President Joe Biden nominated Judge Ketanji Brown Jackson to the
United States Supreme Court.
-I am truly humbled by the extraordinary honor of
this nomination.
Biden hopes for bipartisan support, but there's a long history of
contentious confirmation hearings...
-We will abolish abortion!
…starting 35 years ago when the bitter battle over whether to confirm
Judge Robert Bork gripped the nation.
-In the confirmation process, it cannot be the case that anything
goes to win the battle.
What was behind Bork’s defeat?
And how did his hearings change the way Supreme Court justices are
confirmed today?
-You may be seated.
-I today announce my intention to nominate United States Court of
Appeals Judge Robert H. Bork to be an Associate Justice of the
Supreme Court.
In 1987, President Reagan had a unique opportunity, one that hadn’t
occurred in decades, to move the balance of votes on the
Supreme Court in a decidedly conservative direction.
-Republicans were losing fights on school prayer and school busing
and abortion in the Congress, and they wanted to win these fights in
the Supreme Court.
As his nominee, Reagan picked a respected jurist who adhered to a
rigid interpretation of the Constitution, which led him to voice
controversial opinions on social issues.
-My opinion is that there are too many laws in this country and that
we are redressing too many petty grievances.
Democrats saw Judge Bork as someone who would turn back the
clock on established individual and civil rights.
-The Constitution says the United States Senate has much as
responsibility in determining who’s on the court as the President does.
That’s what this is about.
-Hearing will come to order, please.
Day one of Robert Bork’s confirmation hearings started off
with liberal guns blazing.
-The President has sought to appoint an activist of the right
whose agenda would turn us back to the battles of a bitterly
divided America.
-Kennedy created kind of a fiendish picture of Robert Bork.
-In Robert Bork’s America, there is no room at the inn for Blacks, and
no place in the Constitution for women.
And in our America, there should be no seat on the
Supreme Court for Robert Bork.
-He gave a very tough speech taking every one of Bork’s positions
and taking it to its most extreme, logical conclusion.
Even before the hearings began, liberal groups launched an
unprecedented campaign, taking out newspaper and television ads
attacking Bork’s record.
-With respect to Robert Bork, our rights would be less secure.
-Robert Bork wants to be a Supreme Court justice.
But the record shows he has a strange idea
of what justice is.
-That tradition of Supreme Court nominees had been sort of a
genteel one.
The Democrats had different plans, so they, I think, blew
up the playbook that had existed for decades before that.
-You said there is no existing opinion, there certainly is.
-There is not.
That is a vacated opinion, Senator.
Bork’s testimony was televised live for five days and the exchanges
grew increasingly combative.
-But the opinion is there.
-Well it’s in print.
It has been declared to have no legal force or
effect whatsoever.
-And Bork kind of looked funny.
He had a goatee.
And then he said some things that people thought
were just… and they were very Bork.
-As you may have noticed in these hearings, I’ve been taking
unpopular positions frequently in my life.
-He liked to be controversial.
So he was asked, ‘Why do you want to be
a Supreme Court justice?’
-I think it would be an intellectual feast just to, just to be there and
read the briefs.
-Nobody who is politically astute would say something silly like that.
He did.
And, of course, it made him appear to be, sort of, an oddity.
But it played into the hands of those
who were trying to defeat him.
But at the heart of the hearings were Bork’s
controversial early writings.
He had condemned a landmark civil rights law as, quote,
unsurpassed ugliness, and disagreed that the Constitution
protected gender equality, the right to privacy, and abortion.
-Because neither is mentioned in the Constitution.
-Well neither is mentioned.
All that means is that the judge may not choose.
Bork insisted that many of his opinions had changed.
But Democrats were not buying it.
-You have stated views, time again, that would reverse progress for
Blacks, that would slam the door on women, that would allow
government in the bedroom, that would limit free speech, that would
undercut the principle of equality under the law.
-I can’t say this enough times.
