Robert Bork’s America

As I was doing this research on this long saga of the life and administrations of Ronald Reagan, I found a few things that I pulled to the side for later exposition. This is the first of them, on the infamous Robert Bork...

On July 1, 1987, Ronald Reagan stood before the cameras and nominated Robert Bork to the Supreme Court. He called the judge “well prepared, evenhanded and openminded”.

Within about 45 minutes (sources do differ on the clock), Ted Kennedy was on the Senate floor. He opened with a phrase that would outlive both of them: “Robert Bork’s America.” He described a country of back-alley abortions, segregated lunch counters, midnight police raids and censored art. Bork’s own verdict, years later: “There was not a line in that speech that was accurate.”

Notice what that concedes. The speech was wrong, and it worked anyway. A nominee with a sterling résumé, a presidential endorsement and a Senate that had already confirmed him to a federal appeals court was in trouble before the afternoon was over. The Senate was ready to turn this one aside, and that says a lot.

The speech explains part of it. The nominee and the man who picked him explain the rest. This episode is about both.

The Seat That Mattered

Powell was the swing vote. The pick was less Reagan’s than the legend says.

Lewis Powell announced his retirement on June 26, 1987. He was widely understood as the Court’s centrist, the vote that decided the close ones on abortion, affirmative action and the rest of the culture war’s front lines.

You might picture Reagan weighing options. He mostly ratified a choice. The Justice Department under Attorney General Ed Meese ran judicial selection, and a small review group chaired by Brad Reynolds screened appeals-court judges as future Supreme Court material. In the department’s 1985 review, Bork and Scalia topped the list “by a wide margin.” According to one account, Meese “had convinced Reagan to select Bork,” over the hopes of Chief of Staff Howard Baker and Counsel Arthur Culvahouse for someone more moderate.

You have met both men. Meese is the Attorney General whose own investigators, as we saw in the Iran-Contra episode, found him “personally and closely involved” in the Iraqi pipeline matter. Reynolds, per his Wikipedia entry, assisted Meese’s initial Iran-Contra inquiry, the one that produced the false statement about the Hawk shipment. He also carries a distinction that should disqualify anyone from chairing a judicial vetting panel: on June 26, 1985, the Senate Judiciary Committee voted 10 to 8 to reject his own nomination as Associate Attorney General, with two Republicans joining the Democrats. The man who ran the list had been turned down by the Senate himself.

This is the Fulcrum’s recurring pattern, stated versus mechanism. The stated aim was a judge of “restraint.” The mechanism was a Justice Department list that rewarded a long, legible theoretical record, which meant a long, legible target.

The Lesson of 1981

Reagan’s first pick taught his own department what not to do again.

To see why the department wanted a nominee it could read in advance, go back to Reagan’s first appointment. In 1980 he promised to name the first woman to the Court. He formally nominated Sandra Day O’Connor on August 19, 1981, and the Senate confirmed her 99 to 0 on September 21. Goldwater and Rehnquist supported her. Pro-life leaders, Jerry Falwell among them, raised objections at the time.

She was a former Arizona legislator and state appeals judge with a thin paper trail and a long career in the middle. She sat on the Court for 24 years. In 1992 she co-authored the joint opinion in Planned Parenthood v. Casey with Anthony Kennedy and David Souter, which upheld the core of Roe v. Wade. Kennedy, remember, is the man Reagan named after Bork fell. The opinion that kept Roe alive had two Reagan appointees on it.

Conservatives still carry that as a grievance. Josh Hammer, writing in PJ Media this April, names her alongside Amy Coney Barrett as the sort of nominee picked to placate the Court’s moderates. The Daily Signal ran a 2024 piece titled “No More Souters” making the same argument. Both are advocacy outlets, so read them as the movement’s view, not a neutral verdict.

Her defenders would say she did what a judge is supposed to do: decide cases one at a time without a master theory. By that standard she was never an ideologue and never claimed to be. The grievance is about what the movement hoped she would be.

Either way, the department’s takeaway was plain. Trust had failed once. This time they wanted a nominee whose views were written down. Robert Bork had been writing his down for a quarter century.

The Early Record

Bork was not ambushed. He had published his positions for 24 years, and the Senate read them.

