The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign

There is a verb in the American language that exists because of one man's confirmation hearing. To "bork" a nominee means to defeat him with a campaign of opposition research, television advertising and organized outrage. The verb took hold in the language almost at once, which tells you how quickly the country absorbed the lesson. It also tells you that the lesson was not a happy one.

Here is the story as it happened, with the dates and the names, followed by the question the story forces: when the Senate gives its advice and consent, what exactly is it consenting to? The answer the Constitution gives is plain. What happened in the autumn of 1987 is something else, and the country has been living with it since.

What the Constitution says

Article II, Section 2, Clause 2 says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." That is the whole of it. There is no list of criteria and no rule about hearings. The Constitution does not say what the Senate may consider.

Hamilton, in Federalist No. 76, explained the purpose of the Senate's role: it would be "an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Notice the reasoning. The check is about unfitness and favoritism. It is a check on the President's choice of persons, which is a different matter from a referendum on the nominee's views.

In practice, through most of American history, the Senate asked about qualifications and character, and the presumption was that a President who won an election was entitled to fill vacancies with people of his own general outlook. The Senate had rejected nominees before, and for political reasons. But the modern model, a public campaign aimed at a nominee's whole philosophy of law, was largely a creation of 1987.

The man

Robert Bork was a Yale Law professor, a former Solicitor General, and, since 1982, a judge on the U.S. Court of Appeals for the D.C. Circuit. He was among the most prominent conservative legal scholars of his generation, and he had the paper trail to prove it. He argued that judges should follow the original understanding of the Constitution and that the Court had too often invented rights. In a 1971 article in the Indiana Law Journal, "Neutral Principles and Some First Amendment Problems," he criticized the reasoning behind Griswold v. Connecticut and other decisions. He had questioned the reasoning of the Court's decisions on a number of fronts, including the Court's 1948 decision on racially restrictive covenants. In 1963 he had written in The New Republic against a public-accommodations provision of the proposed Civil Rights Act on libertarian grounds, a position he later said he had abandoned.

And in October 1973, as Solicitor General, he was the officer who carried out President Nixon's order to fire Special Prosecutor Archibald Cox, after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus had resigned rather than do it. That episode, the "Saturday Night Massacre," would follow him for the rest of his career.

The vacancy

On June 26, 1987, Justice Lewis Powell announced his retirement. Powell was the Court's swing vote. He had written the controlling opinion in Bakke. On many of the hot-button issues of the day, he decided the case. Replacing him with a consistent originalist would move the Court. Everyone understood this at once.

On July 1, 1987, President Reagan nominated Bork. The nomination was welcomed on the right and met on the left with an organized and well-prepared opposition. The Senate was controlled by the Democrats, who had won it in the 1986 elections. The chairman of the Judiciary Committee was Senator Joseph Biden of Delaware.

The Kennedy speech

Within hours of the nomination, Senator Edward Kennedy took the Senate floor and gave one of the most consequential speeches in the history of confirmations. It said: "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 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 for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy."

Notice what that is. It is a campaign speech. It is a prediction of the consequences of a judicial philosophy, presented as fact, and designed to be broadcast. Whatever one thinks of Judge Bork's views, the claims in that paragraph were claims about what would happen if he sat on the Court, and many of them were contested characterizations of a man who believed that legislatures, not courts, should settle most of these questions. A judge who believes that the legislature, and not the court, should decide a question has not thereby said that he wants the legislature to choose the worst outcome. A judge who would not find a constitutional right to birth control in the Constitution is not thereby a judge who thinks the states should ban it. The distinction between "the Constitution does not forbid it" and "I want it" is the essence of judicial restraint, and it did not survive the speech.

The Reagan White House was slow to respond. The nomination team had assumed it was dealing with a hearing. The opposition understood it was dealing with an election.

The campaign

What followed was a new kind of operation. Interest groups on the left organized a coalition, with research on Bork's writings and speeches, a lobbying effort aimed at undecided senators, and a television advertising campaign. People for the American Way produced an ad narrated by the actor Gregory Peck. Conservative groups and the administration organized support as well.

The strategy was to put Bork's own words in front of the public, selectively, and to define him before he could define himself. Bork's academic writing was extensive and provocative. A scholar who writes for decades, testing ideas for their logical consequences, leaves many sentences that can be quoted out of context. Law professors do this all the time. Nobody expects a professor's seminar remark to read well on the evening news.

It is worth pausing on the irony, because it points to the real lesson. The conservative tradition has always insisted that judges are bound by the text of law and not by their preferences. The campaign against Bork succeeded by arguing that his preferences would be imposed on the country. A critic of the campaign might say that the campaign's own logic was the one that conservative judges reject: that the question is not what the law says but what the judge will do with it.

The hearings

The Judiciary Committee hearings began on September 15, 1987, and they were televised. Bork testified for several days, an unusual event in itself. Before this, nominees to the Court had mostly declined to discuss their views, and the senators had not pressed the point so hard. Bork, a professor who believed in answering questions, answered.

He explained his views of the original understanding of the Constitution at length. He said he did not know of a constitutional right to privacy as the Court had articulated it in Griswold, and he explained why he thought that its reasoning was weak. He defended his earlier writings, said he had changed his mind on some, and said he would follow precedent in some areas. To viewers who were used to political candidates speaking in slogans, he appeared as exactly what he was, a professor thinking aloud. A candidate for the Senate who talked this way would have been told by his consultants to stop.

