October 23, 1987: Robert Bork Is Rejected for the Supreme Court

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.

*

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.

October 20, 1973: The Saturday Night Massacre

October 20, 1973: The Sydney Opera House, Australia's most famous structure, opens. The Rolling Stones hit Number 1 on the U.S. singles charts with "Angie." The Six Million Dollar Man premieres on ABC, starring Lee Majors as astronaut-turned-bionic-federal-agent Steve Austin. (Definitely not to be confused with the Stone Cold "professional wrestler" using the same name.)

But the big story of the day is political, in the growing scandal known as Watergate, which began on June 17, 1972, with a break-in at the offices of the Democratic National Committee in Washington, perpetrated by 5 men working for the committee working to re-elect President Richard Nixon.

Whether Nixon knew about the break-in beforehand and authorized it has never been established, but he worked like crazy to cover it up. On July 16, 1973, it was revealed that there was a tape-recording system in the Oval Office at the White House, and that these tapes could prove Nixon guilty -- or, perhaps, prove him innocent; or, at least, provide enough reasonable doubt as to get him acquitted of any criminal charges.

On August 29, John Sirica, the Chief Judge of the United States District Court for the District of Columbia, ordered Nixon to turn the tapes over. Time magazine would name Sirica its Man of the Year for 1973.

On October 19, in an effort to get away with whatever he did that was recorded on those tapes, Nixon offered Congress a compromise: He would allow Senator John Stennis to review the tapes, and present Special Prosecutor Archibald Cox with summaries.

On this day, Cox publicly refuses to accept this compromise. He knows that Stennis is not only a conservative from Mississippi and a supporter of Nixon's -- he's a conservative Southern Democrat, a.k.a. a "Dixiecrat," and no friend of mainstream Democrats -- but also 72 years old and hard of hearing. If those tapes reveal that Nixon committed an impeachable offense, Stennis might not hear it properly. And even if he does, he might refuse to admit it to Cox, and claim his poor hearing caused him to miss it. Cox isn't buying it, and has enough guts to press onward.

Nixon decides that, in order to survive as President, he has to fire Cox -- whom he had never fully trusted, as Cox had been Solicitor General under President John F. Kennedy and an old friend of JFK's, and thus a partisan Democrat.

So he instructs his Attorney General, Elliot Richardson (in the photo on the right on that Daily News front page), the man who had hired Cox and had the power to fire him, to fire him. Richardson refuses, because he thinks it will spark a Constitutional crisis. Nixon says do it or you're fired. Richardson does the honorable thing, and resigns his post.

So Nixon goes to the next man in line, Richardson's Deputy Attorney General, William Ruckelshaus.  He tells Ruckelshaus to fire Cox. He refuses. Nixon says do it or you're fired. Ruckelshaus still refuses, but does not resign. Nixon fires him.

So with the top 2 men in the U.S. Department of Justice now gone, Nixon goes to the Number 3 man, the Solicitor General, and tells him to fire Cox. He does, because he values Nixon more than he values the Constitution.

Word quickly gets out, and the Washington press corps quickly dubs these events "The Saturday Night Massacre." People wake up the next morning to bold headlines in their Sunday papers. The Sunday morning news shows, NBC's Meet the Press, CBS' Face the Nation, and ABC's Issues and Answers (the predecessor program to This Week), can talk about nothing else.

The pressure on Congress to begin impeachment proceedings against Nixon vastly increases. And, with the Vice Presidency vacant, as Spiro Agnew has resigned and Gerald Ford has not yet been confirmed by either house of Congress as the new VP, the next man in line is the Speaker of the House of Representatives, Carl Albert -- a Democrat, and, while from a Southern State, Oklahoma, considerably more liberal than Stennis.

Carl Albert

If Nixon had died, were impeached by the House and removed by the Senate, or were pressured into resigning, or had the 25th Amendment invoked by his Cabinet and removed that way, and Albert were still next in line at the time, it would have been a political earthquake, much bigger than the end of Nixon's Presidency actually turned out to be.

Within days, Nixon realizes what a blunder he has committed, and tells the Acting Attorney General to appoint a new Special Prosecutor. That man would be Leon Jaworski. By December 6, Ford would be confirmed by both houses and sworn in as Vice President, and the danger of Nixon being impeached and removed, and replaced by a President of the other party, was gone, and things calmed down in Watergate -- for a while.

There would be ramifications, of course -- some lasting much longer than the Nixon Administration itself. In 1987, President Ronald Reagan appointed that same former Acting Attorney General to the U.S. Supreme Court, as his judicial views fit the archconservative vision that Reagan had for the country. But his role in the Saturday Night Massacre was held against him -- although it's possible that he might have been rejected by the Senate anyway. His name was Robert Bork. (That's him, in the photo on the left.)

On April 26, 1974, the Yankees traded 4 pitchers to the Cleveland Indians: Fritz Peterson, Fred Beene, Steve Kline and Tom Buskey. Essentially sending away half their pitching staff, this became known as the Friday Night Massacre.

