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The Ongoing Importance of the Bork Defeat

[ 27 ] July 5, 2013 |

Good point by Jeff Toobin:

The Supreme Court’s embrace of gay rights last week had an almost serene majesty. The obvious correctness of the Court’s judgment, its curt dismissal of a monstrous injustice, had a grandeur that requires little elaboration. Yet the decision had its roots in something prosaic and largely forgotten: the midterm elections of 1986. Until that point in Ronald Reagan’s Presidency, the loyal opposition was more loyal than opposed to the genial Californian in the White House, but Democrats came roaring back, winning control of the Senate with eight new seats. It took Reagan and his aides some time to recognize the realignment on Capitol Hill. After the resignation of Lewis F. Powell, Jr., from the Court, in 1987, Reagan nominated Robert Bork. He would have been an ideological twin to Antonin Scalia, who had been confirmed with ease the previous year. But the Democrats in the Senate, especially the new chairman of the Judiciary Committee, Joseph Biden, picked a fight over Bork and defeated his nomination by fifty-eight to forty-two. In response, Howard Baker, the former senator turned White House chief of staff, urged Reagan to acknowledge the new political realities and make a more moderate choice. Reagan did; he selected Anthony M. Kennedy.

Assuming that Bork would have resigned during the second Bush administration — unknowable, but the most likely outcome given recent patterns — without the defeat of Bork, Section 3 of DOMA would still be in force today. Granted, Romer and Lawrence were 6-3 (remember O’Connor rather than Alito? That’s what passes for the good old days in the current context), although it’s not clear if O’Connor would have been willing to provide a fifth vote for overruling Bowers given that she’s wasn’t willing to provide a sixth. Indeed, for that matter given her Bowers vote who knows what O’Connor would have done with Romer as the swing vote. And, of course, if Bork gets confirmed Roe would have been overruled in 1992. (As I’ve mentioned before, this is the problem with the too-clever-by-half argument you hear sometimes that Republican presidents never really wanted Roe overruled but wanted it around to rally the base. The obvious problem is that Roe survived only because Reagan got his third choice on his last appointment.)

All of which explains why Republicans, abetted by a lot of centrist pundits, have tried to turn one of the few times in which the Senate has made itself useful into History’s Foremost Case of Incivility.

Comments (27)

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  1. Joe says:

    Bork being on the USSC might also have changed the political landscape in various ways so who’s to know, e.g., the results of the elections after his appointment. His appointment was a sort of perfect storm — strident candidate, weak President, swing vote, Dems on the rise. Still, lest we forget, Stevens publicly (to Bork’s annoyance) endorsed the pick!

  2. rea says:

    It’s hard to say, and maybe it would have been different if he had gotten seated on the Court, but based on his post-nomination writings, Bork might well have been a bigger nutjob than Scalia or even Alito.

  3. montag2 says:

    Still, isn’t it just a bit gobsmacking that Kennedy–who never met a Chamber of Commerce he did not like–is portrayed, only by comparison, as “more moderate.”

    Virtually all of the genuinely odious 5-4 decisions in the last twenty-odd years required his participation (and that includes Bush v. Gore).

    I guess it’s another indication of just how far governance in general has been pushed rightward since Reagan. Bork was cranky and cantankerous, was openly proud of being an asshole (and therefore shouldn’t have been at all surprised when people treated him like an asshole), but when it comes right down to the overall degree of damage done, Kennedy’s done right well in that regard–while gaining a reputation as the lesser of the evils because he’s taken a quasi-libertarian view on a few social issue cases. He’s gotten a lot of mileage out of those, all the while fucking ordinary people in the wallet every chance he gets.

  4. Jonas says:

    Out of curiosity, what was Captain Toke (the middle pick between Bork and Kennedy) like? I looked up the Douglas Ginsburg wikipedia page, and there is nothing about his political beliefs or appeals court opinions in there. Would he have been better than Kennedy, or just another nutjob?

    • Scott Lemieux says:

      He probably would have been as bad as Bork or Alito.

      • Jonas says:

        I also found it remarkable that smoking pot disqualified him from being on the Supreme Court, but he remained a circuit court judge for DC Court of Appeals for another 24 years. And by remarkable, I mean I was not surprised at all.

