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The Man Who First Got ‘Borked’

U.S. Supreme Court nominations have always been political, but they haven’t always been so starkly partisan. The man whose nomination changed that was Robert H. Bork.

Bork, a former solicitor general and federal judge who died last week at 85, was known for his cameo role in the Watergate crisis, as well as for some notable decisions in the federal appeals court. The height of his fame, however, came when then-President Ronald Reagan nominated him to the Supreme Court in 1987. As a result of what followed, Bork’s name became a verb, and the nature of the Supreme Court nomination process underwent a major shift.

Bork’s nomination was the point at which the Supreme Court became overtly politicized along partisan lines. There were staunchly conservative and liberal jurists on the high court bench before the late 1980s, but appointments were not a battle between Democrats and Republicans as such until Senate Democrats argued that Bork was unfit for service. Today, nominees who say they have been “borked” are those who claim to have been rejected solely for political reasons.

Democrats never forgave Bork for his 1973 role in the “Saturday Night Massacre.” Bork, then the nation’s solicitor general, fired Special Prosecutor Archibald Cox, who was pursuing a court order to force President Richard Nixon to turn over secret Oval Office tapes. Bork acted after both the attorney general and deputy attorney general had refused to follow the White House’s order to fire Cox. Democrats from that day forward saw Bork as a collaborator in Nixon’s attempt to cover up the Watergate scandal. Bork, in all likelihood, saw himself simply as a member of the executive branch, bound to carry out the orders of the chief executive.

Groups pushing for Bork’s defeat in the Senate claimed that he would turn back the clock on individual and civil rights, citing his belief that constitutional values were only those the document explicitly spelled out as a sign he was insensitive to minority interests. While his supporters claimed in turn that his opponents’ attacks were largely misrepresentation, those attacks gained national attention. The four members of the American Bar Association screening panel who claimed Bork was unqualified expressed concern over “his sensitivity to the rights of women and minority persons or groups;” Tom Shales, The Washington Post’s television critic at the time, bluntly said that “[Bork] looked, and talked, like a man who would throw the book at you - maybe like a man who would throw the book at the whole country.”

Every Supreme Court nomination since Bork has been an exercise in signaling, with justices giving away only the vaguest hints about their judicial philosophies. Bork’s philosophy, on the other hand, was an open book, whether or not you agreed. No one had to guess at his judicial inclinations.

I am glad Bork never made it onto the Supreme Court. His view of the personal rights and liberties that are protected under the Constitution was unreasonably narrow by the standards of any era.

In Bork’s world, states like Connecticut would remain free to restrict married couples’ privacy by prohibiting their access to birth control – as Connecticut, in fact, did until Griswold v. Connecticut found such restriction unconstitutional in 1965.

In Bork’s world, Bowers v. Hardwick, a 1986 case centering on a Georgia law banning consensual homosexual sex between adults, was decided correctly; Bork would almost certainly have voted against the decision to overturn it in Lawrence v. Texas in 2003.

I wonder whether, in the absence of the 19th Amendment, Bork would have taken the position today that the Constitution does not give women the right to vote (notwithstanding the equal protection provisions of the 14th Amendment). He gave the impression of being that much of an anachronism.

Yet while I am not upset that Bork was kept off the high court, it does sadden me that Supreme Court nominations have since devolved into a partisan fight, rather than an open discussion of what the Constitution means and the role that the law plays in our lives.

Being borked is never a good thing - no matter which side you’re on.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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