Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
— Sen. Ted Kennedy, July 1, 1987, in a speech opposing then-President Ronald Reagan’s nomination of the ultra-conservative Robert Bork to the U.S. Supreme Court.
It took more than three decades, but it looks like Robert Bork’s America is coming to our fast-fading banana republic.
And what an irony! The Supreme Court seat for which President Trump, in the weeks ahead, is expected to name the type of staunch anti-abortion and pro-police-state jurist that Reagan was denied by a Democratic-led Senate in 1987 is the exact same seat sought by Bork — and for which Reagan was ultimately forced to name a somewhat more moderate jurist, Anthony Kennedy, the following year.
Anthony Kennedy ended 30 years that seemed to fly by — a generation in which he helped cement the conservative pro-business and anti-labor drift of the High Court even as his vote cemented liberal social gains on issues like gay marriage or reproductive rights — with the somewhat surprising news that he’s retiring this summer at age 81.
It’s a watershed moment for a nation now engaged in a great ideological civil war — a time when a president who has more Americans wanting his impeachment than approving of his job performance is about to place his second stamp on the Supreme Court in just a year and a half, with a chance to replace a swing justice with a nominee likely to oppose abortion rights and seal the judiciary’s embrace of corporate power deep into the 21st Century. It didn’t seem possible, but America’s most fraught political season of the last half-century is about to get more intense.
One way to figure out where this is going is to see it as the climatic last-battle chapter in an epic that started on July 1, 1987 — the day that Reagan announced he planned to replace retiring Justice Lewis Powell, a conservative-leaning swing justice (not, ironically, unlike Anthony Kennedy) with appellate court judge Robert Bork, who was something of a public figure for his willingness to do Richard Nixon’s bidding and fire Watergate prosecutor Archibald Cox in the so-called Saturday Night Massacre of 1973.
The political conflagration over Bork was one that few saw coming. Traditionally, any opposition to Supreme Court nominations turned on qualification or ethics, not the person’s ideology. But neither of Reagan’s two prior additions to the High Court — the conservative firebrand Antonin Scalia or the surprisingly centrist Sandra Day O’Connor — were viewed as an extremist in the way that Kennedy and his Democratic colleagues portrayed Bork.
Bork would later complain that Ted Kennedy’s version of “Robert Bork’s America” was untrue in some spots and unfair in others; indeed, he had reversed some of the more extreme views of his younger days, when he’d opposed the 1964 Civil Rights Act. But progressive opponents of Bork like the American Civil Liberties Union, or ACLU, and People for the American Way, which hired Hollywood icon Gregory Peck to narrate anti-Bork TV ads, mobilized in a manner that had never been seen before.
In the end, it was two “Area Men” — then.-Delaware Sen. Joe Biden, a presidential hopeful who chaired the Senate Judiciary Committee, and Pennsylvania Sen. Arlen Specter, one of six moderate Republicans (yes, that used to be a thing) who voted against the nominee of their own party’s president — who played a critical role in defeating Bork by a 58-42 vote on Oct. 23, 1987. History then repeated as farce — Reagan’s next pick, Douglas Ginsburg, failed after revelations over, believe it or not, his past pot smoking — before the Anthony Kennedy selection that was approved unanimously (!) in February 1988.
The episode showed in many ways how the battles of the 1960s and early 1970s morphed into America’s perpetual civil wars. Democrats like Kennedy and Biden were terrified that a right-wing court would roll back the gains of that era — civil and voting rights for non-whites, reproductive rights for women, and curbs on the abuses of law enforcement.
But the Republicans did what they did so well (and what the Democrats do so poorly) — they played the long game. The party — with help from a new infrastructure of right-wing justice-oriented groups like the Federalist Society — built up a deep bench of qualified but ideologically very conservative jurists for future GOP presidents to summon. And a growing web of right-wing media outfits like talk radio and later the Fox News Channel — ironically, a framework proposed in a 1971 memo by Lewis Powell, the future justice whose resignation triggered all of this — made sure that conservatives weren’t caught off guard as they had been by Ted Kennedy and Gregory Peck.
In 1987, then-Pennsylvania GOP Sen. Arlen Specter grilled Robert Bork at his confirmation hearing, then voted against him. pic.twitter.com/7NJDHv5JjF
— Will Bunch (@Will_Bunch) June 28, 2018
The political right also adopted “Borked!” as a verb — a rallying cry for their ideological brothers and sisters they thought treated so unfairly — but the reality is that the Bork battle started an escalating tit-for-tat by both parties. Both Republicans and Democrats used the filibuster and other tactics to slow or occasionally reject the other party’s lower-court picks; the Democrats got so fed up during Barack Obama’s presidency that they killed the filibuster for non-Supreme Court judicial and Cabinet nominees in 2013.
When the GOP regained control of the Senate in January 2015, it fought back with a ruthlessness so alien to the perpetually timid Dems. Republicans refused to even give a hearing to Obama’s Supreme Court nominee Merrick Garland, then killed the Supreme Court filibuster to ram through Trump’s first pick Neil Gorsuch last year.
So who’s Borking who, at this point?
In theory, there should be valuable lessons for the Democrats in how they prevented Bork’s elevation to the High Court. They will certainly try to convince the two Republicans who support abortion rights — Susan Collins of Maine and Lisa Murkowski of Alaska — or the mercurial sometimes Trump critic Jeff Flake of Arizona to buck their party, just as Specter and five other Republicans were once persuaded that Bork was too extreme. But that kind of bipartisanship seems lost to the era of electric typewriters and rabbit-ear TV antennas.
“I assume the Republicans will get whatever they want,” said Leonard Gross, a Southern Illinois University law professor who co-authored a 1998 book on Bork and the politicization of the Supreme Court nomination process. He noted that the Bork fight created a world where both parties and ideological groups raise millions for what amounts to a political extravaganza, but it also led to the death of any roadmap for a minority party like today’s Democrats.
>> READ MORE: Justice Kennedy’s retirement jolts midterm elections
Meanwhile, it’s hard to figure out what was so unfair about Ted Kennedy’s speech when so much of Robert Bork’s America would arrive anyway. Installing the kinder, gentler Anthony Kennedy didn’t prevent the court, with the addition of Bork-lite justices Clarence Thomas and Sam Alito, from gutting the 1965 Voting Right Act, corrupting our politics with a flood of billionaire money in Citizens United, and strengthening big corporations and the growing homeland-security state at the expense of workers and everyday citizens. And now an authoritarian president named Trump is here to close the loop that started back he was just a vainglorious Manhattan developer.
One person who didn’t make it to see Robert Bork’s America is Robert Bork, who died from heart disease at the age of 85, in 2012. Had Bork been confirmed and had he stayed on the Supreme Court for the rest of his life, his replacement would have been picked by Obama and confirmed by a Democratic Senate — presumably a progressive in the mode of Sonya Sotomayor or Elena Kagan, and the polar opposite of whoever Trump will select this summer. For America’s silenced majority watching all this in horror from the sidelines, the irony is too painful.