October 23, 1987: The U.S. Senate rejects the nomination of federal Judge Robert H. Bork to the Supreme Court of the United States, by a vote of 58-42, the sharpest rejection of a nominee in the High Court's history. It is a stinging rebuke for the President who nominated him, Ronald Reagan.
Reagan had been elected President in 1980, and re-elected in 1984, in a landslide each time, which he considered mandates to reshape the federal judiciary for conservative means: Restricting civil rights, loosening regulations on business, and pandering to an evangelical brand of Christianity that Jesus would never have recognized as his own.
During his time in the White House, 4 seats opened up on the Court. In 1981, Justice Potter Stewart retired, and Reagan nominated Sandra Day O'Connor for his seat, the 1st woman ever nominated to the Court. Although she was very conservative, she had no problem getting confirmed, receiving a 99-0 vote, and a written apology from the one Senator who was unable to be present for the vote, Max Baucus, Democrat of Montana.
In 1986, Chief Justice Warren Burger retired, and Reagan decided on a 2-at-once deal: He promoted Justice William Rehnquist to Chief Justice, and appointed Antonin Scalia to Rehnquist's former seat. Both men were more conservative than O'Connor, let alone Burger. But while Rehnquist's vote was closer, 65-33, Scalia was confirmed, 98-0.
1987, Lewis Powell retired. This was Reagan's chance to make nearly half of the Court his appointees. His choice was Bork. Born in 1927 in Pittsburgh, and a Marine veteran of the Korean War, he left private practice in 1962 to join the faculty of Yale Law School. Among his students were Bill Clinton, Hillary Rodham (the couple met in the Yale Law Library), Clinton's Secretary of Labor Robert Reich, future California Governor Jerry Brown, future U.S. Ambassador to the United Nations John Bolton, and Anita Hill, whose testimony would feature in another Supreme Court confirmation hearing.
Bork left Yale in March 1973, when President Richard Nixon appointed him to be the Solicitor General of the United States. The Solicitor General is the Number 3 official in the U.S. Department of Justice, with the job of arguing the federal government's side of cases before the Supreme Court, when the federal government is sued. The role of Solicitor General is often seen as a stepping-stone for the Supreme Court.
On October 20, 1973, with Watergate Special Prosecutor Archibald Cox closing in, President Richard Nixon decided that, in order to survive in office, he had to fire Cox. So he instructed Attorney General Elliot Richardson, the man who had hired Cox and had the power to fire him, to fire him. Richardson refused, because he thought it would spark a Constitutional crisis. Nixon said to do it, or you're fired. Richardson did the honorable thing, and resigned his post.
So Nixon went to the next man in line, Richardson's Deputy Attorney General, William Ruckelshaus. He also refused to fire Cox, and Nixon fired him. So with the top 2 men in the U.S. Department of Justice now gone, Nixon went to the Number 3 man, Bork, now the Acting Attorney General, and he fired Cox, because he valued Nixon more than he valued the Constitution. The series of events became known as "The Saturday Night Massacre."
Bork stayed on as Solicitor General for the rest of the Presidential term, after Nixon's 1974 resignation and Gerald Ford's defeat to Jimmy Carter. He returned to Yale Law, and stayed until 1982, when Reagan appointed him to the Court of Appeals for the District of Columbia Circuit -- another occasional stepping stone to the Supreme Court.
Reagan did appoint him to the Supreme Court, on July 1 -- right in the middle of the Iran-Contra hearings, when he needed help shoring up his conservative base. Bork's selection pleased them. But it horrified liberals, and they were determined to make it horrify moderates, too.
Republicans were worried that Democrats would bring up Bork's role in the Saturday Night Massacre, thus questioning his commitment to the Constitution. Which they did. But Republicans were hoping Bork's status as one of America's leading "Constitutional scholars" would overcome that.
Maybe it would have, but it ended up not being the key issue. Senator Ted Kennedy of Massachusetts, a member and former Chairman of the Senate Judiciary Committee, fired the Democrats' opening shot:
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...
The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his Presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No Justice would be better than this injustice.
Bork had clearly stated that the Constitution did not grant a "general right to privacy," which suggested that not only would he vote to overturn Roe v. Wade, the Supreme Court's decision accepting a woman's right to an abortion, but also Griswold v. Connecticut, the Court's decision accepting a woman's right to birth control. Suddenly, for millions of women of child-bearing years, Bork's nomination was downright scary.
A political cartoon showed the Chairman of the Judiciary Committee, Joe Biden of Delaware, with a chunkier-than-in-reality Kennedy sitting next to him, telling Bork, "Your views are from another century!" And Bork said, "Precisely." In his hand was a piece of paper that read, "U.S. CONSTITUTION, 1787." The cartoonist blew it with the date: There was no Bill of Rights, added 1789.
