Bork Nomination

• Author: Fredrick Schauer
• Pages: 209-211

Page 209

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

Page 210

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...