Recalling the Bork confirmation hearings
When Justice Lewis F. Powell, Jr., announced his intention to resign from the Supreme Court, I was a 24-year-old law/public affairs student working on a summer internship in the Washington office of a then-unknown Texas congressman named Dick Armey. Events in Washington that summer were dominated by the appearance on Capitol Hill of Col. Oliver North and the testimony of his secretary, who revealed that she had secreted government documents out of their office in her boots.
Soon enough, President Ronald Reagan announced that his choice to replace Powell was Judge Robert Bork. Thus commenced the most notably scurrilous confirmation contest of my lifetime.
Since American liberals had become accustomed to seeing the Supreme Court as a third legislative body, they opposed Bork’s position. Senator Edward Kennedy kicked off the anti-Bork campaign with a Senate speech saying that having Bork on the Supreme Court would mean a return to segregation, among other things. Bork later complained in his best-selling The Tempting of America that the Reagan Administration seemed surprised by the coordinated and vehement campaign against his nomination.
Howell Heflin of Alabama, whose uncle had been a vociferous segregationist senator and who himself was no Harry Hamlin, said that Bork’s unusual beard reflected the judge’s “strange lifestyle.” A Democratic operative obtained the records of Bork’s movie rentals—which revealed that Bork had only vanilla, G-rated taste. Actor Gregory Peck cut television ads broadcast nationwide warning what the implications of a Bork confirmation would be.
The vigor of his critics’ campaign proved that Bork was right: his intellectual opponents’ abuse of the office of Supreme Court justice had made that position more significant than that of any senator.
David Hobbs, Armey’s chief legislative aid, allowed me to draft the congressman’s special orders speech endorsing Bork’s nomination—the first one of its kind. In the speech, the congressman emphasized that Bork stood for a return to actual constitutionalism, with judges judging, in place of the judicial legislation that had been in vogue on the Court since the 1930s.
The controversy over the Bork nomination went on through the Fall 1987 semester. As a first-year law student, I was transfixed. As others came and went, I stood in the doorway of the University of Texas School of Law’s Tarlton Law Library watching the Bork hearings live on C-SPAN.
The Bork hearings had all the makings of a circus. On one hand sat the judge, who despite professional political advice opted to lecture the senators rather than sit impassively through their often-incoherent harangues. On the other side was the Democratic majority on the Judiciary Committee, including a chairman in the midst of a scandal over his having delivered a speech plagiarized from a British politician, one member who had been tossed off the Intelligence Committee by its Democratic chairman for leaking documents, another senator who had been a Ku Klux Klansman, and Kennedy, infamous for being tossed out of Harvard for cheating and for leaving a young woman not his wife to drown in his car.
One of the allegations the Democrats, along with liberal Republican soon-to-be Democrats like Arlen Specter and Jim Jeffords, leveled was that Bork talked a good game of originalism, but he did not apply the idea consistently. Bork bristled, insisting that he was consistent even when he was not.
But they had him dead to rights. Originalism, already made famous by then through the efforts of Attorney General Edwin Meese and his crack staff (Bruce Fein, Charles Cooper, William Bradford Reynolds, and others), is the Madisonian idea that the Constitution’s meaning is to be found in the explanation Federalists gave to the ratification conventions. Although Bork explained this idea, he recoiled from its implications, infamously saying during one morning’s hearing that Bolling v. Sharpe was wrongly decided, then “clarifying” his views in the afternoon.
Ultimately, Bork’s nomination went down to defeat. While two Democrats voted to confirm Bork to the Court, several Republicans jumped ship.
After that, Bork turned to writing. His first popular book, a national best-seller, recounted his experience as a nominee and decried the way that the Constitution had been misread for partisan purposes over the previous half-century. Particularly notable were Bork’s account of Arlen Specter’s uninformed questioning and his story of Joe Biden’s falsely analogizing the firestorm over Biden’s plagiarism to the flack Bork was catching from Biden’s allies.
Robert Bork was not the best spokesman for originalism, to which he did not consistently adhere. He failed to win confirmation chiefly because Democrats controlled the Senate and recognized what his confirmation would mean, and also because he haughtily condescended to the professional pols on the Judiciary Committee; the more he talked, the weaker his candidacy became.
In the end, Powell’s seat went to Anthony Kennedy. Here is evidence that individual personalities shape history, both political and judicial.
Kevin R. C. Gutzman is the New York Times best-selling author of four books.