Judge Robert Bork, nominated by President Ronald Reagan to the U.S. Supreme Court, passed away Wednesday at age 85.
Judge Bork considered himself an “originalist” with regard to interpreting the U.S. Constitution the way our forefathers intended it. The modern day U.S. Supreme Court Justice with a similar philosophy is Justice Antonin Scalia.
Judge Bork’s nomination was torpedoed in 1987 by two well known U.S. Senators under the advice and consent powers they hold over the nomination process. Those two U.S. Senators were Ted Kennedy and Joseph Biden. It seemed ridiculous at the time – Bork was undoubtedly qualified for the post. But the Senators cited judicial temperament and overtly conservative philosophy as their reasoning for rejecting his nomination.
Judge Bork, who was senior judicial adviser this year to the presidential campaign of Gov. Mitt Romney, played a small but crucial role in the Watergate crisis as the solicitor general under President Richard M. Nixon. He carried out orders to fire a special prosecutor in what became known as “the Saturday Night Massacre.” He also handed down notable decisions from the federal appeals court bench. But it was as a symbol of the nation’s culture wars that Judge Bork made his name.
It is rare for the Senate in its constitutional “advice and consent” role to turn down a president’s Supreme Court nominee, and rarer still for that rejection to be based not on qualifications but on judicial philosophy and temperament. That turned Judge Bork’s defeat into a watershed event and his name into a verb: getting “borked” is what happens to a nominee rejected for what supporters consider political motives.
The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to get confirmed.
Till the end of his life, Judge Bork argued that American judges, acting to please a liberal elite, have hijacked the struggle over national values by overstepping their role, especially in many of the most important decisions on civil rights and liberties, personal autonomy and regulation of business.
You can click on the full article in the New York Times here.
The U.S. Senate’s controversial decision to reject Judge Bork changed history and paved the way for more discussion on jurists not just on their qualifications but instead on grounds of temperament and philosophy.
Judge Douglas Ginsburg was President Reagan’s nominee after Judge Bork, but revelations that he smoked marijuana at Harvard forced him to withdraw (think about that in today’s society). Justice Anthony Kennedy was the Reagan nominee who made it through U.S. Senate confirmation to be on the U.S. Supreme Court today.
Why is this history lesson important?
Had then-Senator Joe Biden and his colleagues approved Bork, there would be a U.S. Supreme Court vacancy right now in the wake of major decisions next year on facets of Obamacare, gay marriage, the role of race in university admissions, federal authority over voting, the cloning of human genes, cop warrants for drug searches, and whether corporations can be sued in American courts for overseas human rights abuses.
In the end, Biden’s 1987 decision places Justice Kennedy in a deciding role as the swing vote on the U.S. Supreme Court. Imagine the scenario that could have developed with an opening on the U.S. Supreme Court. There is very little doubt that a liberal Obama nominee would have sailed through a U.S. Senate which will have more Democrat votes in 2013.
Now Obama and Biden are stuck with the unintended consequence.
(This article originally appeared at ThoughtfulWomen.org.)
Photo credit – White House stock photo, Reagan and Bork, 1987.
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