Bork’s Senate testimony dragged on for five days, and the published record stretched to 6,511 pages. The hearings lasted twelve days and included testimony from twenty special interest groups. Reagan made more than thirty public statements on Bork’s behalf, and the White House launched a public relations offensive, but it was too little and too late.51 “We thought it was going to be a coast job, to tell you the truth—that it was going to be easy,” recalled Reagan’s communications director, Tom Griscom. “[We had] never seen somebody run the type of effort they ran [against Bork], and we let it get away from us.”52
Yet the Reagan team ought not to have been surprised after the warm-up campaign against Rehnquist a few years earlier, when Senator Kennedy had even given his “Robert Bork’s America” speech a dry run:
Imagine what America would be like if Mr. Rehnquist had been the Chief Justice and his cramped and narrow view of the Constitution had prevailed in the critical years since World War II. The schools of America would still be segregated. Millions of citizens would be denied the right to vote under scandalous malapportionment laws. Women would be condemned to second class status as second class Americans. Courthouses would be closed to individual challenges against police brutality and executive abuse—closed even to the press. Government would embrace religion, and the walls of separation between church and state would be in ruins. State and local majorities would tell us what we can read, how to lead our private lives, whether to bear children, how to bring them up, what kind of people we may become.53
Despite Democrats’ efforts, Rehnquist was elevated to chief justice, and held the position for nineteen years. None of Kennedy’s apocalyptic predictions came true.
The intellectual leader of the opposition to Bork was Professor Laurence Tribe of Harvard Law School, a prominent proponent of judicial activism whose book God Save This Honorable Court influenced many Democrats on the Judiciary Committee and was the “primer used by Judge Bork’s opponents to defeat his nomination.”54 Tribe urged senators to break with tradition: a qualified candidate should be rejected if he would change the ideological balance of the court, which conveniently leaned left. Senators should not shrink from evaluating the social, political, and legal views of the nominee. For two hundred years, the judicial ideal had been political impartiality, but Tribe wanted senators to think of judges as political forces. And he was right. Time after time, a liberal Supreme Court majority has shown itself to be the nuclear bomb of political warfare.
The offensive against Bork’s nomination was so devastating that it spawned a new word. To “bork” means “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification,” according to the Merriam-Webster dictionary.55
As the confirmation process degenerated into farce, Bork faced pressure to withdraw. His support from Attorney General Edwin Meese and others at the Department of Justice was strong, but in the wake of Iran-Contra and other scandals, Reagan had replaced his conservative circle of White House advisers with moderates who were far less enthusiastic about continuing the politically costly battle. Vice President George Bush’s office had encouraged Bork to withdraw as well. His confirmation by the Democrat-controlled Senate seemed impossible.
Bork understood that his nomination was doomed, but he would force the Senate to hold a vote and urged the country not to permit this travesty to be repeated. Using political campaign tactics against a Supreme Court nomination was “not simply disturbing,” he said, but “dangerous,” for it would “erode public confidence in the impartiality of courts.” No good judge, moreover, could effectively respond to such a campaign since his judicial responsibilities were “flatly incompatible” with doing so.56 Bork’s nomination was defeated by a vote of forty-two to fifty-eight.
After a second unsuccessful nomination—Judge Douglas Ginsburg was forced to withdraw after reports of past marijuana use—the president nominated Judge Anthony Kennedy of the Ninth Circuit. Conservatives had argued that nominating a moderate would reward the mob that had taken down Bork. “Even worse, it would be a powerful and haunting statement of acknowledgement that the President’s agenda is no longer salable to the American people,” warned Gary Bauer, a domestic policy adviser.57
Memoranda prepared at the time show that conservatives in the Reagan administration knew Kennedy might be a disappointment.58 But others in the administration were more optimistic, including Attorney General Meese. He had worked with Kennedy in California on projects for then-Governor Reagan, who had recommended that President Nixon appoint Kennedy to the federal bench. Meese described Kennedy’s Ninth Circuit record as “unblemished” and praised his early recognition of the overreach of the Supreme Court’s Commerce Clause decisions, decades before those became a national issue in the 2012 Obamacare challenge. Reagan was asked if the nomination of Kennedy meant that he had caved in to liberals. “When the day comes that I cave in to the liberals, I will be long gone from here,” he replied.59
Liberals in the media were of two minds. Linda Greenhouse, the Supreme Court reporter of the New York Times, observed that Laurence Tribe was a witness in support of Kennedy at his confirmation hearings, where he praised his willingness to recognize rights not spelled out in the Constitution and his rejection of originalism.60 Nonetheless, Greenhouse later described Kennedy’s first full term on the Court as “The Year the Court Turned to the Right.”61
When Justice William Brennan retired in 1990, President George H. W. Bush got his first chance to move the Court to the right. His chief of staff, John Sununu, pushed for David Souter, whom he had appointed to the Supreme Court of New Hampshire when he was governor and whose appointment to a federal appeals court he had secured earlier in Bush’s presidency. Souter had been introduced to Sununu by Warren Rudman, a liberal Republican senator from New Hampshire, who later bragged about surreptitiously getting the liberal on the Supreme Court.62 Sununu touted Souter’s light judicial record as a benefit, since he would have to win confirmation from a Democratic Senate. Only one person in the Justice Department, George Smith, even tried to vet Souter. While it was difficult to say much given the short paper trail, he was not encouraged.
When Souter was nominated, Sununu personally assured suspicious conservatives that he would be a “home run for conservatives” on the Court.63 But by the time the hearings opened, it was apparent that Souter’s nomination was a horrible mistake. His effusive praise for Brennan and the Warren Court alarmed conservatives. He quickly became one of the Court’s most reliably liberal votes. Many conservatives regard the appointment of this unknown jurist with no paper trail as Bush’s most consequential blunder.
The retirement of Justice Thurgood Marshall the following year gave Bush an opportunity to make amends for that mistake, and he tacked decisively to the right with the nomination of Judge Clarence Thomas of the D.C. Circuit. Leftist groups pounced immediately. The National Organization for Women held a press conference in New York, where the feminist activist Florynce Kennedy, joined by Patricia Ireland and Gloria Steinem, threatened, “We’re going to bork him. We’re going to kill him politically.” She added, graciously, “This little creep, where did he come from?”64