Bork Nomination

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BORK NOMINATION

On June 26,1987, Justice lewis f. powell retired from the Supreme Court for reasons of health and age. On July 1, 1987, President ronald reagan nominated Judge Robert H. Bork of the United States Court of Appeals for the District of Columbia Circuit, former Solicitor General of the United States and Professor of Law at the Yale Law School, to replace Justice Powell. The nomination was rejected by the Senate on October 23, 1987 by a vote of forty-two for and fifty-eight against. Although any Senate rejection of a presidential nominee for the Supreme Court is noteworthy, the proceedings surrounding the Bork nomination were uniquely important in providing what turned out to be virtually a public referendum on the deepest questions of constitutional theory. The outcome of this referendum is likely to have long-term effects not only on future nominations, but also on the practice of constitutional interpretation.

As a prominent academic, public official, and judge with a firmly established reputation as a political and judicial conservative, Judge Bork had been thought of as a potential nominee for some years. When he was nominated in 1987, opposition crystallized immediately, led by groups such as Common Cause, People for the American Way, Planned Parenthood, and the american civil liberties union, the last of whose opposition to the nomination represented a departure from longstanding practice. This opposition, reflected first in the divided and only qualified endorsement of the American Bar Association Standing Committee on the Federal Judiciary, was manifested in newspaper and television advertisements, extensive lobbying efforts, organization of letter-writing campaigns directed primarily at members of the senate judiciary committee, and in elaborately orchestrated testimony before this Committee (chaired by Senator Joseph Biden of Delaware), testimony featuring a significant number of prominent law school professors.

The public debate and the televised proceedings before the Judiciary Committee focused on five issues, four of which turned out to be much less important than the fifth. First was Judge Bork's role as solicitor general during the administration of President richard m. nixon and, in particular, his role as the one who as acting attorney general finally implemented the President's order to remove Archibald Cox as special prosecutor after both the attorney general (Elliott Richardson) and the deputy attorney general (William Ruckleshaus) had refused. Testimony at the hearings, however, including testimony from Richardson supporting the nomination, established the political and moral plausibility, if not the ultimate correctness, of Bork's action, and quickly removed this issue from center stage.

Second, Judge Bork's writings on antitrust law generated some objections based on the possibility that he would be insufficiently supportive of vigorous enforcement of the antitrust laws. Little came of this, however, in part because of the comparative infrequency of antitrust cases in the Supreme Court and, in larger part, because it became clear that Judge Bork's writings in this area, although controversial, were widely respected and well within the mainstream of academic and professional debate.

Third was Bork's view about freedom of speech and freedom of the press under the first amendment, in particular the position articulated in a 1971 article, "Neutral Principles and Some First Amendment Problems," in the Indiana Law Journal. In this article, Bork argued that only explicitly political speech and not art or literature or anything else not directly relating to political argument was protected by the First Amendment. Although this view represented a substantial departure from both the existing case law and the bulk of academic commentary, Bork's testimony before the Judiciary Committee, conjoined with opinions he had written while on the Court of Appeals, like Ollman v. Evans (1984), established that he no longer held this view, at least to such an extent, and the issue turned out to be less important than was first expected.

Fourth, Judge Bork had objected both to the Supreme Court's opinion in shelley v. kraemer (1948) striking down judicial enforcement of racially restrictive covenants as unconstitutional state action and to the public-accommodation provisions of the civil rights act of 1964, calling the latter at the time an act of "unsurpassed ugliness." At the hearings, however, Judge Bork made it clear that he was an unqualified supporter of brown v. board of education (1954) and many other Supreme Court decisions outlawing racial segregation and that he no longer held the views he had set forth in 1963. Moreover, his record on the Court of Appeals and as solicitor general, although hardly aggressive on questions of discrimination on the basis of race and gender, confirmed that Judge Bork no longer held views as hostile to civil rights as might have been inferred solely from some of his earlier writings. This issue never disappeared from the hearings and represented a significant reason for the opposition of numerous civil rights organizations, but in the final analysis, like Bork's views on the First Amendment, it played a somewhat smaller role than had earlier been anticipated.

