Home » Archives for May 2016

Month: May 2016

Advice & Consent 10: Remands and politics

On this episode…  Supreme Court remands and politics of the POTUS election impacting the SCOTUS vacancy.




Direct download: Advice & Consent 10: Remands and politics (mp3)

Trump’s Shortlist

NY Times: Donald Trump Releases List of Possible Supreme Court Picks

NY Times: Donald Trump’s Docket: A Look at His Supreme Court Wish List

Dorf on Law: Trump’s SCOTUS List and the Garland Nomination

  • Anyone stand out?
  • Surprise missing names?
  • Does this inoculate the Donald amongst conservatives on the SCOTUS issue?
  • Will this be enough to get liberals to the polls on this issue?
  • Does this even remotely move the needle for the Merrick Garland nomination?

Zubik v. Burwell remanded

NY Times: Justices, Seeking Compromise, Return Contraception Case to Lower Courts

  • Did the Court punt on this one? Would a 9th member have led to a ruling?
  • Should we expect a higher than normal batch of remands until #9 gets seated?

Justice Breyer and the 8-Justice Court

Tulsa World: Breyer says Supreme Court not diminished with only 8 members

Advice & Consent 9.5: Garland Forum & Trump's SCOTUS shortlist

Tim handles the show solo this week, but the ragtag gang of the usual suspects shall return next week  as we’ll tackle the latest news in depth and bring part 4 of our Ghosts of Nominations Past series. This week No hearing? How about a forum? Merrick Garland was the topic du jour at a Wednesday forum attended exclusively by Democrats, and the praise for the judge was universal. Read more at Politico.   Meanwhile the House Dems are promising to hold the summer hostage if the Senate doesn’t act on Judge Garland’s nomination.   And because this podcast apparently can’t quit Donald Trump… he released a list of SCOTUS nominees he says he’ll pick from, should he be elected president. The names are notable as being a “dream list” according to some of conservative judges. We’ll talk more about this list next episode, but it’s similar to the list Lena spoke about in episode 02, notably including Diane Sykes, William Pryor and self-proclaimed Tweeter Laureate of Texas (and worth the follow) Don Willett.   “Some people say maybe I’ll appoint a liberal judge. I’m not appointing a liberal judge.” – Donald Trump   http://www.nbcnews.com/politics/2016-election/trump-releases-list-potential-supreme-court-nominees-n576271   http://abcnews.go.com/Politics/wireStory/trump-unveils-list-11-potential-supreme-court-justices-39203784   http://www.cbsnews.com/news/donald-trump-releases-list-of-11-possible-supreme-court-nominees/   http://www.cnn.com/2016/05/18/politics/donald-trump-supreme-court-nominees/index.html   http://www.huffingtonpost.com/entry/don-willett-trump-twitter_us_573cb6bbe4b0646cbeebd2d5?section=politics   Insta-reactions from   “warmly received” by Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network.   John Malcolm, a senior legal fellow at the Heritage foundation who compiled and published the foundation’s list of eight potential Supreme Court nominees in March, called Trump’s selections “excellent.”   AFJAC: Taken together, the records of these potential Trump nominees reflect a radical-right ideology that threatens fundamental rights, and that favors the powerful over everyone else, especially people from historically marginalized communities. Read the release and the report.  


Advice & Consent 09: Questionnaire filings + Clarence Thomas 1991

On this episode…  Merrick Garland’s submits a questionnaire nobody technically asked for, and continuing our series on the ghosts of nominations past: Clarence Thomas 1991.

Direct download: Advice & Consent 09: Questionnaire filings + Clarence Thomas 1991 (mp3)


Welcome SCOTUSblog readers! Episode 8 was mentioned in the SCOTUSblog round up, and we’re grateful for the mention. For new listeners, we refer you to our origin story in episode 1 (no radioactive spiders or Amazon warrior island upbringings, sorry) for more on who we are, what the show is, what it is not and anything else you might be wondering about.

Garland updates

After a boomlet of activity last week, we’ve settled back into the same spot as before: Democrats are noting the ticking clock and comparing the delay to nominations past, and Republicans are fiddling away as their party deals with the circus clown they’ve hitched their wagon to for the fall elections.

The White House submitted Judge Garland’s questionnaire answers (PDF), which is a normal part of the nomination process. What’s different this time is the Senate Judiciary Committee didn’t draft it and has yet to schedule a hearing, which is unusual or perhaps unprecedented by this point in modern SCOTUS nomination history.

