Bork Nomination 1987

⬅️ Hub: 60.3 Politics · Concept: Constitutional Hardball · Companion event: Merrick Garland Nomination · Argument map: Supreme Court Expansion — Argument Map and Fact Check

The 1987 rejection of Judge Robert H. Bork — the event Republicans name when asked who started the judicial confirmation wars, and the reason “to bork” entered the language as a verb.

Why this note exists

Every retaliation argument in the court-expansion debate requires a first defector. Democrats date it to Garland, 2016. Republicans date it here. Neither side invented its starting point, and no neutral method picks between them — which is precisely why the escalation has no agreed terminus. See Constitutional Hardball.

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Timeline

Background: the Saturday Night Massacre (1973)

Polling showed a majority favoring impeachment for the first time after the Massacre. Bork’s role became a live issue in 1987 — which matters, because the claim that he was rejected purely for judicial philosophy has to account for it.

The nomination (1987)

The aftermath — the seat is filled anyway

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The Vote Was Not Party-Line

This is the detail most often dropped, and it cuts against the “pure partisanship” reading:

Crossovers in both directions

Six Republicans voted against Bork: John Chafee (RI), Bob Packwood (OR), Arlen Specter (PA), Robert Stafford (VT), John Warner (VA), Lowell Weicker (CT).
Two Democrats voted for him: David Boren (OK), Fritz Hollings (SC).
→ Senate roll call, Oct. 23, 1987 · nomination record PN487

Specter, a Republican on the Judiciary Committee, opposed Bork on stated substantive grounds after the hearings. A rejection that pulls six of the president’s own party is harder to characterize as a party-line execution — though the reply is that the campaign preceding it made the political cost of support unbearable.

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Kennedy’s Speech

Delivered within the hour of the nomination, before hearings, before testimony. It opened by announcing opposition and urging rejection, then described a hypothetical “Robert Bork’s America” — a litany invoking back-alley abortions, segregated lunch counters, rogue police, censorship, and courts closed to ordinary citizens. Full text: Wikisource · video via C-SPAN.

Bork’s assessment, later: “There was not a line in that speech that was accurate.”

What the speech is actually evidence of

The conservative case does not rest on the speech being false — that is contested and partly a question about how to extrapolate from a judicial philosophy. It rests on the timing. A floor speech characterizing a nominee 45 minutes after his name is announced cannot be a response to his record as developed in hearings; it is the opening of a public campaign. That is the specific practice critics say was new: organized, well-funded, ideological opposition mobilized before the process began.

The counter is that Bork’s views were already extensively published — he had written for decades about Griswold, the Civil Rights Act, and the First Amendment — so opposition did not need to wait for testimony. Both things are true, and which one you weight determines whether 1987 reads as a norm violation or as the Senate finally doing its job in public.

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The Contested Question: Was It a Norm Violation?

The conservative claim (as argued by Ryan Mullally in Pisco vs Ryan Mullally — Court Expansion Debate): before 1987, the norm was that nominees were assessed on professional qualifications, not on how they would rule. Democrats broke it, and everything since follows.

The rebuttal (Pisco’s, and it has the better historical support):

• Presidents have always selected for expected outcomes. FDR chose nominees expected to uphold the New Deal. The Presidential Commission records that the 1801, 1837, and 1863 changes to the Court each served a party’s interest. Braver and Crowe document partisan calculation throughout the nineteenth century. If presidents may select for expected rulings, it is hard to explain why senators may not reject on the same basis.
• The Saturday Night Massacre was a legitimate, non-ideological consideration, and it was raised.
• The composition did not change in the partisan sense. Reagan filled the seat with his own third choice, confirmed unanimously by the same Democratic Senate — which later also confirmed Clarence Thomas. Compare 2016, where the seat went to the next president.
• The Senate voted. Hearings were held, testimony taken, a recorded floor vote cast. Whatever else it was, advice and consent was exercised, not withheld.

The distinction that organizes everything

This is the same line that separates 1969–70 from 2016 (see Merrick Garland Nomination): declining to confirm versus declining to consider. Bork was considered at length and defeated. Garland was never taken up.

That distinction favors the Democratic account of who defected first. Its weakness is the one raised in the debate: if the distinction is real, could a Senate simply hold hearings and vote every nominee down forever, achieving a blockade with procedural cover? Nobody has answered that.

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Why 1987 Still Matters

• It produced Anthony Kennedy, who held the Court’s median seat for three decades and wrote Casey, Lawrence, and Obergefell. Conservatives read this as the concrete cost of the defeat: a generation of jurisprudence they attribute to a seat they believe was taken from them. It is their strongest emotional claim and their most concrete injury.
• It gave the movement a verb. “Borking” became shorthand for organized, pre-emptive, ideological opposition to a nominee.
• It is McConnell’s standard citation. He has routinely traced the confirmation wars to 1987 in defending later escalations.
• It shaped nominee behavior permanently. Bork answered expansively about his philosophy and was defeated for it. Every nominee since has been coached toward opacity — the “no comment on matters that may come before the Court” posture that makes modern hearings largely uninformative.

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The Full Escalation Ladder

Where you start this table determines who the aggressor is. That is the whole problem.

The honest summary

Seligman: “even marking the start of this conflagration is itself contentious.”

Each rung is a genuine response to the one before it. Each side’s account is internally coherent. What neither side has is a principled reason to prefer its own starting date — and an argument that works regardless of who went first is not a retaliation argument at all, but a bare argument from advantage.

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Key Sources

Primary

• Senate roll call vote on the Bork nomination, Oct. 23, 1987 — the 42–58 tally with every senator’s vote
• Nomination record PN487, 100th Congress
• “Robert Bork’s America” — full text · C-SPAN video
• Reagan’s message nominating Bork (U.S. Capitol Visitor Center)

Analyses

• National Constitution Center — On this day: Senate rejects Robert Bork
• How Robert Bork’s failed nomination changed the Supreme Court (HISTORY)
• The Original Sin of Robert Bork (Cato Institute) — the conservative retrospective. Link not included: the page appeared in search results but blocked every attempt to load it, so it is unverified and uncited here rather than linked on faith
• Presidential Commission on the Supreme Court — Final Report — situates 1987 in the appointments dispute

Not read in full

Bork’s own account is in The Tempting of America (1990); Ethan Bronner’s Battle for Justice (1989) is the standard narrative history. Neither was consulted for this note — the timeline above rests on the primary records and analyses linked.

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Open Questions

• Was pre-hearing ideological opposition genuinely new in 1987, or newly organized and televised?
• If senators may not weigh expected rulings, on what basis may presidents select for them? Nobody defends the asymmetry directly.
• Does the confirm/consider distinction survive strategic use — could a Senate vote nominees down indefinitely and achieve a blockade with cover?
• Would an originalist majority in 1987 have changed the trajectory as much as both sides assume, given that Kennedy voted with conservatives in most areas outside social issues?

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Cross References

• Constitutional Hardball — the concept and the asymmetry debate
• Merrick Garland Nomination — the competing origin point
• Supreme Court Expansion — Argument Map and Fact Check — where the origin dispute does its work
• Pisco vs Ryan Mullally — Court Expansion Debate — Bork argued live as the prior norm violation
• Law · Republican Party · 60.3 Politics