Start in 1963. Bork wrote a piece in The New Republic opposing the public accommodations section of the pending Civil Rights Act. He called the principle behind it one of “unsurpassed ugliness.” The core was a libertarian argument. Forcing people to deal with those they would rather avoid is coercion, he reasoned, and freedom of association will inevitably be used in ways most people abhor.

Hold that thought, because it is the Book Three thesis arriving early. A conservative legal mind reasoned from freedom to a conclusion most Americans found indefensible. Bork was the purist whose consistency was the problem.

Then 1971, when the Indiana Law Journal published his “Neutral Principles and Some First Amendment Problems”, among the most cited legal articles of the century. In it he argued that the Court had no business finding rights the Constitution did not name. That meant the privacy right underlying Griswold, the contraception case, was invented. It also meant skepticism toward Shelley v. Kraemer, the case barring courts from enforcing racially restrictive covenants.

Neither position was secret. When the D.C. Circuit confirmed him by voice vote on February 8, 1982, both were already in print. They were in the hearing room again five years later.

The Saturday Night Massacre

In October 1973, one man was asked to do what two superiors had refused. He did it. The Senate remembered.

This is the section Bork spent the rest of his life explaining.

Archibald Cox, the Watergate special prosecutor, had subpoenaed Nixon’s White House tapes. The D.C. Circuit upheld the subpoena on October 12. On October 19, Nixon offered the Stennis Compromise, a summary of the tapes verified by a friendly senator, and Cox refused it. Cox was removable only “for cause.”

On October 20, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused and resigned. Deputy Attorney General William Ruckelshaus refused and was out (the White House said fired, Nixon’s letter to Bork said resigned, and the AP’s account says fired, so sources differ). That left the Solicitor General, Bork, as acting head of the Justice Department. Bork fired Cox.

Bork’s account, and his defenders’, is that he considered resigning, that Richardson and Ruckelshaus urged him to stay for the good of the Department, and that he believed the order was legally valid. His posthumous memoir, according to AP’s report, says Nixon told him he would get the next Supreme Court vacancy. He privately called the episode “Saturday Night Involuntary Manslaughter.”

The fallout was immediate. Western Union reportedly delivered some 71,000 telegrams in 36 hours, at least 22 impeachment resolutions were introduced, and an NBC poll had Americans split 44 to 43 in favor of impeachment. On November 14, Judge Gerhard Gesell ruled in Nader v. Bork that the firing was illegal absent extraordinary impropriety. Bork stayed on as acting Attorney General until January 4, 1974. Leon Jaworski became the new special prosecutor on November 1, a choice Bork made with Nixon’s approval.

Here is the connection to this series. Congress answered the Massacre with the Ethics in Government Act of 1978, which created a court-appointed independent counsel so that no president could fire his own prosecutor again. That statute is how Lawrence Walsh was appointed on December 19, 1986, by the Special Division, to investigate Iran-Contra.

So the man who fired one special prosecutor was nominated by a president who spent 1987 under investigation by another. I am not saying Reagan chose Bork for that reason. I am saying that is the room the hearing took place in.

Twelve Days

The hearings were televised. The nominee was brilliant, combative and visibly unwilling to pretend.

The Judiciary Committee began on September 15 and ran twelve days, with Joe Biden presiding, on television. That turned out to matter.

Even critics concede Bork was formidable and gave real answers. The trouble was what the answers did. Paul Simon, who sat on the committee, later wrote that Bork would probably have been approved at the start of the hearings, and that his combative manner hurt him.

Then came the recantation. Pressed on the 1963 piece, Bork said the Civil Rights Act and the other equality laws of the 1960s “helped bring the nation together in ways which otherwise would not have occurred.” He said he found segregation immoral. The Christian Science Monitor reported that he struggled to explain the gap between his writings and his testimony, which produced the charge of a “confirmation conversion.”

That is what the paper trail did. A nominee who had said one thing for a quarter century and another for twelve days had no good options. If he stood by the writings, the writings sank him. If he disowned them, the disowning did.

The Defenders’ Case, and the Vote

The strongest argument for Bork is not that he deserved to win. It is that the fight was not entirely fair.

I owe you the other side, because it is a real one.

Ilya Shapiro of the Cato Institute has argued that the opposition was ideological and the tactics unfair. The People for the American Way ads, narrated by Gregory Peck, were pure fear. A 1988 Western Political Quarterly analysis cuts against the label of “extremist,” finding that his D.C. Circuit record was less radical than the caricature.

