TeamPurple Political Explainer (9/19)- “Borking” a Supreme Court Pick

It’s not often your name becomes a verb in politics.  But not many people are quite like Robert Bork.

A prodigious writer and conservative intellectual and idealogue, he seems to pop up throughout the seventies and eighties in all of Republicans’ worse moments.   The most infamous of those events was Nixon’s “Saturday Night Massacre,” in which Nixon instructed his then Attorney General Elliott Richardson to fire Archibald Cox, the Watergate Special Prosecutor.  When he refused, Nixon fired him.  This elevated Deputy Attorney General William Ruckelshaus to acting Attorney General and Nixon instructed HIM to fire Cox.  When he refused, Nixon fired Ruckelshaus.  Next in line was….you guessed it, Solicitor General Robert Bork.  Demonstrating his loyalty to his party and his President, he carried out the order.

But that is not the event that created the eponymous monicker.  That would come in 1987.  By then, Bork had been serving as a federal appeals judge for five years, nominated under Ronald Reagan.  Reagan’s previous Supreme Court nominees, Sandra Day O’Connor and Antonin Scalia (along with elevating Judge Rehnquist to Chief Justice) were hugely popular and easy confirmations; O’Connor’s was unanimous and Scalia received 99 votes. Confident they could get through a more controversial pick with relative ease, Reagan nominated Bork to fill the vacancy created by Lewis Powell’s retirement.

Bork’s politics, particularly when it related to social issues, were very ultra-conservative.  His philosophy is typically referred to as “Originalism,” which means the words of the Constitution should be interpreted solely by the words literally in the Constitution, and only in the context used by those that wrote it (so “speech” for instance should be construed as it would in 1791; this gets into very thorny issues particularly when you consider what they meant with the word “privacy,” which doesn’t actually appear in the Constitution).  A book he wrote, published after all of this, was titled “Slouching Toward Gommorah,” which tells you pretty much all you need to know.  Many Republicans even thought that he was too far to the right to confirm.  To make matters worse, Reagan’s popularity was waning; he had breezed to re-election winning 49 states, which made passing Scalia easy, but now he was mired in scandal with the Iran-Contra hearings costing him considerable political capital.  Democrats smelled blood in the water, and were willing to misrepresent and use cheap tactics to keep him off the highest court.

What Democrats on the Senate Judiciary Committee did was spend the hearing exposing and amplifying Bork’s unpopular, very conservative views.  Bork, not particularly social or physically appealing for television (in an age when cable t.v. was in its infancy), and a little rough around the edges, did not make a good witness on his own behalf.  Sweaty in front of the cameras and a little unkempt with a goatee and scowl on his face answering questions, Democrats made Bork look as unappealing as possible, and put pressure on moderate Republicans in swing states to oppose the nomination.  The more Democrats focused on Bork wanting to roll back Civil Rights protections and Bork’s role in the Saturday Night Massacre, the worse he looked.

When it came to the vote, he was able to garner only 42 votes, with six Republicans voting against him.  Bork’s unsuccessful nomination process precipitated a lot of bad blood in Supreme Court nomination fights every time since then.  Before Bork, it was assumed that presidents are deferred to in their choices of cabinet and court appointments, but since then these have turned into major ideological battles.

The subsequent nominee, Douglas Ginsburg, had to be withdrawn soon after his nomination, once it was disclosed he smoked marijuana in college.  The seat eventually went to the moderate justice, Judge Anthony Kennedy, the seat now up for the nominated Brett Kavanaugh.

The first time Bork came up as a verb came from the writer William Safire, who referred to the act of opposing and preventing a Supreme Court pick from getting through as “borking” him.  The term didn’t really become prevalent though until some years later, in 1991, during the nomination fight for (Originalist) Clarence Thomas.  Thomas had been picked for the vacated seat of retiring justice and liberal scion, Thurgood Marshall.  Somewhat mediocre in credentials at that point (he had been fast tracked in the judiciary by Republicans, so he had not yet had a very long record as a judge when he was nominated), once sexual harassment allegations arose, Democrats began talking about how they were going to “bork” him, and Republicans derisively rebutted that by no means should Thomas be “borked.”  The name had now entered the lexicon.

Have a question you would like us to look into or comments?  Please feel free to contact us at Teampurplemn!

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