President Gerald Ford’s only Supreme Court appointment, John Paul Stevens, also turned out to be a disappointment for conservative voters. Stevens’s liberalism might have “surprised his appointer,” as George Will has written, but it apparently did not displease him.37 In 2005, Ford reflected, “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”38 Conservatives, however, certainly were displeased. Among his other affronts to sound constitutional interpretation, Stevens authored the opinion that conferred on government agencies broad discretion in interpreting acts of Congress,39 and he dissented from the landmark Heller decision, which affirmed that the right to bear arms is an individual right.40
The records of Eisenhower, Nixon, and Ford showed conservative voters that they could not trust Republican presidents to appoint justices who felt bound by the text of the Constitution as understood by those who ratified it.
By the time Ronald Reagan was elected president in 1980, the conservative electorate was actively concerned about judges. The Republican platform called for judges who respected “traditional family values and the sanctity of innocent human life,”41 leading liberal media and special interest groups to accuse Reagan of imposing an abortion “litmus test” on potential judges. He denied the charge, but he promised to appoint judges who opposed the judicial activism of the Warren and Burger Courts. He also promised that one of the first Supreme Court vacancies of his administration would be “filled by the most qualified woman” he could find.42 “It is time for a woman to sit among our highest jurists,” he said.43
Justice Potter Stewart resigned at the end of the Court’s term in 1981, Reagan’s first year in office. Edwin Meese III, one of Reagan’s closest advisers, recalls that the list of possible nominees contained only two qualified Republican female judges, one of whom was Sandra Day O’Connor, a state appellate judge in Arizona. When O’Connor met with President Reagan, they didn’t discuss anything of substance but chatted about cattle ranching.44 A Republican politician before she became a judge, she seemed conservative enough in her hearing and was confirmed easily, but she soon began to drift left.
The elevation of Justice William Rehnquist to chief justice after Warren Burger’s retirement in 1986 was unusually controversial for its time. With his record as the most conservative member of the Court, Rehnquist became the target of more than 150 liberal interest groups, who placed damaging stories with friendly media outlets. They accused him of having harassed and intimidated black and Latino voters in the 1960s and unearthed a racially restrictive covenant on property he owned (of which he was unaware and which was probably unenforceable). While the effort to defeat him failed, it was a rough road to confirmation, and the thirty-three Senate votes against him were the most cast against a chief justice up to that time.
Antonin Scalia, on the other hand, was easily confirmed to fill Rehnquist’s seat as an associate justice even though he was one of the fathers of the conservative legal movement. His hearing, in which he joked with senators while smoking a pipe, was easier in part because he would be the first Italian American on the Court and in part because of disgust with the brutality of Rehnquist’s confirmation.45 And perhaps the Democrats were simply exhausted after that battle.46
The Senate had begun taking its constitutional role of “advice and consent” in the appointment of justices much more seriously during Nixon’s presidency. Three of Eisenhower’s five nominees—Warren, Brennan, and Whittaker—were confirmed by voice vote. Voting for the record by name became a matter of course only under Nixon. This growing self-assertion by the Senate, along with the Court’s ever-bolder activism, which raised the political stakes of each appointment, made the confirmation process increasingly contentious. Americans learned just how contentious it could be when Justice Lewis Powell retired in 1987.
On July 1, President Reagan nominated Judge Robert Bork of the U.S. Court of Appeals for the D.C. Circuit to replace Powell. The disastrous confirmation battle that followed would galvanize a generation of conservative lawyers and jurists, who viewed the scurrilous attacks on Bork, one of the greatest legal minds of his generation, as unconscionable.
Within an hour of the announcement, Senator Edward M. Kennedy, attempting to strangle the nomination in its cradle, took to the floor of the Senate and delivered a shockingly vicious speech:
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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy. America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be. 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 on the next generation of Americans. No justice would be better than this injustice.47
The accusations were completely unfair. Bork had never suggested that he opposed the teaching of evolution. The evocation of “rogue police” breaking down doors in midnight raids was a reference to Bork’s criticism of the judge-created “exclusionary rule,” which forbids the presentation at trial of evidence that was obtained improperly. In general, Senator Kennedy confused Bork’s legal arguments with policy positions and then further mischaracterized the outcomes of the cases at issue. Supporting the right of Nazis to march in public, as the Supreme Court did in National Socialist Party of America v. Village of Skokie, does not suggest support for Nazi beliefs.48 It does, however, indicate support for free speech and the right to assemble.
Kennedy’s speech was a pivot from evaluating a nominee’s qualifications to judging his politics. Liberal activists approved, and they noticed that it worked. As the legal correspondent Jeffrey Toobin observed, “It was crude and exaggerated, but it galvanized the opposition as nothing else, and no one else, could.”49
Four hundred special interest groups, an unprecedented number, weighed in on Bork’s nomination, three hundred of them in opposition. A few groups had campaigned for or against Supreme Court nominations intermittently prior to that, but Bork’s hearing was the first time that sophisticated marketing techniques were deployed against a Supreme Court nomination. Arguments were tailored to specific audiences for radio ads and newspaper op-eds.
People for the American Way ran a national television ad, likely the first of its kind, featuring the actor Gregory Peck, whose association in the popular imagination with the fictional lawyer Atticus Finch made him a symbol of integrity. Peck asserted that Bork had “defended poll taxes and literacy tests, which kept many Americans from voting. He opposed the civil rights law that ended ‘Whites Only’ signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks freedom of speech does not apply to literature and art and music.” Ending on an ominous note, Peck reminded viewers that “if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”50