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The Ongoing Importance of the Bork Defeat


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.

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