There is no one in America more qualified for this position and no one more deserving.
I will keep an open mind in every case.
With confirmation hearings set to begin for Judge Brett Kavanaugh’s nomination to the
Supreme Court, liberal activists worry that Kavanaugh’s conservative views could mean
the court overturns legal precedence like the right to abortion and gay marriage.
But this isn’t the first time the country has faced the prospect of contentious
Supreme Court hearings.
Thirty years ago, 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 as much 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 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, 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 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, 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, right?
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 v. 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.
You’re undoubtedly correct, Senator, that there are women who are apprehensive.
I think it can only be because they do not 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 that 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 giving new meaning to the term being
Borked.
What did Judge Bork go through.
The little thing called Borking – his name is now a verb.
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, three 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, we want somebody a little bit more moderate.
And they ended 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.
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 Kennedy devoted his career to securing liberty.
I am deeply honored to be nominated to fill his seat on the Supreme Court.
At his confirmation hearings, Judge Brett Kavanaugh is expected to be just as cautious
as past nominees in answering questions from the senators who will decide his fate.