Read Huffpo on Judge Garland never being overruled by SCOTUS (and compare to last week’s deep dive into the Bork nomination and how that was a big deal for GOP Judiciary committee members).

Senate meetings scheduled this week for Judge Garland on the Meet and Greet Tour:

  • Tuesday: Sens. Ron Johnson R-WI and Brian Schatz, D-HI
  • Wednesday: Sens. Barbara Mikulski, D-MD., Ed Markey, D-MA, and Tom Carper, D-DE
  • Thursday: Sen. Jon Tester, D-MT

More at NBC News.

“Dahlia Lithwick Fan Club” Segment

DAN:  Just a few hours before we recorded tonight, Slate’s Dahlia Lithwick – who is being honored this week as an American Constitution Society Champion of Justice – published an article bemoaning the challenges of covering something as incredibly hugely massively important as the Garland nomination while (a) nothing of substance is happening – and may never happen, and (b) America and our media are consumed with Donald Trump’s baby-hands and bluster-bombs.  It’s a great piece and you should read it – there’s a link in the shownotes – and here’s how Dahlia sums it up:

Slate:  No News Is No News;  Why it’s virtually impossible to cover Merrick Garland (Dahlia Lithwick)

“There is nothing interesting about nothing happening to a 63-year-old judge. Moreover, the court is, by design, secretive and built of paper, and stories about Merrick Garland’s paper answers to questionnaires will never compete with stories about Donald Trump’s teeny tiny hands. Even the fact that ‘everybody yawns’ when told about a Supreme Court vacancy being blocked in an unprecedented manner in U.S. history isn’t a story. But that doesn’t mean it shouldn’t be.”

Meanwhile, at 1 First St NE…

CNN: Down a justice, John Roberts looks to find compromise, avoid 4-4 ties

Just as we’ve been chatting about on past eps of Advice & Consent…

Ghosts of Nominations past revisted

Continuing our Ghosts of Nominations past series (see Ep 7 for Adam’s brilliant Rehnquist coverage, and Ep 8 for my rapid fire Bork piece).

First… a followup on a question Lena posed to Adam in Ep 7 regarding the length of time it took for the Rehnquist process.

ADAM: Rehnquist took 49 days, which was actually too short. Important parts of his record didn’t come out until after the hearing. And speaking of the da`22ngers of not taking long enough to vet a nominee

This week… our “Kiss Solo Album” series continues with our third edition (We’ll go with the Paul Stanley album), brought to you by Lena Zwarensteyn: the Clarence Thomas nomination of 1991…

Clarence Thomas 1991

My Disclaimer/My Party Factoid: In law school I had to take a theater class and for the final I had to pick a monologue. I chose Anita Hill’s testimony. My professor and I had creative differences regarding my presentation, but thankfully it was pass/fail and I (probably just) passed.

I chose it because I distinctly remember tuning into parts of Justice Thomas’ hearing, and hearing parts of Anita Hill’s testimony. Awkward, dorky and on the cusp of my teens, it struck me and clearly it stuck with me.

So, this is the first confirmation process we’re tackling that involves a Justice currently sitting on the Supreme Court. With respect I continue…

Justice Thomas’ Confirmation: Yes, I watched the movie. And Yes, there’s so much to say. So many different rabbit holes we could go down.

The Backstory:

In 1991, Justice Thurgood Marshall, the first African American appointed to the Supreme Court announced his retirement after serving for 24 years (appointed by D President Lyndon Johnson in 1967). Justice Marshall, who led the NAACP’s litigation fight against racial segregation in Brown v. Board of Education and became a national civil rights leader.

President George HW Bush was responsible for nominating the next Justice and he chose Clarence Thomas.

  • Obviously, the President was NOT trying to seek to fill the role with someone with a similar proclivity toward the law. And he chose a very ideologically conservative and wildly controversial (esp. w/civil rights community) nominee
  • Notable b/c there was a Democratic majority in the Senate (57 Ds – 43 Rs). Not notable in terms of history – long history of ideological switches (think O’Connor/Alito for next week!)
  • This was, in many ways, a signal that filling the seat was the President’s prerogative
  • However, it was a very deliberate choice to select an African American nominee to replace Justice Marshall; and someone who would, by some measures at least, seem to quell concerns from the civil rights leaders and organizations who were very much watching what was happening, especially after the Bork hearings.

