Kagan, Stevens and Brennan on Bork

Elena Kagan may have thought (in 1997) that the Bork confirmation hearings were “the best thing that happened, ever happened, to constitutional democracy,” and welcomed the defeat of his confirmation.  The Justice she would replace, Justice John Paul Stevens, appears to have had a different view.  As legal journalist Seth Stern notes, after Bork was nominated, Justice Stevens said he was “very well-qualified” and predicted that Bork would be “a very welcome addition to the court.”  Stern, who is co-authoring a book on Justice William Brennan, reports further:

as the criticism intensified, one of Stevens’ fellow justices, William J. Brennan Jr., privately began to harbor his own deep misgivings about the way Bork was being treated.Brennan, then 81, had emerged as the court’s most influential liberal in the 31 years since President Eisenhower appointed him in 1956. He knew better than anyone how much was at stake. Bork would almost certainly have reinforced the bloc of conservative justices intent on rolling back the rights revolution Brennan helped engineer under Chief Justice Earl Warren.

Nevertheless, Brennan came to believe “all the hype, the advertisements, and the television shots” against Bork had gone too far and questioned whether senators “should be parties to something like that.”

“I think they rather demean the process and give it the appearance of an ordinary ward fight in Chicago,” Brennan confided to his biographer, Stephen Wermiel, in a private conversation in his chambers on October 28, 1987, the details of which has not been revealed until now. Five days earlier, the Senate had rejected Bork by a 58 to 42 margin.

Like Stevens, Brennan thought all the dire warnings about Bork had been overblown. “I’d have been not at all unhappy to have him as a colleague,” Brennan said at the time. “I’d just have one more with whom I’d probably not always agree.”

Brennan admitted none of this publicly and thought Stevens had made a mistake by doing so: “God, the last thing in the world any of us should do is be willing to comment on any appointment, if someone’s going to be a new colleague.”

Back in the present, Robert Bork has adopted a different view, announcing this week that he opposes Kagan’s confirmation to the Court.

UPDATE: The opening line of this post has been edited to clarify that Kagan’s 1997 quote only referred to the Bork confirmation hearings as the “best thing” to happen to constitutional democracy.

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