Last week, historian David Greenberg surveyed political fights over Supreme Court confirmations prior to the Senate’s rejection of Robert Bork in 1987 in an NYT op-ed. “Although Mr. Bork’s confirmation certainly represented a major battle of the Reagan years, the campaign to defeat him was neither unprecedented nor illegitimate,” he writes. According to Greenberg: “The Democratic campaign against Bork in 1987, then, wasn’t anything new; it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent.”
Although Greenberg is certainly correct that Robert Bork was hardly the first Supreme Court nominee rejected by the Senate, or the first opposed on ideological or political grounds, his account leaves out some important context. While noting that the Senate had been more deferential to Supreme Court nominees through much of the 20th century, Greenberg fails to account for the character of the campaign against Bork — the outlandish charges, distortion of his academic work, and character assassination. Insofar as these tactics replicated the scurrilous campaign by some Southern Senators to block confirmation of Thurgood Marshall, they were indeed “precedeented,” but I would not call them legitimate.
As Walter Olson reminds us, Bork’s opponents went so far as to suggest Bork was suspiciously like some of his academic critics, in that he was insufficiently devout and was himself a former academic with an allegedly “strange lifestyle.” Some Democratic Senators actually cited Bork’s failure to discuss his relationship with God and lack of religious commitment to justify their votes against him.
Greenberg also omits the fact that the anti-bork campaign was the culmination of a concerted campaign against Reagan’s judicial nominations that actually began several years earlier and initially focused on lower court nominees. As I’ve noted before (see also here and here), Senate Democrats decided in 1985 to begin targeting appellate nominees. As the Washington Post reported on November 12, 1985, Senate Democrats were reluctant to premise their opposition on ideology so they “trained their fire on other issues — credibility, temperament, discrepancies in testimony — to wound the most conservative nominees” to block those they could. And once the Democrats took back control of the Senate in 1986, their efforts bore fruit, and multiple appellate nominees were defeated before the Bork nomination took center stage. These efforts, as much as the Bork fight, triggered the ever-escalating obstruction that has plagued lower court judicial nominations ever since.