Why was Robert Bork rejected for the Supreme Court

As allegations of sexual assault and misconduct swirl around Supreme Court nominee Brett Kavanaugh, many conservatives are deeply concerned that Kavanaugh is being “Borked” — a reference to the failed 1987 nomination of Robert Bork to the Supreme Court.

According to Merriam-Webster, “to Bork” means “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” And as conservative pundit George Will (who served as an usher at Bork’s wedding) wrote in his Sunday column for the Washington Post, the allegations against Kavanaugh are a perfect example of a “Borking” in progress:

Hence, the confirmation process has followed the crumbling, descending path the rest of American politics has taken into the depths of cynicism, faux outrage and pandering to the parties’ hysterical bases. The utter emptiness of everything is an intellectual vacuum into which have flooded histrionics.

To a generation of Republicans, the legacy of Bork was one in which, as the Wall Street Journal described in August, “character assassination proved an effective tactic” and “special interest groups” discovered “they could demonize judicial nominees based solely on their worldview.”

The political polarization that came to epitomize Bork’s nomination remains just as visceral, if not more so, as Kavanaugh’s nomination is debated. But Bork’s legacy, and the idea of “Borking,” has been misconstrued.

In Bork’s case, there were real and valid reasons for many Americans to not want him on the Supreme Court, based on his rulings in cases as a Circuit Court judge, his views and actions as solicitor general, and his past statements and writings. In his writings, he argued that only political speech was protected by the First Amendment; as a circuit court judge, he ruled against the right to privacy and in favor of a company whose employees had undergone sterilization procedures to keep their jobs. He wrote extensively in opposition to the Civil Rights Act of 1964, and even argued that a poll tax struck down by the Supreme Court was just a “very small tax.”

And today, Brett Kavanaugh is facing serious questions about his history with women, which is incredibly relevant to the work he’d do on the Supreme Court.

Plus, Bork’s failed nomination to the Supreme Court was more than even these factors. He was one of the first Supreme Court nominees to endure televised hearings that gave senators the chance to speak to the American people en masse, and he was the subject of heavy (and involved) questioning — questioning for which he was woefully unprepared.

Robert Bork wasn’t the victim of “character assassination.” Robert Bork was the victim, ultimately, of Robert Bork.

How Bork was “Borked”

On July 1, 1987, Ted Kennedy, then a senator and a leading light within the Democratic Party, took to the Senate floor to denounce Robert Bork, whom Ronald Reagan had just nominated for the Supreme Court. In his remarks, Kennedy said that adding Bork to the Supreme Court would force women into back-alley abortions and black Americans back to segregated lunch counters, adding that with Bork, “the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”

At the time of Kennedy’s speech, Bork was a circuit judge for the United States Court of Appeals for the DC Circuit (where he served from 1982 to 1988). Before serving on the court, Bork, a graduate of the University of Chicago and a former Marine, had taught law at Yale Law School, where his students would include both Bill and Hillary Clinton, as well as Anita Hill and future California Gov. Jerry Brown. Suffice it to say, he was very well known in the upper circles of American conservatism.

And in stark contrast to Kennedy, many of those conservatives were thrilled about Reagan’s choice. To many Republicans, particularly religious Americans who leaned right, Bork’s rulings in cases like Dronenburg v. Zech — a case in which Bork and future Supreme Court Justice Antonin Scalia had ruled that there was no “Constitutional right to engage in homosexual conduct” and thus no right to privacy for it — provided hope that putting Bork on the Court would move the Court further in their direction (though Reagan himself pitched Bork as a “moderate,” which in turn enraged conservatives at the Justice Department).

But many on the right, including those who laughed at Kennedy’s doom-and-gloom portrayal of the nominee, widely underestimated just how much liberals would fight back against Bork’s nomination; to them, the mere idea of Bork on the Court was a terrifying one.

In their view, this was not just a man who had ruled against a constitutional right to privacy for gay people — raising concerns that his views on privacy would lead to the overturning of Roe v. Wade — but also the man who ruled in 1984 in favor of a lead pigment company whose employees had undergone voluntary sterilization in order to keep their well-paying jobs. (Bork ruled that making sterilization a policy for a job didn’t violate the Occupational Safety and Health Act.)

He also believed that government-sponsored school prayer did not violate the First Amendment, and in 1985, he said in response to a Baptist minister who referenced a Jewish friend who had been required to engage in Christian prayer in a public school, “So what? I’m sure he got over it.”

During his confirmation hearing to be solicitor general, Bork had also seemingly argued in favor of a Virginia poll tax that had been struck down by the Court in 1966, saying, “It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other.” That same year, he also wrote in opposition to the Court’s ruling against the use of literacy tests in voting.

