On this episode… does the likely Trump nomination help Merrick Garland’s chances? And continuing our series on the ghosts of nominations past: Robert Bork 1987.
Direct download: Advice & Consent 08: Will Trump’s rise kickstart Garland + Robert Bork 1987(mp3)
Donald Trump helps Merrick Garland?
Donald Trump is the likely nominee of the Republican party for POTUS. Let that sink in. Now… does that mean anything for the Merrick Garland nomination? Some on the right think so:
Red State: Republicans Should Confirm Merrick Garland ASAP
MSNBC: Conservatives call for confirmation of Obama’s Supreme Court nominee Garland
Does this move the needle?
Ghosts of nominations past: Robert Bork (1987)
A little context: these hearings were within a couple of days away from the bicentennial of the Constitution, and this was frequently referenced throughout. I remember there were a lot of attempts to make 1987 as big as 1976 but it never really got up to that level. Also, there was a Presidential election going on and Judiciary committee chair Joe Biden happened to be running.
Judge Bork was nominated by President Reagan in 1987 to replace Justice Powell and as any listener of this pod surely knows, he was summarily rejected by the Senate 58-42.
He was a highly qualified nominee in the sense he had impeccable credentials: federal appeals court judge, solicitor general, etc.
The thing is you can be very, very talented but have outlier legal points of view that trump your academic and professional qualifications.
Make no mistake, Judge Bork was very political and an idealogue of the first order.
Saturday Night Massacre — Nixon reportedly offered Bork a SCOTUS seat for being try #3 as Solicitor General to fire Special Prosecutor Archibold Cox when the heat got turned up on the then POTUS. This was a contentious point for Bork’s nomination as it appeared blatantly political and possibly unethical.
His legal stances were based in Original Intent – judges shouldn’t go further in interpreting the Const. than the words themselves. Not a “living breathing Constution” kind of guy. For example:
One man one vote? No.
1964 Civil Rights Act? Nope.
Griswold? Eisenstadt? Roe? Privacy generally? No across the board.
Gender equality laws? Ha! No!
You’re gay? We’ve got special rules for your bedroom behavior too.
He was beloved by his fans and bemoaned by those who thought his views were anachronisms. He was the Justin Bieber of SCOTUS noms. A judicial Justin Bieber.
Swift and severe. Every left of center group spun up as they learned more about Judge Bork’s record. Every right of center group spun up to defend his record.
NAACP ED Benjamin Hooks may have said it best – “we will fight it all the way – until hell freezes over, and then we’ll skate across the ice.”
They’re bug eyed zealots if you ask Sen. Alan Simpson. But this process is too politicized (eye roll). But I’m getting ahead of myself…
Judge Bork’s hearing was a debacle for him. Setting aside the weirdness of his video rental habits being leaked to the City Paper (get your heads out of the gutter, he dug conventional dramas) it was Judge Bork who was his own worst enemy.
I’m also struck by THE COMPLETE LACK DIVERSITY during these hearings… All white men. So many issues were being discussed that were outside the scope of these peoples’ experiences… It was really striking to revisit it 29 years later.
I had forgotten it opened up with a trio of sherpas:
President Gerry Ford brought some instant star value (Go Blue)
Sen. Bob Dole came on as sherpa #2 – a much less genial one than the former POTUS.
And taking on sherpa #3 in the replacement role of the home state Senator but because Bork was a DC guy was MO Sen. John Danforth a former law student of his. Remember Senator Danforth… he makes an appearance next week!
Sen. Danforth described Bork’s philosophy as “judicial restraint” which caused me to snarf my beverage nearly 29 years later.
Then Rep. Ham Fish! He said Judge Bork had never been reversed by SCOTUS! So he’s GENIUS and TOTALLY mainstream because getting reversed is the only way you know that you’re out of the mainstream, right? RIGHT!?
Sen. Strom Thurmond (R-MS)
A (formerly) living breathing SNL sketch. BUT… interesting comments relative to today:
Because this process is well understood by the American people, any nominee selected by a President comes to the Senate with a presumption in his favor. Accordingly, opponents of the nominee must make the case against him.
