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Robert Bork selection[edit]
Main article:
Robert Bork Supreme Court nomination
Supreme Court Justice
Lewis Powell was a moderate, and even before his expected retirement on June 27, 1987, Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever President
Ronald Reagan nominated to replace him, assuming it would tilt the court rightward; Democrats warned Reagan there would be a fight.
[8] Reagan considered appointing
Utah Senator
Orrin Hatch to the seat, but Congress had approved $6,000 pay raises for
Supreme Court Justices in February, raising a problem under the
Ineligibility Clause of the
United States Constitution, which prohibits a member of Congress from accepting an appointment for which the pay had been increased during that member's term. A memorandum by
Assistant Attorney General Charles J. Cooper rejected the notion that a
Saxbe fix—a rollback of the salary for the position—could satisfy the Ineligibility Clause.
[9][10] Hatch had been on the short list of two finalists with
Robert Bork,
[11][12] but after the Ineligibility Clause had been brought to light, Hatch was no longer under consideration. Reagan nominated
Robert Bork for the seat on July 1, 1987.
Within 45 minutes of Bork's nomination to the Court,
Ted Kennedy (D-MA) took to the Senate floor with a strong condemnation of Bork in a nationally televised speech, declaring, "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens."
[13]
A brief was prepared for
Joe Biden, head of the Senate Judiciary Committee, called the
Biden Report. Bork later said in his best-selling
[14] book
The Tempting of America that the report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility".
[15] TV ads narrated by
Gregory Peck attacked Bork as an extremist, and Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response of Kennedy's "Robert Bork's America" speech stunned the Reagan White House; though conservatives considered Kennedy's accusations slanderous,
[8] the attacks went unanswered for two-and-a-half months.
[16]
A hotly contested
United States Senate debate over Bork's nomination ensued, partly fueled by strong opposition by civil rights and women's rights groups concerned with what they claimed was Bork's desire to roll back civil rights decisions of the
Warren and
Burger courts. Bork is one of only three Supreme Court nominees to ever be opposed by the
ACLU.
[17] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy",
[18] as demonstrated by his role in the
Saturday Night Massacre.
During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988
Video Privacy Protection Act. His video rental history was unremarkable, and included such harmless titles as
A Day at the Races,
Ruthless People and
The Man Who Knew Too Much. The list of rentals was originally printed by Washington D.C.'s
City Paper.
[19]
To pro-choice legal groups, Bork's
originalist views and his belief that the Constitution does not contain a general "
right to privacy" were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court's 1973 decision in
Roe v. Wade. Accordingly, a large number of liberal advocacy groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying
Roe v. Wade.
As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing.
[20] Biden stated his opposition to Bork soon after the nomination, reversing an approval in an interview of a hypothetical Bork nomination he had made the previous year and angering conservatives who thought he could not conduct the hearings dispassionately.
[21] At the close, Biden won praise for conducting the proceedings fairly and with good humor and courage, as his 1988 presidential campaign collapsed in the middle of the hearings.
[21][22] Biden framed his discussion around the belief that the
U.S. Constitution provides rights to liberty and privacy that extend beyond those explicitly enumerated in the text, and that Bork's strong originalism was ideologically incompatible with that view.
[22] Bork's nomination was rejected in the committee by a 9–5 vote,
[22] and then rejected in the full Senate by a 58–42 margin.
[23]
On October 23, 1987, the Senate rejected Bork's confirmation, with 42 senators voting in favor and 58 voting against. Senators
David Boren (D-OK) and
Ernest Hollings (D-SC) voted in favor, with Senators
John Chafee (R-RI),
Bob Packwood (R-OR),
Richard Shelby (D-AL),
Arlen Specter (R-PA),
Robert Stafford (R-VT),
John Warner (R-VA) and
Lowell P. Weicker, Jr. (R-CT) all voting no.
[23]
https://en.wikipedia.org/wiki/Ronald_Reagan_Supreme_Court_candidates#Anthony_Kennedy_nomination
