Robert Heron Bork was a renowned American legal scholar, serving as a Yale Law School professor, U.S. Solicitor General, Acting Attorney General, and a judge of the United States Court of Appeals for the District of Columbia Circuit. Bork was also in his time the foremost advocate of “Originalism” – an interpretation of the Constitution as fixed in the time of enactment. Originalists insist the constitutional meaning can only be changed by the procedures for amendment set out in Article Five . Bork saw this interpretation as the only way jurists could be prevented from creating new law without a popular consensus through legislation. Bork’s Originalism with its delving into origins is sometimes confused with another school on the right, Textualism, which holds to a narrower interpretation that the law’s meaning can not go beyond its stated language. Scalia saw himself as a Textualist.
The current dispute over the naming of Scalia’s replacement on The Court, recalls an earlier dramatic conflict. In 1987 President Ronald Reagan nominated Bork to the Supreme Court. The almost immediate violent opposition from the left to his elevation never questioned his credentials, neither his scholarship nor his practical experience on the bench. But less than an hour after Reagan’s announcement, Ted Kennedy eviscerated him in a nationally televised speech from the floor of the Senate. “Robert Bork’s America,” Kennedy said, “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 could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Although the views as well as the credentials of nominees to the courts had been questioned all through U.S. history, the controversy over Bork’s appointment marked a departure in which his political/judicial leanings would be a test. Then Sen. Joseph Biden presided over a committee hearing of Bork’s nomination, generally considered fair despite the uproar in the liberal media which had left no charge unmade. [It was, ironically, during a period when Biden’s own campaign for the presidency was falling apart.] On October 6, Bork’s nomination was rejected in committee by a 9–5 vote.
Despite the fact that a committee rejection made a negative vote by the full [Democratic controlled] Senate almost certain, Bork continued what had become a losing battle on principal. He maintained that “xxx there should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.”
But Bork’s political support went mum. Bork even complained of Reagan’s lukewarm continued endorsement. And on October 23, 1987, the Senate rejected his confirmation, with 42 Senators voting in favor and 58 against. The vern “Bork” entered the dictionaries. New York City. Feminist Florynce Kennedy later would lead a movement to defeat the nomination of Clarence Thomas, saying, “We’re going to bork him. We’re going to kill him politically. … This little creep, where did he come from?” But Thomas, perhaps in no small part because of the color of his skin, was not Borked, but confirmed after a contentious confirmation hearing.
It now remains to be seen whether “turn-about is fair play”, whether Obama’s nomination of Merrick Garland, again a justice with the proper credentials but unacceptable for his political beliefs to the conservative majority in the Senate, will make the grade. Or will he be Borked.