Why Supreme Court Confirmations Have Become So Bitter

TEXT ON SCREEN: FEBRUARY 25, 2022

NARRATION: President Joe Biden nominated Judge Ketanji Brown Jackson to the United States Supreme Court.

ARCHIVAL (NBC NEWS, 2-25-22):
JUDGE KETANJI BROWN JACKSON: I am truly humbled by the extraordinary honor of this nomination.

NARRATION: Biden hopes for bipartisan support, but there’s a long history of contentious confirmation hearings…

ARCHIVAL (GETTY FOOTAGE, 10-26-20):
PROTESTORS: We will abolish abortion!

NARRATION:…starting 35 years ago when the bitter battle over whether to confirm Judge Robert Bork gripped the nation.

JOHN DANFORTH: In the confirmation process, it cannot be the case that anything goes to win the battle.

NARRATION: What was behind Bork’s defeat? And how did his hearings change the way Supreme Court justices are confirmed today?

ARCHIVAL (C-SPAN, 9-12-05):
MALE VOICE: You may be seated.

ARCHIVAL (C-SPAN, 7-1-87):
PRESIDENT RONALD REAGAN: I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an Associate Justice of the Supreme Court.

NARRATION: In 1987, President Reagan had a unique opportunity, one that hadn’t occurred in decades, to move the balance of votes on the Supreme Court in a decidedly conservative direction.

MARK GITENSTEIN (FORMER CHIEF COUNSEL, SENATE JUDICIARY COMMITTEE, 1981-89): Republicans were losing fights on school prayer and school busing and abortion in the Congress, and they wanted to win these fights in the Supreme Court.

NARRATION: As his nominee, Reagan picked a respected jurist who adhered to a rigid interpretation of the Constitution, which led him to voice controversial opinions on social issues.

ARCHIVAL (NBC, 6-5-83):
JUDGE ROBERT H. BORK: My opinion is that there are too many laws in this country and that we are redressing too many petty grievances.

NARRATION: Democrats saw Judge Bork as someone who would turn back the clock on established individual and civil rights.

ARCHIVAL (C-SPAN, 7-10-87):
SENATOR JOE BIDEN: The constitution says the United States Senate has as much responsibility in determining who’s on the court as the President does. That’s what this is about.

ARCHIVAL (ABC, 9-15-87):
SENATOR JOE BIDEN: Hearing will come to order, please.

NARRATION: Day one of Robert Bork’s confirmation hearings started off with liberal guns blazing.

ARCHIVAL (C-SPAN, 9-15-87):
SENATOR TED KENNEDY: The President has sought to appoint an activist of the Right whose agenda would turn us back to the battles of a bitterly divided America.

JOHN DANFORTH (FORMER U.S. SENATOR): Kennedy created kind of a fiendish picture of Robert Bork.

ARCHIVAL (C-SPAN, 9-15-87):
SENATOR TED KENNEDY: In Robert Bork’s America there is no room at the inn for blacks and no place in the Constitution for women and in our America, there should be no seat on the Supreme Court for Robert Bork.

MARK GITENSTEIN: He gave a very tough speech taking every one of Bork’s positions and taking it to its most extreme logical conclusion.

NARRATION: Even before the hearings began liberal groups launched an unprecedented campaign– taking out newspaper and television ads attacking Bork’s record.

ARCHIVAL (PEOPLE FOR THE AMERICAN WAY COMMERCIAL, 1987):
BARBARA JORDAN: With respect to Robert Bork, our rights would be less secure.

ARCHIVAL (PEOPLE FOR THE AMERICAN WAY COMMERCIAL, 1987):
GREGORY PECK: Robert Bork wants to be a Supreme Court Justice but the record shows he has a strange idea of what justice is.

ANDREW COHEN (FELLOW, BRENNAN CENTER FOR JUSTICE): That tradition of Supreme Court nominees had been sort of a genteel one. The Democrats had different plans, so they, I think, blew up the playbook that had existed for decades before that.