I believe, as I have stated before, that the full Senate should make the final determination on all nominations. The confirmation process should not stop at the committee level. The Constitution requires the advice and consent of the Senate, not simply the opinion of any one committee. I am pleased that both Chairman Biden and the distinguished majority leader, among others, have indicated that they agree that this nomination should be dealt with by the full Senate
Sen. Edward Kennedy (D-MA)
Sen. Kennedy’s “Robert Bork’s America” speech is worth replaying here for the mic-droppy goodness.
In Robert Bork’s America, there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.
Sen. Orrin Hatch (R-UT)
Tried to rebut the Kennedy opening but what stood out more was his view of the Senate’s Constitutional role:
The Senate, however, was given a checking function. In the words of Alexander Hamilton, the advice and consent function was to prevent “nepotism” and “unfit characters.” The advice and consent function is a checking function, not a license to exert political influence on another branch, not a license to control the outcome of future cases by overriding the President’s prerogatives.
Huh. Interesting. Look, I once saw Orrin Hatch at Dulles airport being really really nice to a kid in a wheelchair on a flight to Salt Lake City. Seems like a nice guy. But he’s politics through and through and flips on a dime when it comes to SCOTUS nominations.
Lots more from the other Senators and it’s all on YouTube.
Sen. Biden (D-DE) took Bork on first with questions, particularly probing on whether the Judge found a general right to privacy in the Constitution per Griswold. This is where Bork tried to dodge… rather than say “hell no!” he tried to fudge it by saying Griswold was decided wrong but “who knows… maybe there’s another way?” and Biden didn’t seem convinced (or anyone else frankly).
Sen. Byrd (D-WV) was Senate Majority Leader running the Senate floor votes so he came in super late, but I thought his opening statement really got to the heart of the issue. It isn’t that people had a problem with Original Intent it’s the combination of that with a malleable view on stare decisis that was the problem for Bork. The record tended to show he’d have been way more willing to overturn cases of a certain stripe (i.e. civil rights, executive power etc.) in a very predictable (perhaps political?) way.
Sidebar: IMHO to this day, I think Judge Bork would have had a run on SCOTUS if it weren’t for the fact that he demonstrably favored substantive conservative outcomes. He tried to dodge that by cloaking Original Intent as neither liberal or conservative (true) but he used it in a way that was demonstrably policy driven. Sen. Byrd was one to note this,
Senator Edward Kennedy (D-MA) just dug into Bork… asked if Griswold is no good and there’s no Constitutional right to privacy and a state legislature can pass laws in this area willy nilly, what if a state passed a law compelling abortions? Or something else where the politics were flipped on their head? Then he pulled out his pocket Constitution and dropped a proverbial mic.
Bork was big on saying “there’s privacy all over the Constitution” as a way of deflecting, but his philosophy was the rights were specific and very, VERY narrow. And that’s where Kennedy’s compulsory abortion line tripped him up.
Paraphrasing: Yo, if you nutballs think there’s a right to privacy in the Constitution that protects private conduct in bedrooms then that means Bowers v. Hardwick‘s upholding of anti-sodomy laws is wrong and that’s CLEARLY BANANAS y’all!
Senator Orrin Hatch (R-UT) – ‘MY HAIR IS ON FIRE!!!” The first real moment when the hearing felt anything but polite. Like Sen. Thurmond before him, the questions were super softbally leaders that were more designed to create perfect presentations of a reasonable man with reasonable opinions. Hatch was way off in tone because if you came into the hearing on his questioning you would have thought Kennedy and Biden had him in a rack and thumbscrews beforehand.
Sidebar observation: EVERYONE LOOKS FUNNY. EVERYONE. There was even a question about Judge Bork’s awkward beard by an utterly bemused Senator Heflin.
Unisex bathrooms came up in the context of the 14th Amendment with Sen. Deconcini – you might not be too surprised that Judge Bork wasn’t a fan of unisex bathrooms.
Answered a question on evolution of his points of view by dropping a lengthy Ben Franklin quote. Very pre-Twitter.
Under questioning from Sen. Specter (then GOPer) Judge Bork defended a 1971 memo in which he suggested there was legal support for separate but equal principles that the Court upheld in Plessy. At the committee, he unequivocally supported the outcome in Brown, but didn’t really rebuke that 71 memo. That hurt a lot and was part of a big trend… “Hey I’m a law professor and I need to play around with crazy controversial points of view… but that’s just playing! OF COURSE I’m super mainstream!” He also would protest that when he changed his mind (Civil Rights Act for instance) that it happened and he shouldn’t have had to send out a new release to prove it happened when it did. Problem was, his latter day conversions seemed pretty… Well, latter day. And convenient.