But the trade was necessary: It got rid of 4 pitchers who didn't take the game as seriously as they did their social lives, and it brought in 2 players who would be essential in the Yankees' 1976, '77 and '78 Pennants: 1st baseman Chris Chambliss and pitcher Dick Tidrow. (They also got pitcher Cecil Upshaw, but he was injured, turned out to be a nonfactor, and was traded after the season.)

And on November 2, 1975, Ford, trailing in the polls for the '76 election to both Reagan in the race for the Republican nomination and to a generic Democrat in the general election, "reshuffled" his Cabinet, letting some men go, and moving others to new posts. Among these, he asked Henry Kissinger, who had been both Secretary of State and National Security Advisor for 2 years, to stay at State but resign as NSA. It was 2 days after Halloween, and the media dubbed this the Halloween Massacre.

UPDATE: After campaigning to return to the Presidency in 2024, partly on the lie that the Administration of President Joe Biden had "weaponized the Department of Justice," Donald Trump weaponized it, ordering Attorney General Pam Bondi to go after his political opponents, while giving special treatment to those public figures who went along with him.

He ordered the Acting U.S. Attorney for the Southern District of New York (which includes Manhattan, The Bronx, and the Counties of Westchester, Putnam, Dutchess, Rockland, Orange and Sullivan), Danielle Sassoon, to drop the office's corruption case against Mayor Eric Adams of New York. This was done because Adams, despite being black and a Democrat, had agreed to work with Trump on the "migrant crisis." It was a blatant quid pro quo that, in the past, would have forced both men to resign their offices.

Sassoon, a conservative who had clerked for the late Supreme Court Justice Antonin Scalia, followed the path of Elliot Richardson, and chose to resign rather than carry out Trump's order. She said, in a letter to Bondi, "It is a breathtaking and dangerous precedent to reward Adams's opportunistic and shifting commitments on immigration and other policy matters with dismissal of a criminal indictment." 

Also resigning was the lead prosecutor on the case, Hagan Scotten, who wrote to Emil Bove, the Acting Deputy Attorney General, Bove, saying of the motion to dismiss the charges against Adams, "I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to me."

*

As Nixon himself would have said, I have made it perfectly clear: October 20, 1973 was a Saturday. Among the major college football games played that day were these:

* Number 1 Ohio State beat Indiana, 37-7 at Memorial Stadium in Bloomington, Indiana.

* Rivalry: Number 2 Alabama beat Number 10 Tennessee, 42-21 at Legion Field in Birmingham.

* Number 3 Oklahoma beat Number 16 Colorado, 34-7 at Owen Field in Norman, Oklahoma.

* Number 4 Michigan beat Wisconsin, 35-6 at Michigan Stadium in Ann Arbor.

* Number 5 Penn State beat Syracuse, 49-6 at Archbold Stadium in Syracuse, New York.

* Number 6 University of Southern California (USC) beat Oregon, 31-10 at the Los Angeles Memorial Coliseum.

* Number 7 Missouri beat Oklahoma State, 13-9 at Faurot Field in Columbia, Missouri.

* Number 8 Notre Dame beat Army, 62-3 at Michie Stadium in West Point, New York.

* Number 9 Louisiana State University (LSU) beat Kentucky, 28-21 at Tiger Stadium in Baton Rouge, Louisiana.

* Number 11 Nebraska beat Number 18 Kansas, 10-9 at Memorial Stadium in Lincoln, Nebraska.

* One ranked team lost to an unranked team: Number 19 Arizona lost to Texas Tech, 31-17 at Arizona Stadium in Tucson.

* Rivalry: Virginia Tech beat Virginia, 27-15 at Lane Stadium in Blacksburg, Virginia.

* Rivalry: Minnesota beat Iowa, 31-23 at Kinnick Stadium in Iowa City.

* Rivalry: Texas beat Arkansas, 34-6 at Razorback Stadium in Fayetteville, Arkansas.

* Navy beat Air Force, 42-6 at Navy-Marine Corps Memorial Stadium in Annapolis, Maryland.

* Yale beat Columbia, 29-0 at Baker Field in Upper Manhattan.

* Rutgers beat Delaware, 24-7 at Rutgers Stadium in Piscataway, New Jersey.

* Princeton beat Colgate, 37-21 at Palmer Stadium in Princeton, New Jersey.

There were no NFL games played that day. But a very big baseball game was played at the Oakland Coliseum: Game 6 of the World Series.

The New York Mets just need to win 1 of the last 2 games against the Oakland Athletics in Oakland, and they will have their 2nd World Championship in 5 seasons -- it has been 11 years since the Yankees went all the way. And Tom Seaver, "The Franchise," is on the mound. What can go wrong?

This can go wrong: Met manager Yogi Berra has sent Seaver out on just 3 days' rest, hoping that "Tom Terrific" can close out the defending World Champions on their own patch, so that no Game 7 will be necessary.

But Reggie Jackson, not yet a New York baseball legend, hits 2 doubles, scores 1 run and knocks in 2. Jim "Catfish" Hunter, also a future Hall-of-Famer and a future New York baseball legend, pitches brilliantly. The A's beat the Mets 3-1. So there will be a Game 7 tomorrow.

