Burdick D Nay
North Dakota Conrad, KentKent Conrad D Nay
Ohio Glenn, JohnJohn Glenn D Nay
Ohio Metzenbaum, HowardHoward Metzenbaum D Nay
Oklahoma Boren, David L.David L. Boren D Yea
Oklahoma Nickles, DonDon Nickles R Yea
Oregon Hatfield, MarkMark Hatfield R Yea
Oregon Packwood, BobBob Packwood R Nay
Pennsylvania Heinz III, H. JohnH. John Heinz III R Yea
Pennsylvania Specter, ArlenArlen Specter R Nay
Rhode Island Chafee, JohnJohn Chafee R Nay
Rhode Island Pell, ClaiborneClaiborne Pell D Nay
South Carolina Thurmond, StromStrom Thurmond R Yea
South Carolina Hollings, ErnestErnest Hollings D Yea
South Dakota Pressler, LarryLarry Pressler R Yea
South Dakota Daschle, TomTom Daschle D Nay
Tennessee Sasser, JimJim Sasser D Nay
Tennessee Gore, AlAl Gore D Nay
Texas Bentsen, LloydLloyd Bentsen D Nay
Texas Gramm, PhilPhil Gramm R Yea
Utah Garn, JakeJake Garn R Yea
Utah Hatch, OrrinOrrin Hatch R Yea
Vermont Leahy, PatrickPatrick Leahy D Nay
Vermont Stafford, RobertRobert Stafford R Nay
Virginia Warner, JohnJohn Warner R Nay
Virginia Trible, Jr., Paul S.Paul S. Trible, Jr. R Yea
Washington Evans, Daniel J.Daniel J. Evans R Yea
Washington Adams, BrockBrock Adams D Nay
West Virginia Byrd, RobertRobert Byrd D Nay
West Virginia Rockefeller, JayJay Rockefeller D Nay
Wisconsin Proxmire, WilliamWilliam Proxmire D Nay
Wisconsin Kasten, BobBob Kasten R Yea
Wyoming Wallop, MalcolmMalcolm Wallop R Yea
Wyoming Simpson, Alan K.Alan K. Simpson R Yea

The history of Bork's disputed nomination is still a lightning rod in the contentious debate over the limits of the "Advice and Consent of the Senate" that Article Two of the United States Constitution requires for judicial nominees of the President. Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.

In 2011, twenty-four years after Bork's nomination was rejected, New York Times columnist Joe Nocera claimed that "[t]he Bork fight, in some ways, was the beginning of the end of civil discourse in politics...The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust—the line from Bork to today’s ugly politics is a straight one." Nocera cited Democratic activist Ann Lewis, who wrote that if Bork's nomination "were carried out as an internal Senate debate, we would have deep and thoughtful discussions about the Constitution, and then we would lose."[20]

Political scientist Scott Lemieux, writing in The American Prospect, disputes the view of Bork as a victim of "allegedly unfair treatment ... [leading] to a new area of political incivility," arguing that "Bork's originalism was for the most part intellectually shallow and politically motivated." Arguing that all of Kennedy's harsh charges were grounded in Bork's published legal opinions, he wrote that "there's no reason for Democrats to abjure accurate statements merely because they're put in stark enough terms to be politically effective."[21]

"Bork" as a verb[edit]

William Safire of The New York Times attributes "possibly" the first use of bork as a verb to The Atlanta Journal-Constitution of August 20, 1987. The word had in fact appeared a few days earlier, in a newspaper opinion piece dated August 11.[22] Safire defines "to bork" by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before."[23] This definition stems from the history of the fight over Bork's nomination.[9] Bork was widely lauded for his competence, but reviled for his political philosophy; in March 2002, the word was added to the Oxford English Dictionary under "bork"; its definition extends beyond judicial nominees, stating that people who bork others "usually [do so] with the aim of preventing [a person's] appointment to public office."

Perhaps the best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court, she said, "We're going to bork him. We're going to kill him politically ... This little creep, where did he come from?"[24] Thomas was subsequently confirmed after a contentious confirmation hearing.


  1. ^ "Bork loses by 58–42 Senate vote". Eugene Register-Guard. Oregon. Associated Press. October 24, 1987. p. 1A. 
  2. ^ "Powell to leave Supreme Court". Milwaukee Journal. Associated Press. June 26, 1987. p. 1A. 
  3. ^ Fuerbringer, Jonathan (June 30, 1987). "Byrd Says Bork Nomination Would Face Senate Trouble". New York Times. Retrieved February 14, 2016. 
  4. ^ "Conservative nominated to court". Eugene Register-Guard. Oregon. (Washington Post). July 2, 1987. p. 1A. 
  5. ^ "Bork: Nixon Offered Next High Court Vacancy in '73". Yahoo News. ABC News. February 25, 2013. Archived from the original on 2013-03-01. 
  6. ^ Reston, James (July 5, 1987). "WASHINGTON; Kennedy And Bork". The New York Times. Retrieved 2008-04-28. 
  7. ^ "Naacp To Fight Bork 'Til Hell Freezes Over'". The Philadelphia Inquirer. 1987-07-06. Retrieved 2015-10-11. 
  8. ^ Damon W. Root (2008-09-09). "Straight Talk Slowdown". Reason. Retrieved 2008-10-26. 
  9. ^ a b Manuel Miranda (2005-08-24). "The Original Borking". The Wall Street Journal. Retrieved 2007-08-10. 
  10. ^ Gail Russell Chaddock (2005-07-07). "Court nominees will trigger rapid response". Christian Science Monitor. Retrieved 2007-08-10. 
  11. ^ "ACLU Opposes Nomination of Judge Alito". American Civil Liberties Union. Archived from the original on 2007-04-06. Retrieved 2007-08-17. 
  12. ^ New Views Emerge of Bork's Role in Watergate Dismissals, The New York Times.
  13. ^ "The Bork Tapes Saga". The American Porch. Archived from the original on 2007-10-09. Retrieved 2007-08-17. 
  14. ^ Peterson, Andrea (2014-04-28). "How Washington's last remaining video rental store changed the course of privacy law". The Washington Post. Retrieved 2018-01-08. 
  15. ^ a b The Eighties Club: 34. The Bork Nomination, by Jason Manning
  16. ^ a b Almanac of American Politics 2008, p. 364.
  17. ^ a b Bronner, Ethan (1989). Battle for Justice: How the Bork Nomination Shook America. W. W. Norton. ISBN 0-393-02690-6.  pp. 138–139, 214, 305.
  18. ^ a b c Greenhouse, Linda (1987-10-08). "Washington Talk: The Bork Hearings; For Biden: Epoch of Belief, Epoch of Incredulity". The New York Times. 
  19. ^ "Bork Gives Reasons for Continuing Fight". The New York Times. Associated Press. 1987-10-10. 
  20. ^ Joe Nocera, The Ugliness Started With Bork New York Times October 21, 2011
  21. ^
  22. ^ Stone, Chuck (1987-08-11). "Borking the Constitution". Index-Journal. Greenwood, SC. p. 4. 
  23. ^ WILLIAM SAFIRE (2001, May 27). ON LANGUAGE :judge fights 'borking' needed to stop court packing'? THE END OF MINORITY. New York Times (1857-Current file), p. SM12. Retrieved June 17, 2008, from ProQuest Historical Newspapers The New York Times (1851 - 2004) database. (Document ID: 383739671).
  24. ^ "The Borking Begins". The Wall Street Journal. Retrieved 2007-08-17. 

Further reading[edit]