ARCHIVAL (NBC, 10-9-87):
SENATOR HOWARD METZENBAUM: You said there is no existing opinion, there certainly is.
JUDGE ROBERT H. BORK: There is not, that is a vacated opinion, Senator.

NARRATION: Bork’s testimony was televised live for five days and the exchanges grew increasingly combative.

ARCHIVAL (NBC, 10-9-87):
SENATOR ORRIN HATCH: But the opinion is there.
JUDGE ROBERT H. BORK: Well it’s in print. It has been declared to have no legal force or effect whatsoever.

JOHN DANFORTH: And Bork kind of looked funny. He had a goatee. And then he said some things that people thought and they were very Bork.

ARCHIVAL (C-SPAN, 9-16-87):
JUDGE ROBERT H. BORK: As you may have noticed in these hearings I’ve been taking unpopular positions frequently in my life.

JOHN DANFORTH: He liked to be controversial. So, he was asked, ‘why do you want to be a Supreme Court Justice?’

ARCHIVAL (C-SPAN, 9-19-87):
JUDGE ROBERT H. BORK: I think it would be an intellectual feast just to be there and read the briefs.

JOHN DANFORTH: Nobody who is politically astute would say something silly like that. He did. And, of course, it made him appear to be, sort of, an oddity. But it, it played into the hands of those who were trying to defeat him.

NARRATION: But, at the heart of the hearings were Bork’s controversial early writings. He had condemned a landmark civil rights law as, quote, unsurpassed ugliness and disagreed that the constitution protected gender equality, the right to privacy, and abortion.

ARCHIVAL(C-SPAN, 9-15-87):
SENATOR JOE BIDEN: Because neither is mentioned in the Constitution. JUDGE ROBERT H. BORK: Well neither is mentioned. All that means is that the judge may not choose.

NARRATION: Bork insisted that many of his opinions had changed. But Democrats were not buying it.

ARCHIVAL (C-SPAN, 9-18-87):
SENATOR HOWARD METZENBAUM: You have stated views time again that would reverse progress for blacks, that would slam the door on women, that would allow government in the bedroom, that would limit free speech, that would undercut the principle of equality under the law.
JUDGE ROBERT H. BORK: I can’t say this enough times. You know, beginning with Brown v. Board of Education I have supported Black equality. And I have done that in print long before I got here. I have never said anything or decided anything that should be frightening to women. You’re undoubtedly correct, Senator, that there are women who are apprehensive. I think it can only be because they don’t know my record. And, I regret to say, I think there is no basis for the charges you have leveled at me.

ANDREW COHEN: He didn’t just give neutral, sort of, fluffy answers to the questions. He actually engaged in this sort of dialogue with members of the Senate Judiciary Committee. But, it seems like every time he opened his mouth and was combative, it helped the Democrats prove their case.

ARCHIVAL (CBS, 10-2-87):
PHIL JONES: With his nomination to the Supreme Court in deep, deep trouble.

ARCHIVAL (CBS, 9-30-87):
PRESIDENT RONALD REAGAN: Let us insist the Senate not give in to noisy strident pressures and that elected officials not be swayed by a deliberate campaign of disinformation and distortion.

NARRATION: On the day of the Bork confirmation vote, Senator John Danforth voiced the fury that many of his Republican colleagues were feeling.

ARCHIVAL (C-SPAN, 10-23-87):
SENATOR JOHN DANFORTH: The man’s been trashed in our house…some of us helped generate the trashing. Others of us yielded to it. But all of us, myself included, all of us have been accomplices to it.

JOHN DANFORTH: Robert Bork was the beginning of the politicization of the Supreme Court. This is political. We’ve got to win the battle. And if it takes destroying this decent human being to win the battle, so be it.

ARCHIVAL (PBS, 10-23-87):
JIM LEHRER: The Robert Bork nomination ended to day.

ARCHIVAL (ABC, 10-23-87):
SENATOR HARRY REID: The Yeas are 42, the Nays are 58. The nomination is not confirmed.

NARRATION: And it wasn’t long before Bork’s name became synonymous with vilification of a nominee for public office.

ANDREW COHEN: I don’t know that anyone has been Borked the way Bork was Borked since that, but it’s clearly part of the lexicon.

