His defeat taught interest groups to demonize judicial nominees based solely on their worldview.

September 1, 2018
by Mark Pulliam Mr. Pulliam, a contributing editor at the Law and Liberty website, blogs at This article is adapted from the Summer issue of City Journal.
  Judge Robert Bork is sworn in for his confirmation hearing on Capitol Hill, Sept. 15, 1987.PHOTO: JOHN DURICKA/ASSOCIATED PRESS

When Justice Anthony Kennedy announced his retirement in June, liberal interest groups were apoplectic. Many Senate Democrats, including Minority Leader Chuck Schumer, vowed to oppose any nominee and kept their promise when President Trump nominated Judge Brett Kavanaugh. Liberal groups rail against him for transparently political reasons: They don’t like the way they think he will vote, as if he were a legislator.

The confirmation process for Supreme Court nominees hasn’t always been so contentious and partisan. The Senate used to evaluate nominees based on qualifications and temperament. As recently as 1986, the upper chamber unanimously confirmed Justice Antonin Scalia. But things changed the following year, when a Democratic Senate denied confirmation to perhaps the most qualified candidate ever nominated to the court: Robert Bork.

Despite Bork’s unsurpassed credentials, liberals opposed him solely because of his conservative judicial philosophy. They succeeded and in the process coined a new verb, “to bork.” The confirmation process for Supreme Court nominees has been corrupted ever since.

The Bork saga has begun to recede from public consciousness, so it’s worth recalling those events and the man at the center of them. Bork had an illustrious legal career. After graduating from the University of Chicago, where he obtained both his undergraduate and law degrees, he practiced law with the prestigious firm Kirkland & Ellis, where he became a partner. He joined the faculty of Yale Law School—generally considered the nation’s best—in 1962, specializing in antitrust and constitutional law.

Bork left his tenured position at Yale to serve in the Nixon and Ford administrations. From 1973-77, he served as solicitor general, the third-ranking official in the Justice Department, representing the federal government before the Supreme Court. Chief Justice Warren Burger rated Bork the most effective advocate to appear before the court during his tenure.


Following a brief return to Yale, in 1982 Ronald Reagan appointed Bork to the U.S. Court of Appeals for the District of Columbia Circuit. The American Bar Association gave him its highest rating, “exceptionally well qualified,” and in February 1982 the Senate unanimously confirmed his nomination.

Conservatives were delighted when Reagan announced on July 1, 1987, that he was nominating the 60-year-old Bork to replace the retiring Justice Lewis Powell. Reagan described Bork as “a premier constitutional authority . . . the most prominent and intellectually powerful advocate of judicial restraint.”

Bork had earned this reputation by swimming against the ideological current as a scholar during the 1960s and 1970s—the heyday of the “living Constitution,” when most of the legal academy was busy justifying judicial activism. Bork believed that judges should enforce the law, including the Constitution, as written. This approach has variously been referred to as strict construction, original intent, interpretivism, judicial restraint, textualism and originalism. Bork wasn’t the only conservative in legal academia, but he was the most influential advocate for originalism.

His forceful opposition to activist constitutional decision-making made the idea of a Justice Bork anathema to the left. Less than an hour after Reagan announced the nomination, Sen. Ted Kennedy made one of the most disgraceful speeches ever delivered on the Senate floor. He falsely accused Bork of standing for “back-alley abortions,” segregated lunch counters, “rogue police” conducting midnight raids, censorship and other horrors. “Not one line of that tirade was true,” Bork later reflected.

The judge assumed no one would believe Kennedy’s hysterical charges. He was naive. Kennedy’s extreme rhetoric resonated with the left’s grass roots, prompting Judiciary Committee Joe Biden—who had previously said if Reagan nominated Bork, “I’d have to vote for him”—to announce his opposition. A coalition of 300 organizations, led by Norman Lear’s People for the American Way, spent more than $10 million in anti-Bork advertisements, some narrated by actor Gregory Peck, and intense lobbying efforts directed at uncommitted senators.

The televised confirmation hearings in September 1987 lasted an unprecedented 12 days. Bork was grilled and testified in detail about his views for five full days. The Judiciary Committee’s rejection of Bork by a 9-5 vote spelled political doom, but he refused to withdraw. After several days of bitter argument on the Senate floor, Bork’s nomination was defeated, 58-42.

The borking of Robert Bork taught special-interest groups that they could demonize judicial nominees based solely on their worldview. Worse, character assassination proved an effective tactic, nearly sinking Justice Clarence Thomas’s appointment four years later.

Soon afterward, Bork resigned his life-tenured seat on the D.C. Circuit and embarked on a campaign to educate the public about “the proper function of judges in our constitutional democracy.” Thanks in part to his persistence, originalism has triumphed, as demonstrated by the canonization of fellow originalist Antonin Scalia and the appointment of Justice Neil Gorsuch, Judge Kavanaugh and other originalists to the federal bench. Bork’s potential contribution to constitutional jurisprudence as a justice on the court is, sadly, lost to history. What remains as Bork’s undeserved legacy is a muddled court and a politicized judicial-confirmation process.

In February 1988, the Senate confirmed Anthony Kennedy for the seat left vacant by Powell’s retirement—the last unanimous confirmation vote for a Supreme Court nominee. By confirming Judge Kavanaugh, the Senate can go some way toward atoning for its shameful treatment of Robert Bork 31 years ago.

Mr. Pulliam, a contributing editor at the Law and Liberty website, blogs at This article is adapted from the Summer issue of City Journal.




Leave a Reply

Search All Posts