The Surprising Legacy of the Bork Hearings

Chris Eisgruber

This month marks the 20th anniversary of the Senate vote rejecting the Bork nomination (for anybody who wants to celebrate—or mourn—the exact date is October 23). In a series of three postings, I will try to take stock of what has happened to the confirmation process since the Bork hearings, drawing on themes from my recently published book, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press, 2007). (Many thanks to JB for allowing me to appear here as a guest blogger!).

As anybody who watched them will remember, the Bork hearings were unforgettable political theater. They mixed hyperbole and scandal with sophisticated constitutional argument. Bork, unlike any nominee before or after him, spoke frankly about his controversial jurisprudential views. At the end of the day, the vote was not especially close: the nomination failed, 58-42.

People divide about whether the hearings were a sordid debacle or a triumph of constitutional politics. I’m on the triumph side. The Senate rejected Bork for exactly the reasons that Ronald Reagan had nominated him. In his superb book Pursuit of Justices, the historian David Yalof reports that the Scalia and Bork nominations were the product of an exhaustive Justice Department process designed to identify the most ideologically conservative judges sitting in the federal appellate courts.

Reagan might have defended Bork on the ground that he was an exceedingly able, and exceedingly pure, conservative—but he didn’t. Instead, Reagan described Bork as an “even handed and open-minded” successor to the moderate Lewis Powell. The Senate didn’t buy it. The senators rejected Bork because he was ideologically rigid rather than open-minded—which was, after all, exactly why the president had wanted him on the bench.

The Bork hearings could have focused public attention to the aggressively ideological process that the Reagan administration used to select Bork. But nomination processes occur behind closed doors. The confirmation hearings, by contrast, were widely televised. Political battles over Supreme Court nominees were nothing new, but never before had they attracted Nielsen ratings like these.

Pundits and the public worried that this all looked “too political” to be healthy for a judicial system. The Bork hearings generated a spate of articles and books lamenting what Stephen Carter eventually called “The Confirmation Mess.” These complaints grew stronger after the genuinely tawdry hearings on Clarence Thomas in 1991.

The complaints had an impact. So too did careful coaching of nominees by White House advisers who taught nominees how to avoid answering questions about their jurisprudence. The last four sets of confirmation hearings—for Ruth Bader Ginsburg, Stephen Breyer, John Roberts, and Sam Alito—have been civil, polite affairs. For people convinced that the confirmation process had become “too political,” these formal rituals must come as a relief. But for those worried about congressional power to check presidential extremism, they are a worrisome development.

Meanwhile, the "nomination mess" (as political scientist Michael Comiskey termed it) continued unabated. As Jan Crawford Greenberg documents in Supreme Conflict, the Republican Party learned important lessons from its loss in the Bork hearings. George W. Bush refined, rather than abandoned, the search for ideologically pure conservatives. His staff supplemented the ideological criteria with another, practical one: they looked for judges who were not only ideologically pure but confirmable.

The result, manifest in the hearings on John Roberts and Sam Alito, was a mismatch between the President, who was able to run an aggressively ideological nomination process, and Democrats in the Senate, who were not only in the minority but were hamstrung by awkward expectations that the confirmation process should somehow be ‘apolitical.’ John Roberts, who last term established himself as a radically conservative Chief Justice, was able to skate through the hearings by describing himself as a neutral umpire. That myth will be the subject of my next post.
Posted 6:41 PM by Chris Eisgruber [link]