ARCHIVAL (C-SPAN, 10-10-91):
L. BRENT BOZELL III: Judge Thomas is not only being Borked, but he’s giving new meaning to the term being Borked.

ARCHIVAL (MSNBC, 7-20-09):
MICHAEL STEELE: What did Judge Bork go through. The little thing called Borking – his name is now a verb.

ARCHIVAL (C-SPAN, 7-17-93):
REPORTER: You’re familiar with the verb to be Borked.
JUDGE ROBERT H. BORK: I’ve heard it here and there. And I must say to have your name become a verb is one form of immortality.

NARRATION: Ironically, nearly four decades later, some legal experts see the Bork hearings as a model for how the judicial nomination process should work.

ANDREW COHEN: The Reagan Administration pitched this one candidate, Robert Bork. The Senate said, “No, it’s not going to work. We, we want somebody a little bit more moderate." And they ended up with Justice Anthony Kennedy. His views of the Constitution have been pretty much along the lines of what popular expression has been in the 30 years that he’s been on the Court. So you can argue that even though it was bad news for Robert Bork, what happened for the country in the process of selecting a Supreme Court nominee was exactly the way it’s supposed to work.

ARCHIVAL (C-SPAN, 9-16-87):
SENATOR ARLEN SPECTER: Judge Bork, I think this is important.

ROBERT POST (FORMER DEAN, YALE UNIVERSITY LAW SCHOOL): The interesting thing is it had exactly the conversation that one would want about a nominee to the Supreme Court. It was a full and open discussion in which the candidate participated about his judicial philosophy. We haven’t had that since Bork.

ANDREW COHEN: The sad lesson of the Bork story is it taught future nominees..

ARCHIVAL (C-SPAN, 9-12-05):
SENATOR ARLEN SPECTER: You may be seated.

ANDREW COHEN:…that the only way you’re going to get to this cherished position that you’ve, maybe, worked your whole life for, is to not be candid and so they evade.

ARCHIVAL (C-SPAN, 1-10-06):
JUDGE SAMUEL ALITO: I don’t think I could answer that.

ARCHIVAL (C-SPAN, 7-21-93):
JUDGE RUTH BADER GINSBURG: I would prefer to await the particular case.

ARCHIVAL (THE NEW YORK TIMES, 3-21-17):
JUDGE NEIL GORSUCH: I can’t prejudge that litigation.

ANDREW COHEN: They obfuscate.

ARCHIVAL (C-SPAN, 9-14-05):
JUDGE JOHN ROBERTS: Senator, I can’t answer that question in the abstract.

ANDREW COHEN: They basically plead the Fifth.

ARCHIVAL (C-SPAN, 9-15-09):
SENATOR AL FRANKEN: That means you’re not going to tell us.
JUDGE SONIA SOTOMAYOR: (smiles)

ANDREW COHEN: And the American people don’t get a clear sense of where they really stand.

ARCHIVAL (PBS NEWSHOUR, 10-14-20):
JUDGE AMY CONEY BARRETT: I am not going to express an opinion because these are very charged issues, they have been litigated in the courts and so I will not engage on that question.

ARCHIVAL (C-SPAN, 9-14-05):
SENATOR JOE BIDEN: So you’ve told me nothing Judge. With all due respect…you’ve not, look, this is – it’s kind of interesting this kabuki dance we have in these hearings here.

ANDREW COHEN: At the end of the day, you know, they’re still, sort of, blank slates. That’s why some people were shocked by the chief justice’s vote in the Affordable Care Act case where he sort of switched. That’s why some people have been shocked by Justice Kennedy’s embrace of the gay rights cases.

ARCHIVAL (NBC NEWS, 2-25-22):
JUDGE KETANJI BROWN JACKSON: Justice Breyer, the members of the Senate will decide if I fill your seat but please know that I could never fill your shoes.

NARRATION: At HER confirmation hearings, Judge Ketanji Brown Jackson is expected to be just as cautious as past nominees in answering questions from the senators who will decide her fate.

(END)