To this day, many Met fans are angry at Yogi for starting Seaver on short rest. I'm sure some of them thought of Yogi as a Yankee and hated him for that reason alone. They shouldn't: There are only 5 human beings who have managed the Mets to a Pennant: Yogi, Gil Hodges, Davey Johnson, Bobby Valentine and Terry Collins. And only Johnson, Valentine and Collins are still alive.

There are 8 National Basketball Association games played on this day:

* The New York Knicks do not play like defending World Champions, losing to the Chicago Bulls, 85-69 at Madison Square Garden. Indeed, in the other 7 NBA games played that day, only 1 other team scored fewer than the Bulls' 85, but that 85 was enough to win this game.

* The Capital Bullets play their 1st home game after 10 years in Baltimore, at the Cole Field House on the campus of the University of Maryland, in College Park, just inside the Capital Beltway. At this point, the Bullets are one of the better teams in the NBA, and they prove it, beating the Boston Celtics 96-87. Phil Chenier leads all scorers with 26 points.

It will take until December 2 for their new arena, the Capital Centre in Landover, on the other side of the Beltway, to be ready for the Bullets to play there. They then changed their name to the Washington Bullets. The following season, it also became home to an NHL expansion team, the Washington Capitals. In 1997, both teams would move into a new arena in the District of Columbia, now known as the Capital One Arena, and the Bullets would change their name to the Washington Wizards.

* The Buffalo Braves beat the Philadelphia 76ers, 116-100 at The Spectrum in Philadelphia.

* The Phoenix Suns beat the Atlanta Hawks, 118-108 at The Omni in Atlanta.

* The Milwaukee Bucks beat the Cleveland Cavaliers, 101-88 at the Cleveland Arena.

* The Golden State Warriors beat the Kansas City Kings, 100-81 at the Oakland Coliseum Arena (now the Oracle Arena).

* The Detroit Pistons beat the Houston Rockets, 107-104 at the Hofheinz Pavilion (now the Fertitta Center) in Houston.

* And the Portland Trail Blazers beat their regional rivals, the Seattle SuperSonics, 123-108 at the Portland Memorial Coliseum.

There were 3 games played in the American Basketball Association:

The Virginia Squires beat the Utah Stars, 106-95 at The Scope in Norfolk.

* The Carolina Cougars beat the Kentucky Colonels, 105-102 at Freedom Hall in Louisville.

* And the San Antonio Spurs beat the Indiana Pacers, 92-66 at the HemisFair Arena in San Antonio.

There were 6 games played in the National Hockey League:

* The New York Rangers lost to the Toronto Maple Leafs, 3-2 at Maple Leaf Gardens in Toronto.

* The New York Islanders lost to the Buffalo Sabres, 2-1 at the Nassau Coliseum.

* The Atlanta Flames beat the Montreal Canadiens, 4-2 at the Montreal Forum.

* The Pittsburgh Penguins beat the California Golden Seals, 5-3 at the Civic Arena in Pittsburgh.

* The St. Louis Blues and the Minnesota North Stars played to a 4-4 tie, at the Metropolitan Sports Center in the Minneapolis suburb of Bloomington, Minnesota.

* And the Los Angeles Kings beat the Philadelphia Flyers, 3-0 at The Forum in the Los Angeles suburb of Inglewood, California.

There were 3 games played in the World Hockey Association:

* The New York Golden Blades lost to the Quebec Nordiques, 8-1 at Le Colisee de Quebec.

* The Cleveland Crusaders beat the Toronto Toros, 6-4 at the Cleveland Arena, which also hosted a Cavs game that day.

* And the Vancouver Blazers beat the Chicago Cougars, 4-3 at the Pacific Coliseum in Vancouver.

In notable college football games played that day:

* Number 1 Ohio State beat Indiana, 37-7 at Memorial Stadium in Bloomington, Indiana.

* In their traditional 3rd Saturday in October meeting, Number 2 Alabama beat Number 10 Tennessee, 42-21 at Legion Field in Birmingham.

* Number 3 Oklahoma also beat a ranked opponent, Number 16 Colorado, 34-7 at Owen Field in Norman, Oklahoma.

* Number 4 Michigan beat Wisconsin, 35-6 at Michigan Stadium in the Detroit suburb of Ann Arbor.

* Number 5 Penn State beat Syracuse, 49-6 at Archbold Stadium in Syracuse.

* Number 11 Notre Dame beat Army, 62-3 at Michie Stadium in West Point, New York. Army hadn't beaten Notre Dame since 1958, and still hasn't, losing 15 games over those 63 years.

* In New Jersey, Rutgers beat the University of Delaware, 24-7 at the old Rutgers Stadium in Piscataway.

* Princeton beat Colgate, 37-21 at Palmer Stadium in Princeton, New Jersey.

* And New York City's only major team of the time, Columbia University, lost to Yale, 29-0 at Baker Field.

Also, what would become my high school, East Brunswick in Middlesex County, New Jersey, beat New Brunswick, 41-0 at Memorial Stadium in New Brunswick.

And Arsenal drew 1-1 with Ipswich Town at Highbury.