Bork 2.0?

The Bork hearings have come up in the context of the Kavanaugh confirmation, Some thoughts ensue.

Yes, the failed confirmation of Robert Bork is often seen as an inflection point after which a) there was more attention to a nominee’s potential paper trail, and b) we see some narrowing of the margin of victory of nominees (although not as much as many tend to assume).  I do wonder, however, as to the degree to which it really is true (except, perhaps, in the immediate aftermath of Bork) that the paper trail issue really has been a major issue.  Further, the shifts in margins of victory are more likely the result of increased polarization of the parties than they are about Bork in particular.  Really, the main issue in terms of the politics of nominations is the long-term strategy of conservatives to try and correct what they saw as judicial overreach in Roe in particular (and, really, what they perceived as an overly liberal Court from the 1950s and especially the 1960s).  For more on that, just look at the history of the Federalist Society.

Bork has become a legend of sorts especially in conservative circles.  After all, the main sound bite from the time is Bork being pilloried by Senator Ted “the Liberal Lion” Kennedy–what more proof is needed of the injustice of it all than that?  It certainly was a narrative that Rush Limbaugh and his allies have actively pushed for decades (and probably still pushes).  On the more concrete side of things, it is true that the loss of Bork meant that Kennedy got the seat instead, and hardcore conservatives rightly would have preferred Bork to Kennedy (of course, Bork died in 2012, so if he has been nominated, the odds are that Obama would have replaced him, so there is that counterfactual worth considering as well).  And, as long as one is playing “what if?” maybe George H. W. Bush would not have appointed Souter or Thomas (on the “paper trail” theory), but who knows?

When assessing the Bork nomination, and the degree to which it was unfair treatment that led to his demise, keep in mind that the Democrats has a 10 seat margin (55-45) in the chamber in 1987 (Bork eventually was rejected 42-58).  As such, just knowing that, one should realize that a highly conservative judge like Bork might have had a hard time getting confirmed as a general matter.  Further, it is often forgotten in this conversations that Bork was Nixon’s Solicitor General (and Acting AG at one point) and played a direct role in the “Saturday Night Massacre” to fire the Watergate special prosecutor, Archibald Cox.  That was in 1973.  For Bork to be in the position to be on the Supreme Court a mere 14 years later would have already been a strike (or two) against him with many in the Senate who has been in office during the Nixon administration. This history would have been enough to create doubts in the minds of some in any event. In fact, the Watergate connection was the opening paragraph of Kennedy’s speech, not the bit about “Robert Bork’s America.”

Further, if one reads any of Bork’s post-nomination books (such as Slouching Towards Gomorrah) one notes that Bork was pretty reactionary in many of his views. So, if one peeks behind the mythology of the “borking” the reality is that the partisan make-up of the chamber combined with Bork’s own history was enough to create a context in which his nomination was going to face an uphill battle.

Yes, his was the most contentious of the Reagan SCOTUS votes, but if we go back to Nixon we find two outright rejections, so it isn’t as if some utterly new ground was broken with Bork.  Further, Souter and Ginsburg won with 90+votes, Breyer with 87, and Roberts with 78.  In other words, while it is fair to say that the process has become more partisan since Bork, the borking did not lead to an utter change to SCOTUS confirmations (despite what the mythology tends to suggest).  However, it is also fair to note that this time span was one during which the parties re-aligned (e.g., the shift of southern Democrats to Republican) and the increased polarization of the parties. (The history of Senate SCOTUS votes can be found here).

So, is this Bork II:  the Return of the Borkening?  In the sense that this is clearly going to be a contentious vote, sure (but  that isn’t unique to Bork).  To the degree to which this a a major inflection point where we will have to deal with last-minute accusations going forward?  No, I don’t think so.  I do think it will mean more careful vetting of future nominees, however (especially for the next several).

Really, I think this current situation is far more about the #MeToo movement and our ongoing, national attempt to come to grips with sexual misconduct of various types than it is about Bork 2.0.

Of course, I especially think that because I think the Bork vote is given an out-sized place on our political mythology (probably re-inforced by the fact that for a lot of people currently in politics or writing about it it was the first hearing they really remember).

FILED UNDER: Law and the Courts, Supreme Court, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. teve tory says:

    6 republicans voted against Bork. I doubt we have 6 principled republicans in the senate today.

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  2. John430 says:

    Dunno if it is true, but I came across a short article that suggests that open, public confirmations of Supreme Court nominees are the result of the anti-Semites trying to block the confirmation of Justice Brandeis. Before that the nominees were questioned by Senators in conference and Senators only. I think we should go back to that. Comments?

