With Robert Bork’s death on December 19, we have had a chance to look back at the man’s views (as I did in yesterday’s post), and to remember the defeat of his nomination to serve on the U.S. Supreme Court. Even though Bork never served on the Court, his defeat surely mattered. Here’s why.
Many recall that Bork’s nomination to the Court brought out unusually strong, vocal opposition. His legal writings and speeches were mined for extreme views on matters that many Americans had come to take for granted by the 1980s, and critics found examples aplenty. Among other things, Bork had voiced opposition to constitutional equality for women; to equal rights for blacks and other minorities, enforced through the federal Commerce Clause; to rules that required all voters to have an equal vote in elections; and to basic regulatory protections of health and safety. Contrary to what some now say, this was not an unfair characterization of Bork’s legal philosophy. These were Bork’s real views, expressed by him. This allowed opponents to portray him as a cold-hearted character out of the Gilded Age. The confirmation battle spawned a new word: to “bork” a nominee came to mean to oppose the person by distorting his or her record. The description may hold true for some cases, but ironically, not for Judge Bork himself. As legal commentator Jeffrey Toobin has put it, “It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history.”
All of this is well known. But perhaps more significant is the fact that the person who eventually got the seat that Bork did not was Anthony Kennedy. (Almost forgotten is another failed nominee between Bork and Kennedy: U.S. Court of Appeals Judge Douglas Ginsburg, whose nomination was scuttled when reports surfaced that he had been a casual marijuana smoker.) Kennedy has been the swing vote in so many cases and on so many issues, sometimes taking the Court in new, unabashedly liberal directions. Just a few examples: Lawrence v. Texas, finding bans on private homosexual activity unconstitutional; Atkins v. Virginia, finding the execution of the mentally ill unconstitutional; Roper v. Simmons, which held executions of persons who were under 18 at the time of the crime unconstitutional; Boumediene v. Bush, finding that habeas corpus applied to detainees at Guantanamo Bay, and that the Military Commissions Act was an unconstitutional suspension of the right to habeas corpus; and Texas v. Johnson, which found that the First Amendment protected the burning of the American flag. Of course, Justice Kennedy has sometimes swung the other way, but those cases would very likely have come out the same way had Bork been confirmed. We know this for certain: Bork would have taken the Court in only one direction — a much more conservative one. We would be looking at a different America now, in some fundamental and important ways. And in my opinion, it would not be a better America.