In 1987, Supreme Court Justice Lewis Powell announced his retirement from the Supreme Court. Powell was considered to be a moderate swing vote in close decisions.

President Ronald Reagan nominated Robert Bork who was serving in the United States Court of Appeals for the District of Columbia Circuit. Judge Bork was considered eminently qualified.

He held to the judicial philosophy of originalism which is that the Constitution should be interpreted based on the text of the Constitution and what it meant to a reasonable person at the time it was adopted.

The Constitution itself provided an avenue for making changes through a legislative process. His view stood in stark contrast to a judicial activist philosophy that sees the Constitution as a living document whose meaning changes with time.

Bork, like other originalists, held a very strict view of the judicial branch’s role to interpret the law. It was the role of the legislative branch to make the law.

When Reagan nominated Judge Bork to the Supreme Court, Democrats held a 55 to 45 majority in the Senate. Many of the Democrats in Congress at that time were conservative and often supported President Reagan’s initiatives.

Democrats did not want to see an originalist on the court. Their advances toward socialism did not come at the ballot box but through activist judges. If Bork were confirmed, there was fear that those activist decisions would be overturned.

A Democrat activist would later reflect on their predicament. “If this [confirmation] were carried out as an internal Senate debate, we would have deep and thoughtful discussions about the Constitution, and then we would lose.” (Joe Nocera, “The Ugliness Started With Bork”)

Democrats decided to take an aggressive strategy. Within 45 minutes of the President’s announcement, Senator Ted Kennedy gave a fiery speech on the Senate floor painting disastrous ruin for America if Bork were confirmed.

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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens. (C-Span Robert Bork’s America)

Kennedy’s speech became known as “Robert Bork’s America” and it set the tone for the proceedings. The Judiciary Committee voted against confirmation.

Some wanted Bork to step down at that point but he refused. He said that the deliberative process must be restored.

I am including his full statement at the end of this commentary along with President Reagan’s response. It is worth the read.

The Democrat strategy worked. The vote to confirm Bork failed by a vote of 58 to 42. Six Republican Senators voted against confirmation. Only two Democrats, David Boren of Oklahoma and Ernest Hollings of South Carolina voted to confirm.

A new word came into the American vocabulary. Oxford Dictionary defines “bork” as: “Obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.”

President Reagan then nominated Anthony Kennedy who was confirmed.

Now, here we are 30 years later. Anthony Kennedy became known as the moderate swing vote. He announced his retirement and President Trump nominated Brett Kavanaugh, a Judge from the United States Court of Appeals for the District of Columbia Circuit.

Three decades ago, Democrats defamed and vilified Robert Bork. Today, America is witnessing another attempt to “bork” Brett Kavanaugh.

Things are different today. The American people see through this spectacle of obstructionism, defamation, grandstanding, disorderly conduct, and foolishness. Thankfully, Republicans are not falling for the charade and steadily move forward in the confirmation process.

Brett Kavanaugh presented himself as a scholar and a statesman. He demonstrated a calm demeanor through the often chaotic hearings.

Since the retirement of Lewis Powell and nomination of Robert Bork, we have come full circle. This time though, Kavanaugh won’t be borked.

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Robert Bork’s Statement at Whitehouse and President Reagan’s Response – October 9, 1987

More than three months ago I was deeply honored to be nominated by the President for the position of Associate Justice of the Supreme Court of the United States.

In the 100 days since then, the country has witnessed an unprecedented event. The process of confirming justices for our nation’s highest court has been transformed in a way that should not and indeed must not be permitted to occur again.

The tactics and techniques of national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing, it is dangerous.

Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially according to law.

But when judicial nominees are assessed and treated like political candidates, the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of courts and to endanger the independence of the judiciary.

In politics, the opposing candidates exchange contentions in their efforts to sway voters. In the give and take of political debate, the choice will in the end be clear.
A judge, however, cannot engage. Political campaigning and the judge’s functions are flatly incompatible.

In 200 years no nominee for justice has ever campaigned for that high office. None ever should, and I will not.

This is not to say that my public life, the decisions I have rendered, the articles I have written, should be immune from consideration. They should not.

Honorable persons can disagree about those matters, but the manner in which the campaign is conducted makes all the difference.

Far too often the ethics that should prevail have been violated and the facts of my professional life have been misrepresented.

It is, to say no more, unsatisfying to be the target of a campaign that must of necessity be one-sided, a campaign in which the ”candidate,” a sitting Federal judge, is prevented by the plain standards of his profession from becoming an energetic participant.

Were the fate of Robert Bork the only matter at stake, I would ask the President to withdraw my nomination.

The most serious and lasting injury in all of this, however, is not to me. Nor is it to all of those who have steadfastly supported my nomination and to whom I am deeply grateful. Rather, it is to the dignity and the integrity of law and of public service in this country.

I therefore wish to end the speculation. There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions.

But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees.

For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored. In the days remaining, I ask only that voices be lowered, the facts respected and the deliberations conducted in a manner that will be fair to me and to the infinitely larger and more important cause of justice in America.

Text of Reagan’s Statement

WASHINGTON, Oct. 9 (AP) – Following is the text of a statement by President Reagan after Judge Robert H. Bork announced today that he would not withdraw his name as a nominee to the Supreme Court:

I am pleased by Judge Bork’s decision to go forward with his nomination for the Supreme Court. Over the last few weeks, there has been considerable discussion about Judge Bork. His opponents mounted an attack based on innuendos, mistruths and distortions to shield Bob Bork’s real record of integrity, decency, fairness and above all, judicial restraint.

Our efforts will be focused on setting the record straight with the American people. It is time to remove the special interests from the judicial selection process.

It is time to stop those who are determined to politicize the judiciary, and try to accomplish through the courts what they cannot accomplish through the legislature.

The American people want a Supreme Court justice who interprets the law, not makes it; who is concerned about victim’s rights, not just the rights of criminals. The time is now to set the record straight and to be accountable to the people, not to the special interests.