        • Just Dropping By says:

          I don’t see any reason for the snark. The only way he could have been removed from that position was by impeachment. Since he apparently only used marijuana prior to being appointed to the bench (thus no illegal conduct while on the bench) and I can’t find any evidence that he was asked about marijuana use during his confirmation proceeding for the circuit court position (thus no lying to Congress problem), I can’t see how anyone could have gotten the necessary votes to impeach him since there were no “high crimes or misdemeanors” at issue.

          • Jonas says:

            When Fortas was appointed Chief Justice by LBJ, the made-up controversy over him legally taking fees from universities for speaking engagements led not only to his nomination being filibustered, but the relentless media coverage of the controversy meant he was shamed into stepping down from his associated justice position as well. For Ginsburg, actually breaking the law meant that he could be a federal appeals court judge but not a supreme court justice. For some reason, there was no media shaming forcing him to step down.

            And you are right that there is no evidence that he was smoking pot during the year he was a federal judge pre-supreme court nomination. But he had been smoking pot during the 1980s when the Reagan administration was ramping up the war on some classes of people who do drugs. That is why it was important that he not be on the Supreme Court. But a-okay for Appeals Court duty.

          • JazzBumpa says:

            Are you totally unaware of the late ’90′s?

  5. Just Dropping By says:

    The author’s assertion that Bork “would have been an ideological twin to Antonin Scalia,” shows his lack of familiarity with the jurisprudence and writings of both men. Scalia is pretty clearly better on free speech rights than Bork would have been. See, e.g., Scalia’s opinion (joined by Ginsburg, Sotomayor, Kagan, and Kennedy) striking down the law on video game sales to minors in Brown v. Entertainment Merchants Ass’n (http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf). Bork almost certainly would have upheld the law given his often articulated position that the First Amendment applies only to political advocacy and related speech.

    • Djur says:

      Thomas’ dissent in that one cracks me up every time, because it’s one of those cases where he gets to ride his hobbyhorse about how (basically) children have next to no legal rights and are essentially owned by their parents. In this case, he conjured up a principle where the First Amendment does not guarantee a “right to speak to children” without the permission of their parents.

      Actually, if I’m remembering it right, he heavily implied he thought the law should simply forbid selling video games to children at all.

      • efgoldman says:

        …he heavily implied he thought the law should simply forbid selling video games to children at all.

        Probably what he really believes.
        If the founding slaveowners had wanted us to regulate video games, why aren’t they mentioned in the Constitution?
        Aircraft, radio, teeveee, and cell phones, also too.

  6. [...] 6. How the defeat of Robert Bork (and the 1986 elections) matter today, from Scott Lemieux. placeAd2(commercialNode,'inline_bb','adi',''); [...]

  7. cleter says:

    If a confirmed Bork had stayed on until he died, like Rehnquist, we’d probably still be on angry filibusters for whoever Obama appointed to replace him.

    I’ve always thought it was a shame that Ford got to appoint a Supreme Court justice but Carter never did.

    • David T says:

      Ford’s appointee to the Court (Stevens) was not all that bad– though on flag-burning he was worse than Scalia! OTOH, if Douglas had managed to hold on until after Carter’s election, Carter probably would have made history by naming the first women to the Court–Shirley Hufstedler. (Which in turn means that Reagan would probably have appointed someone other than–and likely worse than–O’Connor. He appointed O’Connor to fulfill his campaign promise to appoint a woman to the Court–appointing the *second* woman just doesn’t have the same headline-grabbing quality…)

      • cleter says:

        Yeah, Stevens wasn’t as bad as somebody Reagan would have picked. But if you take one Reagan appointee away and give Carter a pick, the implications are huge. Swap out Shirley Hufstedler for O’Connor on Bush v Gore, for one.

  8. Passing By says:

    ” the relentless media coverage of the controversy meant he [Fortas] was shamed into stepping down from his associated justice position as well”

    Actually, Justice Fortas resigned when it came out that he’d been taking secret money from a sleazy [perjury, obstruction of justice] finance guy.

  9. Bitter Scribe says:

    The only reason Bork isn’t still complaining about being kept off the Supreme Court is because he’s dead.

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