Quick tangent for some backstory: President George HW Bush served only one term, but had 2 Supreme Court nominees confirmed. The first was Justice Souter. On July 20, 1990, Justice William Brennan announced his immediate retirement.

So when Justice Marshall announced his retirement a year later, George HW Bush could finally get his pick of Clarence Thomas. Now to bring it back to last week, Thomas had been nominated in October 1989 to fill the seat on the U.S. Court of Appeals for the D.C. Circuit judge that was vacated by Robert Bork.  In March 1990, he was confirmed in a pretty uneventful process.

So here we are though, with Justice Marshall. It’s June 28, 1991 and Justice Marshall announces his retirement (pending confirmation of a replacement). On July 1, President Bush announces Clarence Thomas to be his nominee.

So there is Clarence Thomas, who had been:

  • Asst AG of Missouri;
  • Attorney for Monsanto;
  • Staff to Sen. John Danforth (R-MO) (until 1981);
  • Asst. Sec. for Civil Rights in the Dept. of Education (1 year);
  • Chair of US Equal Employment Opportunity Commission (8 years; until 1990);
  • Judge on D.C. Circuit for 1 year until nominated by President George HW Bush.

Automatically, it’s clear there would be a fight:

  1. This would be the 9th Supreme Court Justice appointed by a Republican President. There were clear signs that a conservative movement was afoot and the President was trying to usher in as many ideologically conservative Justices as possible. Unreliable Souter, aside.
  2. His credentials were a bit lackluster, he was very young at 43 and didn’t have a significant amount of judicial experience from which to evaluate how he might be as a judge or rule. And he would be on the bench for a very very long time most likely.
  3. He had enough of a paper trail that hit on clear issues regarding his views on things like affirmative action and Roe v. Wade.

So the 2 major themes that overlapped in many ways but can also be seen independently:

  1. Race
  2. Gender

ABA: American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.”


  • Senator Danforth (R-Mo.): Thomas’ former boss; went to 60 courtesy visits with Thomas
  • Ken Duberstein


  • 7/1/1991: Nominated to Supreme Court
  • About 2 months later, 9/10/1991: Confirmation hearings begin in Senate Judiciary Committee
    • Committee Make Up: 8 Ds (Biden Chair) and 6 Rs (Thurmond, RM); only remaining Senators who were on the Committee then and still in office: now RM Leahy (D-Vt.), now Chairman Grassley (R-Iowa), Sen. Hatch (R-Utah)

Ds in Majority

  • Biden, Chair – final 7th No vote
  • Kennedy (MA)
  • Metzenbaum (OH)
  • DeConcini (AZ) – voted w/RsLeahy (VT) – led vote against him
  • Heflin (AL) – conservative southerner, considered key
  • Simon (IL)
  • Kohl (WI)


  • Thurmond, RM
  • Hatch (UT)
  • Simpson (WY)Grassley (IA)
  • Specter (PA)
  • Hank Brown (CO)
    • The Committee, based on this alone, could’ve tanked the whole process. BUT THEY DIDN’T.
    • Reasons for Concern:
      • Justice Thomas’ hearing made the Democrats increasingly uncomfortable because of his 1) lack of significant and substantive experience, 2) answers about things like his conservative speeches and writings; his answers to things such as if he ever thought about the constitutionality of Roe v. Wade (where he basically said that he’d have to sit down and write the decision to know how he’d feel about it – despite saying he agreed at one point with the theory that there’s a natural law based right to life).
      • Most of the hearing revolved around Justice Thomas’ view of natural law
        • Sen. Leahy asked Thomas about Roe v. Wade since it was decided when he was in law school; Thomas couldn’t recall discussing b/c he was married and didn’t spend much time debating cases. Leahy asked if he ever talked about Roe “only in a very general sense” where you listen but didn’t debate
      • Some Senators rejected the White House’s strategy for Justice Thomas’ answers – which was to evade all answers, go back to his upbringing.  
  • 9/27/1991: Senate Judiciary Committee Vote deadlocks in 7-7.
    • Despite this, the Committee decided to still send him nomination to the floor just without recommendation of the Committee
    • 7-7 vote split by party, with 1 D (Sen. DeConcini of AZ voting with Rs)
    • Keep in Mind, the Senate was TRYING to settle this before the start of the Supreme Court’s October Term

Nomination went to Senate Floor

  • Floor vote was scheduled for 10/8/1991. But on 10/5/1991, NPR story broke
  • 10/6/1991: 2 days before the Senate vote scheduled; FBI report leaked to press that included private conversations/reports: Professor Anita Hill had to then tell the Senate Judiciary Committee that Justice Thomas sexually harassed her when they worked together at the Dept. of Education and EEOC – asking out on dates, inappropriate statements about rape/sex with animals/group sex, described sexual interest.

