Mark Gitenstein was chief Democratic counsel for the Senate Judiciary Committee from 1981 to 1989. Part of this op-ed is derived from a book he wrote on the Bork fight, “Matters of Principle.” He served as U.S. ambassador to Romania from 2009 to 2012 and practices law in Washington at Mayer Brown LLP. His views are his own, and not that of the firm.
Retired federal judge James Robertson regrets his role in helping to defeat Judge Robert Bork’s nomination to the Supreme Court in 1987 because, he wrote, it kicked off a “Thirty Years’ War on judicial appointments.” I’m sorry Robertson regrets his conduct. I do not. I served as chief counsel of the Senate Judiciary Committee during the Bork hearings, and I remain proud of my part in helping to defeat the nomination.
In June 1987, the retirement of moderate Justice Lewis F. Powell Jr. set the stage for an enormous fight about the future of the court. Powell had been the decisive vote in many decisions on the most sensitive issues before the court. President Ronald Reagan saw the vacancy as an opportunity to change the direction of the court for years to come by nominating Bork, the “philosopher king” of the conservative legal movement, as some described him.
And Bork, through his writings and his testimony, clearly signaled how dramatically he would shift the court to the right. Democrats didn’t “Bork” the nominee — he “Borked” himself. My boss, Chairman Joe Biden, pleaded directly with the president not to select Bork. But the administration and its allies seized the chance to reverse the liberal jurisprudence of the Warren Court. They were especially eager to undermine the notion of “fundamental rights,” notably the right to privacy and personal autonomy that provided the doctrinal underpinning for the right to abortion and, many years later, same-sex marriage.
So Reagan started the war, not the Judiciary Committee or those who found Bork’s views unacceptable. Bork partisans miscalculated the support the nominee and his legal approach had among the American people and in the Senate. Bork was rejected by a vote of 58 to 42. Eventually, the vacancy was filled by Anthony M. Kennedy, who has played a moderating role on the court, and the bruising nature of the Bork battle may also have influenced President George H.W. Bush to select David Souter. Both Kennedy and Souter distanced themselves from Bork and made clear in their testimony that they shared the fundamental rights jurisprudence, and Kennedy went on to author the decision establishing a constitutional right to same-sex marriage.
That decision and numerous others where Kennedy and Souter were the deciding votes make the case that the Thirty Years’ War was worth fighting. By not surrendering to Reagan, the Senate determined the direction of the court for three decades.
Indeed, the Bork battle is far from the only “war” over the court in its history. Andrew Jackson sought to use the court to thwart his nemesis, the Second Bank of the United States, in the early 19th century. Franklin Roosevelt did the same a century later when a conservative majority blocked his New Deal. Indeed, changing the direction of the Supreme Court was a key election platform for Roosevelt in the 1936 election.
To be clear, under the Constitution, all three presidents were perfectly entitled to try to shape the court’s direction through their choice of nominees. By the same token, the Senate was empowered, indeed obligated, to block those presidents if they disagreed.
So the argument that the Bork fight was somehow illegitimate is far off the mark. In fact, the framers probably assumed that these struggles would be political. The first serious struggle over a Supreme Court nomination, George Washington’s choice of John Rutledge to be chief justice, was as political as you can get. Rutledge was defeated because of his position on the 1795 Jay Treaty with Britain.
Certainly, there have been excesses in these battles, among them the successful effort to block President Barack Obama from filling the vacancy created by Antonin Scalia’s death. But that doesn’t mean the Senate should not fulfill its constitutional responsibility of providing advice and consent on judicial nominations.
What the Bork fight did inaugurate is a period of thirty years of close scrutiny of a nominee’s approach to critical constitutional controversies and whether that approach is acceptable to the American people. Thus, President Trump’s nominee, federal appeals court judge Neil Gorsuch, should be questioned thoroughly by the committee on his jurisprudence. His opinions should be carefully examined by staff and senators. If senators are concerned about what Gorsuch says or even by his refusal to answer questions, they should vote accordingly.
The worst thing they could do would be to preemptively abandon their constitutional role by declaring a “truce.”
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