You know, beginning with Brown against
Board of Education, I have supported Black equality.
And I have done that in print long before I got here.
I have never said anything or decided anything that should be
frightening to women.
Now you’re undoubtedly correct, Senator, that
there are women who are apprehensive.
I think it can only be
because they don’t know my record.
And I regret to say I think there is no basis for the charges
you have leveled at me.
-He didn’t just give neutral, sort of, fluffy answers to the questions.
He actually engaged in this sort of
dialogue with members of the Senate Judiciary Committee.
But it seems like every time he opened
his mouth and was combative, it helped the Democrats prove their case.
-With his nomination to the Supreme Court in
deep, deep trouble…
-Let us insist the Senate not give in to noisy, strident pressures and that
elected officials not be swayed by a deliberate campaign of
disinformation and distortion.
On the day of the Bork confirmation vote, Senator John Danforth voiced
the fury that many of his Republican colleagues were feeling.
-The man’s been trashed in our house.
Some of us helped generate the trashing.
Others of us yielded to it.
But all of us, myself included, all of us have been accomplices to it.
-Robert Bork was the beginning of the politicization
of the Supreme Court.
This is political.
We’ve got to win the battle.
And if it takes destroying this decent human being
to win the battle, so be it.
-The Robert Bork nomination ended today.
-The yeas are 42, the nays are 58.
The nomination is not confirmed.
-And it wasn’t long before Bork’s name became synonymous with
vilification of a nominee for public office.
-I don’t know that anyone has been Borked the way Bork was Borked
since that, but it’s clearly part of the lexicon.
-Judge Thomas is not only being Borked, but he’s given new
meaning to the term being Borked.
-What did Judge Bork go through.
The little thing called Borking.
-You’re familiar with the verb, to be Borked?
-I’ve heard it here and there.
And I must say to have your name
become a verb is one form of immortality.
Ironically, nearly four decades later, some legal experts see the Bork
hearings as a model for how the judicial nomination process
should work.
-The Reagan administration pitched this one candidate, Robert Bork.
The Senate said, no, it’s not going to work.
We want somebody a little bit more moderate.
And they end up with Justice Anthony Kennedy.
His views of the Constitution have been
pretty much along the lines of what popular expression has been in the
30 years that he’s been on the Court.
So you can argue that, even though it was bad news for Robert Bork,
what happened for the country in the process of selecting a
Supreme Court nominee was exactly the way it’s supposed to work.
-Judge Bork, I think this is important.
-The interesting thing is it had exactly the conversation that one
would want about a nominee to the Supreme Court.
It was a full and open discussion in which the
candidate participated about his judicial philosophy.
We haven’t had that since Bork.
-The sad lesson of the Bork story is it taught future nominees…
-You may be seated.
-...that the only way you’re going to get to this cherished position that
you’ve, maybe, worked your whole life for, is to not be candid.
So they evade.
-I don’t think I could answer that.
-I would prefer to await the particular case.
-I can’t prejudge that litigation.
-They obfuscate.
-Senator, I can’t answer that question in the abstract.
-They basically plead the fifth.
-That means you’re not going to tell us.
-And the American people don’t get a clear sense of where they really stand.
-I am not going to express an opinion because these are very
charged issues, they have been litigated in the courts and so I will
not engage on that question.
-So you’ve told me nothing, Judge.
With all due respect, you’ve not – look, this is – it’s kind of interesting
this kabuki dance we have in these hearings here.
-At the end of the day, you know, they’re still, sort of, blank slates.
That’s why some people were shocked by the Chief Justice’s vote
in the Affordable Care Act case where he sort of switched.
That’s why some people have been
shocked by Justice Kennedy’s embrace of the gay rights cases.
-Justice Breyer, the members of the Senate will decide if I fill your seat.
But please know that I could never fill your shoes.
At her confirmation hearings, Judge Ketanji Brown Jackson is expected
to be just as cautious as past nominees in answering questions
from the senators who will decide her fate.