All of that can be true. It can also be true that a nominee’s written philosophy is fair game, and that the Senate is constitutionally entitled to weigh it. Both are true at once.

The vote tells the story. The committee voted 9 to 5 against on October 6, with Arlen Specter joining the Democrats. On October 23, the full Senate rejected Bork 42 to 58. Forty Republicans and two Democrats voted for him. Fifty-two Democrats and six Republicans voted against: Chafee, Packwood, Specter, Stafford, Warner and Weicker.

Six Republicans, in Reagan’s own party, in Reagan’s own Senate.

Not the First

It had happened before. It had not happened like this.

Had the Senate ever rejected a nominee? Yes. By roll-call vote, eleven times, starting with John Rutledge in 1795 (10 to 14).

The closer precedents run through the twentieth century. In 1930, Judge John Parker fell 39 to 41, in a fight involving labor and the NAACP. In 1969, Clement Haynsworth lost 45 to 55 over financial conflict-of-interest questions. In 1970, G. Harrold Carswell lost 45 to 51 over a thin résumé and a record on race. Bork’s 16-vote margin, by my arithmetic, is the widest of the eleven.

So rejection was not new. The manner was: a nominee defeated on philosophy, in public, on television, with the whole country invited to read his papers.

What Reagan Said

He called it a campaign of political pressure. He said history would vindicate the judge.

In his October 23 statement, Reagan said he was saddened and disappointed that the Senate had bowed to a campaign of political pressure. He called the confirmation fight a spectacle of misrepresentation and single-issue politics, and said “Judge Bork will be vindicated in history.” He promised his next nominee would share Bork’s belief in judicial restraint.

Look at the sequence. The president read the Senate’s verdict as a smear, not as information about the nominee. Reagan’s next pick, Douglas Ginsburg, withdrew over marijuana use, and Anthony Kennedy was confirmed 97 to 0. Bork resigned from the D.C. Circuit, and his service ended February 5, 1988.

The Method

The movement lost the nomination and kept the lesson.

Set three numbers side by side. Antonin Scalia was confirmed 98 to 0 in September 1986, in a hearing that did not press him hard. Bork lost 42 to 58 a year later. Kennedy sailed through 97 to 0.

Scalia and Bork are not opposing philosophies. By most accounts they are close cousins. The difference is the paper trail. Bork wrote it down for a quarter century and defended it under oath. Scalia had spent a few years on the bench by the time his hearing came. Scalia’s originalism has also drawn criticism from inside the conservative legal world, including Judge Richard Posner’s charge of “faux originalism.” Critics argue the Framers disagreed among themselves about how to read their own document, so treating one fixed original meaning as the answer imposes a certainty they never had.

The other half of the lesson arrived in 1990. George H.W. Bush nominated David Souter on the advice of John Sununu, who urged the pick as a sure thing for the movement. Two years later Souter joined the Casey majority, and by his 2009 retirement he voted reliably with the Court’s liberals. The slogan that followed, “No more Souters,” meant no more stealth nominees.

So the sequence runs like this. O’Connor was chosen for trust, and trust failed. Bork was chosen for record, and the record sank him. Souter was chosen for the absence of a record, and the absence cut the other way. The movement’s lawyers drew the obvious conclusion: build a record just thick enough to prove loyalty and thin enough to survive a hearing.

The Federalist Society was founded in April 1982 at a Yale symposium where Scalia, Bork and Ted Olson spoke, and Scalia is listed as an original faculty adviser. It was a small affair then. How much it later shaped nominee selection is a story I haven’t sourced here.

The Word

The Senate rejected Bork. English got a verb out of it.

“To bork” arrived within weeks. William Safire traced a possible first use to August 20, 1987, in the Atlanta Journal-Constitution. The OED added it in March 2002.

Adam White argued in Commentary, under the headline “Bork Won”, that the conservative legal movement lost the nomination and won the long war. You can read that as a defense of Bork or an indictment of the process. Both readings are available.

Here is the Fulcrum reading. Reagan’s Justice Department picked a man whose record said what the White House’s rhetoric would not. The Senate read the record. The coalition learned to manage its judges’ papers, not to change its judges. In January 1989 Reagan would give his last speech from the Oval Office, with another set of papers in front of him, and the man who had spent eight years choosing his words would pick the ones he wanted to be remembered by.

That is the Farewell.