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).