The longest-serving liberal justice in modern times has lamented the treatment of a conservative judge prevented from joining him on the Supreme Court by Joe Biden.
The failed Supreme Court nomination of Robert Bork changed public perceptions of would-be jurists, seen now more for their political views than legal experience and qualifications, retired Justice John Paul Stevens warned.
Stevens, 99, defended Bork, who died in 2012, in his new memoir, The Making of a Justice, and lamented the tactics used by Bork’s opponents to defeat his nomination to the Supreme Court in a historic political battle.
“I have always ranked him as the most persuasive solicitor general who represented the United States before the Supreme Court while I was a justice,” Stevens wrote of Bork. “I thought, and still think, that he was eminently qualified for the position.”
President Ronald Reagan nominated Bork, a former federal judge, conservative legal theorist, and advocate of judicial originalism, to the Supreme Court in 1987 to replace retiring Justice Lewis Powell. But he came under intense criticism before and during his confirmation hearings before the Senate Judiciary Committee for his conservative legal views and scholarly writings.
Then-Sen. Joe Biden, D-Del., presided over Bork’s confirmation hearings and is viewed as having helped lay the groundwork for the hyperpolitical nominations battles that persist today. Before Bork was nominated to the high court, Biden said he would support his nomination if tapped for the Supreme Court. But Biden reversed his position as Senate Democrats and liberal groups opposed Bork and launched a campaign to derail his nomination.
The Senate Judiciary Committee ended up rejecting his nomination, and Bork fell short of confirmation by the full Senate in a 42-58 vote.
The confirmation battle set the stage for ideological wars over Supreme Court nominees that center on judicial philosophy rather than qualifications and gave rise to the verb “to bork,” defined by Merriam-Webster as “to attack or defeat unfairly through an organized campaign of harsh public criticism or vilification.”
“The tactics of Bork’s opponents included misstatements about his views and a certain amount of unfair comment on his character, motivated in part by a fear that his approval might lead to the reexamination and possible overturning of Roe v. Wade,” Stevens wrote.
The retired justice said Bork’s writings following his failed Supreme Court nomination seemed to confirm concerns he would overturn the landmark 1973 abortion decision.
“But I have never been convinced that his actual work as a justice would necessarily have paralleled those writings,” Stevens said. “There is a world of difference between a judge’s duty to rule impartially and a citizen’s freedom to express his or her own views.”
Stevens also noted the “unfortunate consequences” of the 1987 confirmation hearings.
“In any event, one of the unfortunate consequences of the Bork hearings is that we will never know what kind of a justice he would have been even though we do know that he was an extraordinary circuit judge,” he wrote. “A second unfortunate consequence of those hearings is that they have given the public, as well as some senators, the impression that the political views of nominees to the Supreme Court are more important than their judicial qualifications. That impression, in turn, undermines the public’s confidence in judges as impartial guardians of the rule of law.”
After Bork’s failed nomination, Reagan tapped Anthony Kennedy to the Supreme Court. Kennedy, who was confirmed, served as the court’s swing vote until his retirement last year.
Stevens, meanwhile, spent nearly 35 years on the high court and retired in 2010.