And there was more: Bork described the Civil Rights Act of 1964 as state coercion, writing in 1963 that the law would cause a loss of “personal liberty” and put forward “a principle of unsurpassed ugliness.” On the First Amendment, Bork wrote in 1971 that the Constitution only protects political speech, adding, “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”

Liberal groups including the AFL-CIO and People for the American Way responded with an outpouring of direct advertising aimed at stopping Bork, like this ad, voiced by actor Gregory Peck. “If Robert Bork wins a seat on the Supreme Court, it’ll be for life. His life, and yours,” Peck intones.

The reasoning behind Bork’s judicial rulings and viewpoints is straightforward and, to many conservatives, extremely logical: Bork was a constitutional originalist who believed that the Constitution and the laws it set in place should be interpreted the same way they were when the document was first written. And had Bork been able to adequately explain his viewpoints to the Senate Judiciary Committee, and to America, through that lens, perhaps his nomination would have been successful.

But that’s not what happened.

“But he was a genius, the Einstein of the law”

Until 1955, it wasn’t unusual for Supreme Court nominees to not answer questions from the Senate Judiciary Committee about their views or rulings, or to not even show up for their hearings at all and still get on the Court. Televised Supreme Court nomination hearings only began in 1981. And in 1986, the year before Bork’s nomination, the Senate finally agreed to televise its proceedings.

Why does this matter? Because only with televised Senate hearings did the American people see Sen. Ted Kennedy call Bork a danger to American life, and only with televised Supreme Court nomination hearings did Americans see Sen. Joe Biden, then the chair of the Senate Judiciary Committee, perform what the New Yorker called “a meticulous dissection” of Bork’s career.

Before his nomination, Biden had said that he would support Bork, seeming to reject Kennedy’s rhetoric. (He also refused to subpoena Bork’s video rental records to see if he’d rented any pornographic films.) That gave many conservatives a great deal of confidence about Bork’s chances of getting on the Court, though, worryingly, a committee within the American Bar Association announced that while it would give Bork its highest rating, its members were split on his qualifications for the role.

But Sen. Orrin Hatch, one of Bork’s biggest defenders, said that Bork would do “very well” in televised hearings, adding, “I think those who have been vilifying him are going to have to eat a lot of words.”

Perhaps the most confident about his chances for the Court was Bork himself, who did very little preparation for his hearings. Typically, Supreme Court nominees go through a process known as “murder boards,” where they are put through extensive questioning similar to what they’ll face from the Senate Judiciary Committee. But Bork didn’t, partly because his allies, like his old friend Antonin Scalia, told him he was so qualified for the position that he wouldn’t need the preparation. One friend who helped Bork through the process would later say, “It was a mistake not to make him do more murder boards. I should have rolled him on that. But he was a genius, the Einstein of the law.’’

And arguably, that’s where everything went wrong for Bork and his allies. Before the hearings, a majority of Americans polled by the New York Times and CBS had no opinion of Bork one way or the other. But the hearings, which began on September 15, 1987, were an absolute disaster for Bork, whom Tom Shales, the television critic for the Washington Post, described as “cold-hearted and condescending.” He added, “He looked and talked like a man who would throw the book at you — and maybe the whole country.” (You can watch Bork’s Supreme Court nomination hearings in full on YouTube.)

In response to a question about the sterilization case, Bork said of the women who had undergone sterilization in order to keep their jobs, ‘’I suppose that they were glad to have the choice.’’ And when asked about the poll tax case, he said, “It was just a $1.50 poll tax.”

When asked why he wanted to be on the Supreme Court, Bork responded that such service would be “an intellectual feast.” But what concerned many people watching the hearings was that Bork seemed to argue that the viewpoints and ideas he’d espoused for decades wouldn’t apply to his judgment on the Court, that what he said in 1971 about free speech didn’t apply anymore in 1987 when he just so happened to be asked about it.

By October, a majority of Americans polled by the Washington Post opposed his nomination to the Supreme Court. On October 6, Bork was rejected by the Senate Judiciary Committee, and on October 23, he was rejected by the Senate itself, by a vote of 58-42.

But there was even more to Bork’s story, which came up during his nomination hearings and played into both how Bork was perceived by the public and the ultimate failure of his nomination: his involvement in the Watergate scandal.

From 1973 to 1977, Bork served as solicitor general of the United States, arguing cases before the Supreme Court on behalf of the federal government. (If you’ll recall, it’s during the nomination proceedings for this role that he made his comment about poll taxes.)

On October 20, 1973, President Richard Nixon ordered the firing of Archibald Cox, the special prosecutor investigating Nixon’s knowledge of the June 1972 break-in and attempted bugging of the Democratic National Committee headquarters in the Watergate Complex in Washington. More specifically, Cox wanted 10 hours of Oval Office tapes, which included Nixon’s discussions of the break-in, and rather than give up the tapes, Nixon wanted Cox gone.

Both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to fire Cox, and both resigned from their positions in protest, leaving Bork as acting attorney general. Bork did fire Cox, and though he had planned to resign immediately after doing so, he said that Richardson and Ruckelshaus had urged him to stay for the good of the Justice Department. According to Bork, Nixon promised him the next open spot on the Supreme Court if he fired Cox. The firing of Archibald Cox became known as the “Saturday Night Massacre” and helped to seal the end of the Nixon administration.