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  3. Teve says:

    Bork claimed that states should be free to enforce Jim Crow laws and thought the Civil Rights Act was unconstitutional. No wonder the racists in the GOP still have a boner for him.

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  4. An Interested Party says:

    Despite the elegy for Bork from conservatives, he was at least given a hearing and a vote, far more than Merrick Garland ever received…so while some conservatives wallow in their victimhood, let us at least remember that much…

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  5. Moosebreath says:

    @An Interested Party:

    Even more than that, he was given a full floor vote after losing in the Judiciary Committee. It seems that Republicans have been outraged for decades over Democrats accurately stating Bork’s views and rejecting him based upon them.

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  6. OzarkHillbilly says:

    @John430: Yeah, because govt conducted in the shadows is so open and honest.

  7. @John430: I do not know the origins of the current process, and as much as I think that the public hearings have more than a bit of farce to them, I still favor a public process for appointment to such a vital, and powerful, position.

  8. Just nutha ignint cracker says:

    @John430: Well, if the nominees are going to be political hacks, it’s probably better for the Senate to go behind closed doors. On the other hand, there seem to be enough supporters of hackery in the general public for Senators to use public hearings to their advantage.

  9. wr says:

    @TM01: “Just wondering if it’s relevant to mention that.”

    How could it possibly be relevant?

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  10. Kari Q says:

    @John430:

    Is it your contention that problems can be solved by providing people less information on what their elected officials are doing?

  11. Gustopher says:

    @TM01: It’s always exciting when the far right comes up with a new and novel idea.

    We should absolutely dig up Ted Kennedy’s corpse and put him on trial for negligent homicide. I recommend a closed casket trial, since he’s been dead for most of a decade.

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  12. @TM01: The only thing needed to make your comment a perfect example of “whataboutism” is the lack of the phrase “what about.”

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  13. de stijl says:

    @TM01:

    Didn’t Ted Kennedy drive drunk and kill a woman?

    That was a really horrible “Hey! Squirrel!”

    A. Your squirrel is dead.
    2. Your squirrel is not remotely relevant.
    Gamma. you did not invoke Colin Kaepernick, MS-13, or Agenda 21.
    Ring finger. Once, you called me anti-Semitic. On that and from you, I will never forget nor forgive.

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  14. steve says:

    The rumor was that Bork was promised a seat on SCOTUS if he agreed to fire Cox. Is that true?

    Steve

  15. george says:

    @An Interested Party:

    Despite the elegy for Bork from conservatives, he was at least given a hearing and a vote, far more than Merrick Garland ever received…so while some conservatives wallow in their victimhood, let us at least remember that much…

    A thousand times this.

    The GOP was pretty open about the game they were playing with Garland (the gamble that if they blocked Garland they’d win the presidency and the right to appoint the next justice). They pointed out that politics was hardball, and not for the feint of heart. Its nice to see the Dems playing hardball in return.

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  16. Leonard says:

    @John430: It only really got rolling in the 1950’s when the Democrats politicized the Court over race.

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  17. Gustopher says:

    @Leonard: Are you referring to Brown v. Board of Education?

    Bless your heart, sir, bless your heart.

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  18. An Interested Party says:

    It only really got rolling in the 1950’s when the Democrats politicized the Court over race.

    How dare anyone wanting to have schools with black and white students together! The horror of it all! It’s so sad when white people are denied their God-given right to be racists…

  19. Just nutha ignint cracker says:

    @Kari Q: Well you have to admit that it’s certainly possible that the GOP’s problems can only be solved by providing the public with less information. It’s could be that’s what he was referring to.

  20. Just nutha ignint cracker says:

    @Leonard: Ooh! That was blunt.

    Does your hood ever slip down over your eyes and block your vision? And are you the same guy that was saying that immigration is not a race issue?

  21. John430 says:

    @Kari Q: No. I just meant that a hearing should not be a 3-ring circus. If you recall, the Senate is supposed to be a deliberative body.

  22. Leonard says:

    Dummies, do you even realize which side the Democrats were on when they began politicizing the Court over race?

  23. An Interested Party says:

    Dummies, do you even realize which side the Democrats were on when they began politicizing the Court over race?

    Well, most of the Democrats from the South were on the side you seem to occupy…

  24. Eric Florack says:

    I have yet to see any kind of counter-indication to the following rule… The more originalist the nominee, the more shrill the Democrats get.

  25. Grewgills says:

    @Eric Florack:
    Translation:
    The more regressive the candidate, the more progressives are opposed to the candidate.