Sen. Howell Heflin tackled privacy in his signature jowly southern drawl. Amazeballs. Bork held firm: one can’t derive a general right of privacy from the Constitution. He kind of danced away from abortion which of course was closely tied to the issue.
Strom Thurmond jumped on a stare decsis grenade tossed by Sen. Heflin about Roe. Heflin backtracked to ask about it generally. Bork gave a pretty canned answer that had a hole the relative size of a Mack truck could drive through.
Interesting: Bork denied he was agnostic as was reported during the hearings. That came up in Sen. Heflin’s opening remarks… it was a weird issue because it broke in the opposite way one expects in the modern politics. Anyone that mentioned it suggested it was a non-issue either way.
I’m most struck with how easy it would have been for a casual observer to listen to Bork and feel like he was totally reasonable. The presentation and confidence he had was very strong… His paper trail however? Couldn’t run from that.
Several days of testimony followed, but all sides had dug in by then and it’s not clear much changed from the testimony.
OPPOSITION AND COLLAPSE
The hearings hurt Judge Bork generally and didn’t succeed in painting the picture of a mainstream conservative. Sen. Biden was running for President during the hearings and his candidacy collapsed right in the middle of them due in part to a plagiarism charge regarding his speeches.
The Judiciary Committee voted against Judge Bork’s nomination by a vote of 9-5, but as we mentioned on past shows that didn’t end the process, just give the full Senate a “no” recommendation.
Biden led the group of Senators in declaring opposition following the hearings, which led to many Repblicans charging him with running a rigged hearing. Despite this most give him credit for running a fair hearing and credit for framing his opposition away from substantive issues like abortion and more on the big ticket issue of Judge Bork’s originalism being incompatible with mainstream Constitutional thought, particularly his opposition to general unemnumerated privacy rights that the Court held in Griswold.
As it became clear that the nomination was going down, GOP support went silent. This rubbed Judge Bork the wrong way for the rest of his life.
The full Senate rejected the nomination mostly along party lines, but 2 conservative Democrats voted yes (Senators David Boren (D-OK) and Ernest Hollings (D-SC)) while 6 moderate Republican Senators voted no (John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (R-PA), Robert Stafford (R-VT), John Warner (R-VA) and Lowell P. Weicker, Jr. (R-CT)).
To “Bork” is now a verb in many a dictionary with a use unlike what really happened in ‘87. He really Borked himself by being too extreme and worse… Too professorial (he said he wanted to be on SCOTUS because it would be “an intellectual feast” — he didn’t get into the serving the country thing). Sen. Kennedy in particular gets flack from the right for the Borking, but he was actually pretty respectful in tone and didn’t ask any question in a gotcha kind of way. It was the answers and how they were delivered that sank Bork. Also, I’m struck that all these tough out of bounds questions were TAME by today’s standards and how they were characterized later by Bork himself as “furious attacks.”
Simply put, you can be a genius and have tons of fans… But that doesn’t automatically make you suitable for the Court. And Judge Bork epitomized that.
The downside of the Bork hearings? Good luck getting real answers out if ANY nominee. Judge Bork pushed the chips all in and revealed his points of view, many well out of the mainstream. The revelation taught later nominees that they had best keep right down the middle as closely as possible… Which led to surprise stealth candidates who, well… Surprised (Justice Souter) and contentless answers from others (Chief Justice Roberts).
This nomination battle was a continuation of the Rehnquist/Scalia hearings and certainly set the table for future nominations. I’ve referred to it as the “original sin” in the past, but I think that’s wrong… I think it was the perfect storm of a brilliant but flawed nominee meeting the new era of SCOTUS nomination scrutiny and probably best marks the beginning of the end of the time when Democrats and Republicans could battle on the Hill then trade stories over a friendly drink at a local pub.
Judge Bork was a Judicial Justin Bieber and he has his beliebers still… And they warm up their baby baby baby’s every time a new nom comes up.