Fifth and most important were Judge Bork's views about constitutional interpretation and constitutional theory, particularly as they related to questions about the use of original intent and about the existence of unenumerated rights in general and the right of privacy in particular. In this context, Judge Bork's views were more consistent over time, as shown in cases like Dronenburg v. Zech (1984), representing a view pursuant to which constitutional interpretation was legitimate according to Bork only if restricted to provisions explicitly set forth in the constitutional text, with textual indeterminacies to be resolved by exclusive reference to the original intent of the drafters.

The import of this position was that Judge Bork viewed these Supreme Court decisions finding unenumerated rights in the Constitution as illegitimate judicial usurpation of legislative or majoritarian authority. The discussion of this issue focused largely on the right of privacy, whose recognition Judge Bork viewed as beyond the proper province of the Supreme Court, and on the Supreme Court decisions in roe v. wade (1973) on abortion and griswold v. connecticut (1965) on contraception, both of which were based on principles of enforcement of unenumerated rights or Fourteenth Amendment substantive due process that Judge Bork found impermissible.

Although Judge Bork's views in this regard were often characterized during the hearings as outside of the academic or professional mainstream, his skepticism about substantive due process, unenumerated rights, and the right to privacy reflected a commonly articulated academic position throughout the 1970s and early 1980s and a position often articulated by academics whose personal political views would have been sympathetic to the enforcement of privacy and abortion rights as a matter of legislative or political policy. In this regard, the charge that Bork's views were widely divergent from the so-called mainstream was simply factually inaccurate.

That Bork's views did not represent some alledged radical right-wing view (see Ronald Dworkin, "The Bork Nomination," The New York Review of Books, August 13, 1987), however, does not entail the conclusion that these views could not permissibly be taken into account by the President in nominating him or by the Senate in deciding whether to give their advice and consent to the nomination. From this perspective one of the lessons of the entire process was that a prospective Justice's views about questions of constitutional interpretation and substantive constitutional law became more permissible part of senatorial inquiry than they had previously been. Although the rhetoric at the time inaccurately stressed the "out of the mainstream" character of these views, it does not follow that the senators are obliged to give their advice and consent to every nominee whose views are within the mainstream. The rejection of the Bork nomination represents a change in practice (in part confirmed in subsequent nominations) toward a process in which senators feel more comfortable about critically inquiring into substansive questons about consitiutional law than they had in the past.

The rejection of the nomination can therefore also be taken as a virtual public referendum on the right to privacy and perhaps also on the authority of the Supreme Court to enforce unenumerated rights. Although opposition to the abortion decisions was taken to be less "extreme," Bork's opposition to Griswold was the focus of the controversy. In their testimony, Bork and his supporters stressed the distinction between the desirability of a right and its existence or historical embodiment in the Constitution, arguing that the desirability of a right, including the right to privacy, was not a sufficient condition for its judicial recognition under a view that recognized majoritarian supremacy and the limited role of judicial review. And in opposition, Bork's adversaries before the Judiciary Committee focused on the intrinsic desirability of a right to privacy, on the social obsolescence of the contraception prohibition struck down in Griswold, on a Lockean tradition of natural rights, on the ninth amendment, and on a relatively long history of Supreme Court use of substantive due process to encompass unenumerated rights and to invalidate state and federal legislation inconsistent with them.

The final committee vote of five to nine against the nomination (October 6, 1987), as well as the Senate vote consistent with this negative recommendation (both of which included negative votes by Republicans), may well represent a public and legislative endorsement of the authority of the Supreme Court both to interpret the Constitution by use of sources not limited to the original intentions of the Framers and to identify and to enforce rights not explicitly enumerated in the text of the document. Although other factors played a role in the defeat of the nomination, including Bork's views on civil rights and freedom of speech and a personal style more academic than publicly engaging, the centrality of the privacy-unenumerated rights issue has been confirmed by subsequent nominations. During the proceedings leading to the confirmation of Justice david h. souter, he consistently avoided expressing his views about Roe v. Wade, but made clear that he believed both that it was permissible for the Court to identify and enforce unenumerated rights and that the right to privacy was one of them. Insofar as these statements manifest a shift such that it is no longer plausible for a Supreme Court Justice (or nominee) to deny the existence of unenumerated rights or the right to privacy, the rejection of the Bork nomination must be considered not only as the rejection of a particular nominee, but also and more significantly, as the punctuation mark on a longer term constitutional transformation.

Fredrick Schauer
(1992)

(see also: Conservatism.)