This led to a delayed floor vote b/c Thomas asked time to clear his name; get support for his nomination. They weren’t sure they’d have the votes without time to rebut.

Basically, MORE HEARINGS – AFTER  THE COMMITTEE VOTE – happened. Not a normal process at all, but one that was made at the nominee’s request and really was wrenching on so many levels.

  • 10/11/1991: Anita Hill called to testify in front of Committee
  • Committee held 3 days of hearings.
  • Hill gave excruciating detail; all public because the details and specificity seemed to matter in convincing people she could be believed
    • She really wanted to stay silent; didn’t want to make a sexual harassment claim
    • Others did come forward, but they didn’t end up testifying
    • Even submitted to a polygraph test, that verified her statements
  • Thomas adamantly denied
    • Said he was being subjected to a “high-tech lynching for uppity blacks” by white liberals who were seeking to block a black conservative from taking a seat on the Supreme Court.
    • Also declined the polygraph test
    • In reflection, Clarence Thomas’ 2007 autobiography, My Grandfather’s Son.
    • Called Hill his “most traitorous adversary” and saying that pro-choice liberals used the scandal against him.
    • Tried to again discredit Anita Hill as “a left-winger who’d never expressed any religious sentiments whatsoever…and the only reason why she’d held a job in the Reagan administration was because I’d given it to her.”[
  • Hill denied the accusations in an op-ed in the New York Times saying she would not “stand by silently and allow [Justice Thomas], in his anger, to reinvent me”.
  • 10/15/1991: U.S. Senate confirms Clarence Thomas by the narrowest margin in the 20th century: 52 to 48.
  • 10/23/1991: Sworn in as associate justice of the Supreme Court.

Clearly, this stuck with everyone.


  • Despite being barraged by a Committee of all men, Americans got to see this, and workplace harassment was acknowledged, seen by many as very real (don’t ask Sen. Hatch, however; his questions to Anita Hill were, to be kind, offensive, which is a side outcome of how public victim-blaming was/is. From plagiarism to mistaking her source when talking about the name of a porn star Thomas mentioned). Still, it wasn’t considered “THAT BAD.” For many around the country, especially women, however, there was a sigh of relief that someone was publicly talking about workplace sexual harassment, describing common experiences, and not standing down.
    • Reports of sexual harassment to EEOC increased.
  • Not a single woman on that Committee: Inspired women and people who support women to run for office; voices mattered – more women ran for office
  • PUBLIC Hearings – Americans got to see the whole thing and make judgments on their own
  • Process and timing:
    • Thomas has described how demeaning the process was: “No job is worth what I’ve been through — no job. No horror in my life has been so debilitating. Confirm me if you want. Don’t confirm me if you are so led.”
    • Justice Thomas talks about how horrible the process was, how grueling it was for him to spend about 100 days going through this process. Right now, we’re doing that and more for Chief Judge Garland.

Adam:  Washington Post article describing Justice Thomas’ testimony embracing a right to privacy, Senator DeConcini’s reliance on that testimony, and then Justice Thomas’ opinion rejecting the right to privacy in Lawrence v. Texas.

Tim: SNL’s blistering take lampoons the all male Judiciary Committee as being more concerned about Clarence Thomas’ pickup techniques… this was super edgy and just blistered a group of men being the arbiters of sexual harassment.

Highlight performances by:

  • Chris Farley as Howell Heflin
  • Dana Carvey as Strom Thurmond
  • Phil Hartman as Ted Kennedy
  • And future member of the Judiciary committee Al Franken as Paul Simon!


Advice & Consent 08: Will Trump's rise kickstart Garland + Robert Bork 1987

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.”

PFTAW ad: https://www.youtube.com/watch?v=NpFe10lkF3Y 

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.


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.