The Judiciary Committee voted to not send a recommendation for confirmation to the full Senate. On October 23, the Senate voted 58 to 42 against Bork's confirmation. The 42 votes for included 2 Democrats: Ernest "Fritz" Hollings of South Carolina and David Boren of Oklahoma. The 58 votes against included 6 Republicans: Robert Stafford of Vermont, John Chafee of Rhode Island, Lowell Weicker of Connecticut, Arlen Specter of Pennsylvania, John Warner of Virginia and Bob Packwood of Oregon.
Never had a Justice-Appointive lost by such a numerical margin. Not since 1845, when George Washington Woodward was rejected 29-20, had one lost by such a proportional margin.
On October 29, Reagan appointed Douglas H. Ginsburg, another D.C. Court of Appeals Judge, who had been on that bench for only a year, and whose resumé was otherwise rather thin. It got out that he had used marijuana when he was younger, including while as a professor at Harvard Law School, which was still considered a big deal in 1987. He could have weathered that storm, but a conflict of interest from his earlier job as Assistant Attorney General for the Antitrust Division was exposed, and he withdrew his name from consideration on November 7.
On November 11, Reagan's 3rd time turned out to be the charm: He nominated Anthony M. Kennedy (no relation to Ted and his family), from the U.S. Court of Appeals for the Ninth Circuit, which includes the West Coast and some Rocky Mountain States. On February 3, 1988, Kennedy was confirmed by a vote of 97-0.
Judge Bork resigned from the federal bench shortly thereafter, and worked at right-wing think tanks, the American Enterprise Institute and the Hudson Institute. He wrote several books, most of them doom-and-gloom tomes about how America's morality was going down the tubes, with titles like The Tempting of America, Slouching Towards Gomorrah: Modern Liberalism and American Decline, and A Country I Do Not Recognize: The Legal Assault on American Values. He died in 2012, at the age of 85.
Judge Ginsburg remained on the federal bench until 2011, and, as of October 23, 2022, teaches at George Mason University, in the Virginia suburbs of Washington, at a law school named for Justice Scalia. Justice Kennedy retired from the Supreme Court in 2018, having been a "swing vote," and was replaced when Donald Trump appointed Brett Kavanaugh, an alcoholic rapist who committed perjury during his confirmation hearing.
In 2000, the Supreme Court, with Kennedy (holding the seat intended for Bork) voting with 4 other Justices appointed by Republican Presidents, voted in Bush v. Gore to stop the recount of the Florida Presidential votes, installing George W. Bush as President even though he lost the popular vote.
In 2010, the Supreme Court, with Kennedy (holding the seat intended for Bork) voting with 4 other Justices appointed by Republican Presidents, voted in Citizens United v. Federal Election Commission to strike down campaign finance laws.
In 2022, the Supreme Court, with Justice Clarence Thomas appointed by George H.W. Bush; Chief Justice John Roberts and Samuel Alito appointed by George W. Bush; and Kavanaugh (holding the seat intended for Bork), Neil Gorsuch and Amy Comey Barrett appointed by Trump, giving it a 6-3 archconservative majority, voted in Dobbs v. Jackson to overturn Roe v. Wade. Thomas has already said that the Court needs to overturn Griswold v. Connecticut and the case that struck down laws against same-sex marriage, Obergefell v. Hodges.
In the end, the 1987 rejection of Robert Bork did not prevent what has already happened, it merely delayed it.
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October 23, 1987 was a Friday. It was a travel day in the World Series, with the St. Louis Cardinals leading the Minnesota Twins 3 games to 2. But the Twins won the last 2 games to win the Series.
Football was in midweek. The NBA season started 14 days later. There were 6 games played in the NHL:
* In an "Original Six" matchup, the New York Rangers beat the Chicago Blackhawks, 7-3 at Madison Square Garden. Ulf Dahlén scored a hat trick for the Rangers.
* The New Jersey Devils beat the New York Islanders, 5-3 at the Brendan Byrne Arena at the Meadowlands. Claude Loiselle scored 2 goals for the Devils.
* The Buffalo Sabres beat the Montreal Canadiens, 5-3 at the Buffalo Memorial Auditorium.
* The Detroit Red Wings beat the Pittsburgh Penguins, 5-2 at the Joe Louis Arena in Detroit.
* The Winnipeg Jets beat the Los Angeles Kings, 4-3 at the Winnipeg Arena.
* And the Edmonton Oilers beat the Vancouver Canucks, 5-4 at the Pacific Coliseum in Vancouver. The Oilers blew a 4-1 lead in the 3rd period, but won anyway when Charlie Huddy scored with 2:09 left in overtime.
