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How Robert Bork's Failed Nomination Led to a Changed Supreme Court

September 21, 2018 in History

By Sarah Pruitt

President Reagan took three tries to get a Supreme Court nomination approved—and the outcome would have far-reaching consequences for the Court and the country.

Reagan nominee for the Supreme Court, Judge Robert Bork, testifies on the fourth day of his Supreme Court confirmation hearing in Washington D C. Bork was rejected by the Senate.

In 1987, President Ronald Reagan got the chance to appoint the third Supreme Court justice of his presidency. But while the first two justices had sailed through the confirmation process, the third appointment turn out to be much, much more difficult. The outcome would have far-reaching consequences for the Court and the country.

After Justice Lewis F. Powell Jr., a long-time “swing” vote on the Court, announced his retirement, President Reagan nominated Robert Bork, a federal appeals court judge. Bork had been serving on the U.S. Court of Appeals for the D.C. Circuit, the nation’s second-highest court, for five years at that time.

A die-hard fan of constitutional “originalism,” Bork rejected what he saw as the Court’s liberal judicial activism, including key precedents like the “one person, one vote” principle of legislative representation, civil rights legislation and cases involving privacy rights. In Bork’s view, the U.S. Constitution included no right to privacy.

Bork’s controversial opinions and writings, and the fear that he would decisively shift the Supreme Court to the right, motivated liberals in Congress to launch an aggressive campaign against his confirmation, led by Senator Ted Kennedy of Massachusetts.

“Robert Bork’s America,” Kennedy declared on the Senate floor, “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…”

Democrats controlled Congress at the time, and the Senate ended up voting against Bork’s confirmation by a vote of 58-42, the biggest margin of any failed Supreme Court nominee in history. Bork’s confirmation fight, and its result, even spawned a new verb. In the years that followed, politicians on both left and right would adopt the practice of “borking” judicial nominees—vigorously questioning their legal philosophy and political views in an effort to derail their confirmation.

President Reagan (R) holding press conference to introduce his Supreme Court nominee Douglas H. Ginsburg.

After Bork, Reagan nominated a more moderate conservative, Douglas H. Ginsburg. …read more


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