To Bork, the decision to fire Cox was one he made as a means of protecting the Justice Department and, in effect, the country. In 1987, the day he was nominated to the Supreme Court, he told the New York Times, “I had, I thought, to contain a very dangerous situation, one that threatened the viability of the Department of Justice and of other parts of the executive branch. ... If that had happened, the Department of Justice would have lost its top leadership, all of it, and would I think have effectively been crippled.”

But Bork’s decision to follow Nixon’s orders had consequences. Althea Simmons, the chief lobbyist and director of the Washington bureau of the NAACP (which opposed Bork’s nomination), testified at the nomination hearing in 1987, and said:

Judge Bork’s writings about constitutional or judicial philosophy are not the only issues of concern to this organization. We have grave reservations about his firing of Archibald Cox. This was an illegal action according to the court and yet, during his confirmation hearings, Judge Bork contended that his actions were lawful.

And she wasn’t alone. Alan B. Morrison, co-founder of the Public Citizen Litigation Group (which had sued Bork over his decision to fire Cox), submitted testimony to the Senate Judiciary Committee, saying in part:

...the most disturbing thing about Judge Bork’s firing of Archibald Cox is what it shows about his views of executive power and his willingness to disregard a solemn compact made between the President of the United States and his Attorney General nominee, on one side, and the Senate of the United States on the other.

The legacy of Robert Bork

Bork would go on to become a widely admired stalwart within conservative circles. He wrote books on morality and virtue and what he viewed as declining moral standards in America. He also argued extensively for a constitutional amendment to ban same-sex marriage, saying in the conservative religious journal First Things in 2004:

By equating heterosexuality and homosexuality, by removing the last vestiges of moral stigma from same-sex couplings, such marriages will lead to an increase in the number of homosexuals. Particularly vulnerable will be young men and women who, as yet uncertain of and confused by their sexuality, may more easily be led into a homosexual life.

And though Bork died in December 2012, the memory of his failed Supreme Court nomination would remain, specifically in the term “Borking.”

In 1991, a woman named Florynce Kennedy told a National Organization for Women conference that with regards to then-Supreme Court nominee Clarence Thomas, “We’re going to bork him. We’re going to kill him politically. ... This little creep, where did he come from?” And since then, “Borking” has expanded. In January 2001, the New York Times even featured a chart of “likely borkees and their probable score on the bork-o-meter,” referring to potential nominees for high-level positions within the Bush administration (John Ashcroft, for instance, received nine Borks).

“Borking” is now viewed as a widely used practice for both Republicans and Democrats, though now it generally means attempting to bring down a high-level candidate with “personal attacks” on something seemingly irrelevant to their jobs. For example, Bill Clinton’s first choice for attorney general, Zoe Baird, was “Borked” in 1993 when news that she had hired an undocumented immigrant as a nanny for her children came to light (her nomination was withdrawn).

And in August of this year, Sen. Hatch — the same senator who had so fervently defended Robert Bork’s nomination — wrote in USA Today, “In their zeal to portray Judge Kavanaugh as the embodiment of our greatest fears, Democrats have gone borking mad.”

But what happened to Robert Bork wasn’t a tragedy. Rather, it was the result of the Supreme Court’s increased importance in American life, and a wild miscalculation by Republicans and Bork himself of how his viewpoints on laws and statutes that, for instance, desegregated American schools and public institutions — and his work on behalf of the only president to resign from office — would be perceived by the American public.

William T. Coleman, a black Republican attorney and a prominent supporter of Ronald Reagan, was a longtime colleague of Bork. But in September 1987, he wrote an op-ed for the New York Times titled “Why Judge Bork Is Unacceptable.” In the piece, he detailed how he believed Bork might overrule landmark cases that hinged on the idea of personal liberty beyond simply not being physically restrained, and curtail the equal protection clause of the 14th Amendment. “When it has counted,” he wrote, “Robert Bork has often stood against the aspirations of blacks to achieve their constitutional rights and to remove the vestiges of racial discrimination.”

But most importantly, Coleman emphasized that the information Americans already had about Bork’s views on the law should matter more than whatever Bork said during his hearings:

In the days ahead, we may hear that Judge Bork has modified long-held positions or that he will not necessarily follow those positions once he becomes a Supreme Court Justice. Such claims will lack credibility. Judge Bork has told us again and again what he believes Justices should and should not do. With an acerbity that brought him notoriety, he has denounced as unsupportable dozens of landmark Court cases, and he has also repeatedly said that Justices should be free to overrule prior decisions they believe are unsupportable. It simply defies common sense to think that Justice Bork would not effectively do what he has built his career saying should be done.

It is possible of course that, invested with the robes, Robert Bork would move within the mainstream of constitutional law. It is against the public interest, however, to take the chance that he will not.

In short, Bork was “Borked” not by Democrats or liberals, but by Robert Bork.