Opponents of the nomination said, with some force, that the Senate had the right to ask a nominee about his philosophy. That argument deserves a fair statement: the Senate's role is to advise as well as consent, the Court's decisions affect the lives of every American, and a body that is asked to approve a lifetime appointment may reasonably want to know how the nominee thinks. Bork's defenders replied that the Senate may examine a nominee's qualifications and character, and that the nominee's judicial philosophy, however controversial, was well within the range of respectable legal thought, and that rejecting him on that ground was to inject politics into the judiciary. Both sides said something true. What happened in 1987 was that the second argument lost, and the first became the rule.

The vote

On October 6, 1987, the Judiciary Committee voted 9 to 5 against recommending Bork. Bork refused to withdraw, and the nomination went to the full Senate, which voted on October 23, 1987. The result was 58 to 42 against confirmation. Some Republicans voted against, and a few Democrats voted for.

Bork resigned from the D.C. Circuit in 1988 and spent the rest of his career writing and teaching. His book The Tempting of America, published in 1990, argued for originalism.

The replacements

The seat did not stay empty for long, and the sequence of events that followed shows what the Bork episode had taught the White House.

Reagan's next nominee, Douglas Ginsburg, withdrew in early November 1987, after reports that he had used marijuana. Then the President nominated Anthony Kennedy, a Ninth Circuit judge from California with a record that the opposition found harder to caricature. The Senate confirmed Kennedy on February 3, 1988, by a vote of 97 to 0.

Kennedy was a conservative, but a less theoretical one. He voted with the conservative justices on many matters and with the liberal justices on others, and for three decades he was the Court's swing vote, the very position that Powell had held. The rejection of Bork, then, did not move the Court as far as his supporters had hoped, or his opponents had feared. It produced a Justice who was seen as safe and who, on the questions that mattered most to the people who had defeated Bork, sided with them a good deal of the time.

What changed

Here is the argument, in numbered form, about what the Bork hearings did to the process.

1. The Senate began to treat judicial philosophy as the main question. Before 1987, the Senate asked mainly about qualifications and integrity. Scalia was confirmed 98 to 0 in 1986, though his views were known to be firmly conservative. After 1987, hearings centered on how a nominee would rule on the great questions.
2. Interest groups became the central actors. The campaign model, with ads, research teams and grassroots mobilization, became standard on both sides. A confirmation became a campaign with a budget.
3. Nominees learned to say less. After Bork, nominees took a lesson from his candor: a nominee who explains his philosophy at length is giving his opponents material. The "Ginsburg rule," the practice of declining to comment on matters that might come before the Court, hardened into habit. Ruth Bader Ginsburg, confirmed in 1993 by 96 to 3, and Stephen Breyer, confirmed in 1994 by 87 to 9, got through with wide margins. The votes of the 1990s were still bipartisan. The partisan pattern that we see today developed over the decades that followed.
4. The stakes rose. The more the Court was seen as a policy-maker, the more each seat mattered, and the more each side was willing to spend. If you treat judges as legislators, you will want to elect them in the Senate.

There is a conservative irony in this that deserves to be stated plainly. Conservatives have argued for decades that judges should not make policy. A confirmation fight over the nominee's views on policy outcomes concedes that they do, and the left's campaign against Bork succeeded because it pressed this view. In the end each side learned to treat the Court as a legislature with life tenure. The way out is not to fight harder on the same terms. It is to return to the Founders' understanding: a judge's task is to follow the law, and the Senate's task is to find out whether the nominee is capable, honest and committed to doing exactly that.

What the Senate should ask

A better practice would ask three things. First, is the nominee qualified by learning, experience and temperament? Second, is the nominee honest and of good character? Third, does the nominee understand the judge's role to be limited by the text of the law, so that the answer to "how will you rule on X?" is "I will read the statute and the Constitution, hear the parties and decide"? Nominees may not and should not promise outcomes in cases that may come before them. A senator who asks for such promises is asking the nominee to prejudge, which is the thing a judge must not do.

Voters can do something about it. The Senate's decisions on confirmation are made by people you elect, and you can read their records and ask them questions. See the representatives page to find who they are.

For related reading, Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means tells the story of the next great fights, and The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended shows how the Senate's own rules changed. For the later hearing that tested the presumption of innocence, see What the 2018 Kavanaugh Hearings Taught About the Presumption of Innocence. The practical side of the Senate's role is in The Blue Slip Explained, a Senate Courtesy That Shapes Every Federal Bench and When the Senate and the President Disagree on Judges, History Shows What Follows. For the judicial philosophy at the center of the Bork fight, read The 1985 Debate Between Edwin Meese and William Brennan That Revived Originalism.

The case in brief

1. The Constitution gives the Senate "Advice and Consent" over the President's choice of judges, and Hamilton in Federalist No. 76 described that role as a check on unfitness and favoritism.
2. After Justice Powell's retirement on June 26, 1987, Reagan nominated Robert Bork on July 1, and Senator Kennedy delivered his floor speech within hours, opening a campaign over Bork's philosophy.
3. The televised hearings opened on September 15, the Judiciary Committee voted against Bork 9 to 5 on October 6, and the Senate rejected him 58 to 42 on October 23.
4. Anthony Kennedy was confirmed 97 to 0 on February 3, 1988, and the lesson that stuck was that candor is dangerous and that a confirmation is a campaign.
5. The remedy is to return to the Founders' test of qualifications, character and fidelity to the law, and to hold the senators who vote accountable.

What you can do: read Article II, Section 2, Clause 2 and Federalist No. 76, then write to your own senators about what questions they ask of judicial nominees.