On Dec. 19, 2012, one of the great patriots in America died at the age of 85. Judge Robert Bork passed away from heart disease after a lengthy career serving our nation. He was also one of the most brilliant constitutional scholars in the history of America.
Many of you may not remember Judge Bork because he has not been on the front pages of newspapers for years. However, there was a time when most households in America knew him by name.
Judge Bork served as a federal appeals judge for many years and then went on to serve the White House as the U. S. Solicitor General and Acting Attorney General. It wasn’t until 1987 that he became a largely known public figure. During President Reagan’s second term, he nominated Judge Bork to replace Judge Lewis Powell Jr. on the U. S. Supreme Court. What is remembered about this nomination is how it affected our federal judiciary.
Before Bork’s nomination, the Senate, which must vote to confirm a nominee, generally deferred to the president and confirmed his nominees. That is not to say that there have not been failed nominees before Bork or contentious confirmation hearings. However, past nominees were typically judged on their character, not their ideology.
The confirmation process changed dramatically in 1987. When Judge Bork was nominated, he became a target for the late Senator Edward Kennedy and left wing interest groups who charged that he was too conservative. (Even though Judge Bork has always had conservative critics, too). A massive lobbying campaign ensued against him and the Senate defeated his nomination by a 58-42 vote. (Six Republicans voted against him while two Democrats voted for him). Judicial philosophy would forevermore be front and center in the confirmation process of federal judges.
Judge Bork’s last name became a verb in popular culture after his defeat. To be “borked” means to defeat a judicial nomination through a concerted attack on the nominee’s character, background and philosophy. That is the “cleaned up” definition.
President Reagan would eventually nominate Anthony Kennedy. Judge Kennedy was confirmed by the Senate. He is still serving on the Supreme Court. Justice Kennedy is also the most powerful judge in America because he so often holds the deciding vote in the many 5-4 opinions of late.
Judge Bork’s nomination process would embolden some unscrupulous Senators to take confirmation hearings to a new level of unprofessionalism, character assassination, and viciousness. In 1991, President George H.W. Bush nominated Georgia’s own Clarence Thomas to replace Thurgood Marshall on the Supreme Court. Justice Thomas, one of the most humble, forthcoming, and honest men in the judiciary, endured the most undignified confirmation hearing in all of history.
Some members of the Senate, including then Senator Joseph Biden, behaved in such a manner that I cannot even describe in this column because it would be inappropriate for children to read. Despite this, Justice Thomas was confirmed. He is still an associate justice on the Court.
Judge Bork’s failed nomination had lasting effects that are felt even today. Now, when a president, Democrat or Republican, nominates a federal district, appellate, or supreme court judge, the attention turns immediately to judicial philosophy. Many qualified men and women have been brushed aside, not confirmed, or have simply chosen not to serve because of the current process of Senate confirmation.
As for Judge Bork, after losing the nomination he continued to write books and articles at the American Enterprise Institute and the Hudson Institute. As recently as last month’s presidential election, Bork was an advisor on judicial nominations to Republican nominee Mitt Romney.
Whatever you think of the life of Judge Robert Bork, it is undeniable that his confirmation hearing in 1987 changed the way we treat our federal judicial nominees.
Swindle is a local attorney at law.